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2022 (4) TMI 679 - AT - Income TaxValidity of order u/s 143(3) - time limit for issue of notice u/s 143(2) - mandation of issuance of notice under section 143(2) within the prescribed time limit - notice u/s 143(2) by the AO should have been issued on or before 31st March, 2009 but the AO issued the notice under section 143(2) on 28th August, 2009 and served on the assessee on 02.09.2009 which was beyond the time limit prescribed under the IT Act, 1961 - HELD THAT:- We do not agree with this contention of the ld. D/R because in the case in hand what is absent is the issuance of notice under section 143(2) within the prescribed time limit and not the service of the notice issued by the AO is disputed by the assessee. Only in the case where the notice issued under section 143(2) was disputed by the assessee on the point of service of the said notice but the fact of issuance of notice is already available on record, in such a case if the assessee has participated in the assessment proceedings in response to the notice under section 143(2), then subsequently the assessee cannot take the objection of notice issued under section 143(2) was not properly served on the assessee. Since it is a case of non-issuance of notice within the prescribed time under section 143(2), therefore, the initiation of scrutiny proceedings itself was without jurisdiction conferred by the provisions of section 143 - See M/S. TRAVANCORE DIAGNOSTICS (P) LTD [2016 (11) TMI 76 - KERALA HIGH COURT] Thus when the AO has passed the assessment order without properly issuing notice as prescribed under section 143(2), then the assessment order is not sustainable in law and the same is invalid - Appeal of assessee allowed.
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