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2022 (1) TMI 1088 - AT - Income TaxValidity of assessment - absence of issuance of notice u/s. 143(2) within period of limitation - whether curable defect u/s 292BB - HELD THAT:- The jurisdiction by the Ld.AO is founded on issuance of notice u/s. 143(2). The notice u/s. 143(2) is a mandatory notice and is to be issued within the period prescribed under law. For year under consideration, limitation period expires within six months from the end of the Financial Year in which the return of income has been filed. In the present facts, the limitation period expired on 30.09.2013. Section 292BB of the Act contemplates situations of irregularities wherein the notice has been served to the assessee in time and in accordance with the provisions of this Act. The present case assessee has not received the notice u/s. 143(2) in time and therefore the argument raised by revenue cannot be appreciated. In case of Hotel Blue Moon reported in (2010) 321 ITR 362 [2010 (2) TMI 1 - SUPREME COURT] wherein Hon’ble Supreme Court held that an omission on part of the Assessing Officer u/s. 143(2) cannot be procedural irregularity and the same is not curable. As the notice was not issued within the period of limitation, the empathetic statement of law in the absence of issuance of notice u/s. 143(2) within the period of limitation by the revenue would therefore inure to the benefit of the assessee. Statute make its imperative that notice u/s. 143(2) is to be issued within the period of limitation and any omission or failure would be hit at the root of the jurisdiction applying the principles laid down by the Hon’ble Supreme Court in various judgments. Accordingly, we hold the assessment order passed by the Ld.AO to be bad in law and the same is quashed.- Decided in favour of assessee.
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