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2024 (1) TMI 999 - AT - Income TaxValidity of the assessment order issued in the absence of issuance of notice u/s 143(2) - protection u/s 292BB eligible or not? - HELD THAT:- It is imperative from the record that the assessee has not been issued with the notice u/s 143(2) of the Act. The said fact of non-issuance of notice u/s 143(2) of the Act has been admitted by CIT(A) in its order. We have also gone through the assessment order and other materials and found that no notice u/s 143(2) of the Act was issued to the assessee. It is now well settled law that if the notice u/s 143(2) of the Act is not issued to the assessee before completion of the assessment, then the assessment is not sustainable in the eyes of law and deserve to be cancelled - See Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT] Society For Worldwide Interbank Financial Telecommunications [2010 (4) TMI 43 - DELHI HIGH COURT], M/s Panorama Builders Pvt. Ltd [2012 (8) TMI 955 - GUJARAT HIGH COURT]. Eligibility of protection u/s 292BB - The said Section 292BB of the Act deals with (a) non service of notice (b) non service of notice in time (c) service of notice in an improper manner- but in the present case the issue is regarding non-issuance of notice itself and there is nothing on record to prove that the notice u/s 143(2) of the Act has been issued by the Assessing Officer. Therefore, in our considered opinion, the protection under section 292BB of the Act is not available to the Department in the case on hand. Thus as Department has not produced any evidence to show that the notice u/s 143(2) of the Act has been issued to the assessee, the assessment orders passed for the assessment years 2009-10 to 2012-13 are hereby quashed.
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