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2015 (7) TMI 83 - AT - Income TaxReopening of assessment - whether the assessment framed without issuing the notice u/s 143(2) of the Act is a valid assessment? - Held that:- Where notice u/s 143(2) of the Act is not issued to the assessee before framing the assessment u/s 143(3) of the Act, the AO does not have the jurisdiction to make the assessment. In the present case, the AO issued the notice u/s 148 of the Act and the assessee furnished the return of income in response to the said notice. Thereafter the AO asked the assessee to furnish certain details by issuing the questionnaire u/s 142(1) of the Act but nowhere issued the notice u/s 143(2) of the Act. Therefore, the assumption of jurisdiction for framing the assessment was invalid. Whether the provisions of section 292BB of the act come to the rescue of the department, even when the notice u/s 143(2) of the Act is not issued within the stipulated time? - Held that:- Section 292BB incorporates the principles of estoppel. It stipulates that an assessee, who has appeared in any proceeding and co-operated in any enquiry relating to assessment or reassessment shall be deemed to be served with any notice which was required to be served and would be precluded from objecting that the notice was not served upon him or was served upon him in an improper manner or was not served upon him in time. However, the proviso states that the principle of estoppels incorporated in the main section would not apply, if the assessee has raised objection in reply to the notice before completion of assessment or reassessment. In the present case, as we have already noted that the notice u/s 143(2) of the Act was neither issued nor served upon the assessee before making an order of assessment u/s 143(3) r.w.s. 147 of the Act. It is well settled that the issuance of notice u/s 143(2) of the Act is not procedural irregularities and the same is not curable, therefore, the requirement of issuance of notice u/s 143(2) of the Act cannot be dispensed with and no assessment can be framed u/s 143(3) r.w.s. 147 of the Act without issuance of notice u/s 143(2) of the Act. - Decided in favour of assessee.
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