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2022 (11) TMI 895 - HC - Income TaxValidity of assessment proceedings - Omission on the part of AO to issue notice under Section 143(2) - curable defect u/s 292BB - HELD THAT:- Tribunal was fully justified in allowing the assessee’s appeal by taking note of the decision of this Court in the case of Principal Commissioner of Income Tax vs. Oberoi Hotels Pvt. Ltd. [2018 (6) TMI 1472 - CALCUTTA HIGH COURT] . In the said decision it was held that the notice under Section 143(2) of the Act was required to be mandatorily issued and Section 292BB had no manner of operation. The earliest of the decision is that of the Hon’ble Supreme Court in the case of Assistant Commissioner of Income Tax & Anr. vs. Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT]wherein it was held that if an assessment is to be completed under Section 143(3) read with Section 158BC, notice under Section 143(2) should be issued within one year from the date of filing of the block return. Omission on the part of the assessing authority to issue notice under Section 143(2) cannot be a procedure irregularity and is not curable and, therefore, the requirement of notice under Section 143(2) cannot be dispensed with. Very recently, the Hon’ble Supreme Court in the case of Assistant Commissioner of Income Tax vs. S.K. Industries [2022 (7) TMI 1345 - SC ORDER] dismissed the Special Leave Petition filed by the revenue against the order of the High Court holding that where the assessing officer of a particular Circle passed an assessment order under Section 143(3) without issuing notice under Section 143(2) and only in pursuance with the notice issued under Section 143(2), he had no jurisdiction over the assessee at the relevant time and such assessment order was liable to be set aside. Thus Tribunal was fully justified in allowing the assessee’s appeal.
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