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2019 (9) TMI 499 - AT - Income TaxValidity of Assessment - Proceedings initiated after search - instead of issuing notice u/s 153C, notice was issued u/s 147/148 - Assessment order passed u/s 143(3) - no notice under section 143(2) of the Act has been issued to assessee - alternate for completing the assessment under section 144 - HELD THAT:- Once no notice under section 143(2) of the Act has been issued, then no assessment can be completed under section 143(3) of the Act. Clause (a) to section 144(1) of the Act talks of failure to file any return of income under section 139(1) of the Act or under sub-sections (4) or (5) of the said section. Clause (b) talks of failure to comply with all terms of notice issued under sub-section 142(1) of the Act and clause (c) talks of failure to comply with the terms of notice issued under section 143(2) of the Act. In such scenario, the Assessing Officer is empowered to pass an order to the best of his judgment to determine the total income or loss of assessee for the relevant assessment year. In the facts of present case, where the assessee had failed to file any return of income under any of the provisions of section 139 and had failed even in terms of notice issued under section 142(1) of the Act, then the provisions of section 144 are attracted and the AO has the power to pass an order to the best of his judgment. The third condition of having filed return of income and not complying with notice issued under section 143(2) do not apply to the present facts. In such scenario, we hold that the order passed under section 143(3) r.w.s. 147 of the Act suffers from infirmity and the Act itself provides an alternate for completing the assessment under section 144 Whether the defect in applying the said section is curable under section 292B of the Act or not? - Section 292B of the Act cannot be pressed into action to cure the defect in the assessment made in the present case. Accordingly, we hold that assessment order passed in the present case is both invalid and bad in law. Thus, the additional ground of appeal raised by assessee is allowed.
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