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2013 (1) TMI 678 - AT - Income TaxRe opening of assessment - no notice under section 143(2) has been issued - DR argued that Section 292BB comes to the rescue of revenue whereby the requirement of issuing notice u/s 143(2) can be dispensed with - Held that:- ITAT vide its order dated 11th Feb. 2011 had already given a finding that 143(2) notice was mandatory & CIT (A) has recorded a finding of fact that notice u/s 143(2) of the IT Act, was not issued. Rescue under Section 292BB is not allowed as the said ection was inserted by Finance Act 2008 w.e.f. 1.4.2008 and Hon’ble Delhi High Court in the case of CIT Vs. Mani Kakar (2008 (10) TMI 565 - HIGH COURT OF DELHI) had held that provisions of Section 292BB are applicable from assessment year 2008-09 and the cases under consideration relates to assessment years 2005-06 and 2006-07. Similarly in the case of ITO Vs. Nasemen Farms P. Ltd. (2010 (9) TMI 903 - ITAT DELHI) has held that provisions of Section 292BB are applicable only from assessment year 2008-09 and also do not apply where there is failure to issue notice as jurisdiction to assess arises only after the notice has been issued. Moreover in the case of Alpine Electronics Asia P. Ltd. Vs. Director General of Income Tax [2012 (1) TMI 100 - DELHI HIGH COURT] held that notice u/s 143(2) is mandatory in reassessment proceedings and it is not a procedural requirement. Thus reassessment proceedings completed in above cases without issuing of necessary notice u/s 143(2) were bad in law and hence were void ab initio - appeals filed by assessee are allowed.
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