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2023 (2) TMI 449 - AT - Income TaxReopening of assessment u/s 147 - non-issuance of notice or non-service of notice within time or service of notice in improper manner - As argued no notice has been issued u/s. 143(2) - HELD THAT:- Issuance of notice u/s. 143(2) before passing an assessment order u/s. 143(3), is mandatory and if no notice has ever been issued u/s 143(2) of the Act, then as per legal fiction as enumerated u/s. 292BB of the Act as well, the participation in the assessment proceedings and/or not challenging the assessment proceedings before passing Assessment order or Appellate proceedings before Ld. Commissioner, on the ground of non-issuance of notice or non-service of notice within time or service of notice in improper manner u/s. 143(2) of the Act, would not validate the Assessment order and would also not curtail the rights of the Assessee to challenge the same on the point of notice u/s 143(2) of the Act, before the higher Court(s). Coming to the instant case, in the assessment order, in reply given by the Assessing Officer on dated 01.01.2015 to the application dated 29.12.2014, it has been mentioned that there is no notice issued u/s. 143(2) - we realize that it is just a reply but not the determination of the facts by which it can be presumed that no notice u/s. 143(2) of the Act has ever been issued to the Assessee in the assessment proceedings. Hence, we deem it appropriate to remit the additional grounds/issue raised by the Assessee before us, to the file of the ld. Commissioner for adjudication by examining the facts qua notice u/s 143(2) of the ACT.
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