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2023 (9) TMI 910 - AT - Income TaxValidity of reopening of assessment - allegation of issuing of statutory notice under Section 142(1) - whether curable defect u/s 292BB? - HELD THAT:- In absence of notice u/s 143(2) of the Act, the assessment framed u/s 143(2) r.w.s 147 of the Act is liable to be held as invalid and thus no addition on the foundation of such invalid assessment can be sustained. According to Section 292BB of the Act, if the assessee had participated in the proceedings, by way of legal fiction, notice would be deemed to be valid even if there be infractions as detailed in said Section. The scope of the provision is to make service of notice having certain infirmities to be proper and valid if there was requisite participation on part of the assessee. It is, however, to be noted that the Section does not save complete absence of notice. For Section 292BB to apply, the notice must have emanated from the department. It is only the infirmities in the manner of service of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself. Since the facts on record are clear that no notice under Section 143(2) of the Act was ever issued by the Department, this is not curable defect u/s 292BB. Thus reassessment order passed u/s147 r.w.s 143(3) was bad in law since the required notice under Section 143(2) of the Act not issued by the Assessing Officer which is prerequisite and mandatory under the provisions of Income Tax Act, however the assessment have been completed without issuing of the impugned notice. Decided in favour of assessee.
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