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2019 (5) TMI 1557 - HC - Income TaxNon issuance of Notice u/s 143(2) within the time- validity of assessment - curable defect u/s 292BB - HELD THAT:- As could be seen from the material on record, the assessee neither appeared nor co-operated for inquiry during assessment. It is an exparte assessment concluded by the respondent–Authority, rejecting the time sought for by the petitioner to file objections to the Notices issued u/s 143(2) and u/s 142(1). It is clear that service of notice has to be made on the assessee within a period of six months from the end of financial year in which return is furnished, not from the date or issuance of notice. The relevant factor is the date of service of Notice and the same if to be considered in accordance with the e-Portal maintained by the Department, an exception has to be taken with the order impugned herein. In such circumstances, Section 292BB would not attract and the arguments of the learned counsel for the revenue deserves to be negated. It is well settled legal principle that omission on the part of the Assessing Authority to issue proper notice under Section 143(2) of the Act cannot be a procedural irregularity and the same is not curable, which is referred in Hotel Blue Moon’s case [2010 (2) TMI 1 - SUPREME COURT] . The flaw found in the notice issued u/s 143(2) goes to the root of the matter and the same cannot be cured or dispensed with, to consider the case on merits. The Assessment Order is passed based on the invalid Notice, which does not survive. Notice is the foundation. Assessment Order built upon such defective notice would certainly fall to the ground. Writ petition is allowed.
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