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2021 (5) TMI 7 - AT - Income TaxReopening of assessment u/s 147 - whether the notice issued under section 143(2) of the Act to the assessee barring time limitation is contrary to the provisions of the Act? - HELD THAT:- In the case of CIT Vs. Laxmandas Khandelwal [2019 (8) TMI 660 - SUPREME COURT] wherein it was held that according to section 292BB of the Act, if the assessee had participated in the proceedings, by way of legal fiction, notice would be deemed to be valid even there be infraction as detailed in the said section. The scope of the provision is to make service of notice having certain infirmities to be proper and valid if there was requisite participation on part of the assessee. It is, however, to be noted that the section does not save complete absence of notice. For section 292BB to apply, the notice must have emanated from the Department. It is only the infirmities in the manner of service of notice that section seeks to cure. The section is not intended to cure complete absence of notice itself. Since the facts on record are clear that no notice under section 143(2) of the Act was however issued by Department, the finding rendered by the High Court and the Tribunal and the conclusion arrived at were correct. As held by Kerala High Court in the case of Padinjarkara Agencies Pvt. Ltd., Vs. CIT [2017 (8) TMI 724 - KERALA HIGH COURT] after considering the judgment of Hotel Bluemoon cited [2010 (2) TMI 1 - SUPREME COURT] held that where adverse orders are passed against assessee only after affording assessee proper opportunity, then Assessment Order passed can be considered as valid. Being so, in our opinion, it is appropriate to remit the issue to the file of CIT(A) to examine whether there is proper service of notice under section 143(2) of the Act before 31.12.2012 in these cases to the assessee after seeing the case records and decide accordingly in the light of judgment of Hotel Bluemoon cited supra.
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