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2021 (12) TMI 869 - AT - Income TaxReopening of assessment u/s 147 - addition of bogus expenditure - non-issuance of notice under section 143(2) - Information received from DGIT (Investigation), Mumbai that assessee is one of the beneficiaries of bogus purchases shown from various entities managed by Rajendra K Jain - HELD THAT:- We find that on the Jurisdictional High Court in PCIT vs. Marck Biosciences Ltd. [2014 (11) TMI 812 - GUJARAT HIGH COURT] held that where notice under section 143(2) was issued to assessee prior to filing of return of income, said notice being invalid, assessment order passed in pursuance of same deserved to be set aside. CIT(A) in his order held that non-issuance of notice under section 143(2) of the Act is a curable defect, we find that Hon'ble Jurisdictional High Court in Marck Biosciences Ltd. [2019 (4) TMI 215 - GUJARAT HIGH COURT] also considered the provision of section 292BB and held from the language employed in section 292BB, which emerges that a notice would be deemed to be valid in three circumstances provided therein, namely where assessee has participated in the proceedings it would not be permissible him to raise objection that (i) notice was not served upon him; (ii) was not served upon him in time; & (iii) was served upon him in an improper manner and held that all the circumstances contemplated under section 292BB of the Act are in case where a notice has been issued, has either not been served upon the assessee or not served in time or has been served in an improper manner. The said provision clearly does not contemplate the case where no notice has been issued at all. Issuance of notice under section 143(2) of the Act prior to filing of return of income was invalid and in absence of valid notice under section 143(2) of the Act, the assessment order is rendered invalid. - Decided against revenue.
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