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2015 (11) TMI 1859 - HC - Income TaxValidity of assessment - non issuing notice u/s 143(2) - Curable defect u/s 292BB - HELD THAT:- The contention of the Department that it is no longer open to the assessee to question the service of notice in view of the provision of s. 292BB of the Act cannot be accepted in as much as the said section came into existence w.e.f. 2008 whereas the present appeal is of the financial year 1997-98. Further, the Supreme Court DISTILLERS COMPANY LIMITED [2007 (4) TMI 200 - SUPREME COURT] has held that the jurisdiction of the AO starts if the notice is issued within 12 months from the end of the month when the return was filed. It has nothing to do with the service of the notice which is contemplated under s. 292BB of the Act. In view of the aforesaid authoritative decision of the Supreme Court, we are of the opinion that a substantial question arises for consideration which is based on the records and which does not require investigation of any facts and, therefore, in our view, we entertain the appeal on the aforesaid question of law. Preliminary objection raised by the learned counsel for the Department is accordingly rejected for the reasons stated aforesaid. In view of the admitted position that no notice u/s 143(2) of the Act was issued, we are of the opinion that the order of the Tribunal, the first appellate authority, and the assessment order cannot be sustained and are quashed. - Decided in favour of assessee.
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