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2015 (3) TMI 358 - AT - Income TaxNon issuance of notice u/s 143(2) - Reassessment u/s 147 - Revenue contended that ground of non-issuance of notice u/s 143(2) by the A.O. was not raised either before the AO or before the Ld.CIT(A) - Held that:- In the instant case, admittedly, the notice under section 143(2) has been issued beyond the period of one year from the date of filing of the return. Further, it may be mentioned that omission on the part of the assessing officer to issue notice under section 143(2) cannot be a procedural irregularity and the same is not curable, and, therefore, the requirement of notice under section 143(2) cannot be dispensed with as already observed in Hotel Blue Moon (2010 (2) TMI 1 - SUPREME COURT OF INDIA). Thus no other alternative but to hold that, the AO has wrongly assumed jurisdiction under the Act, for all these Assessment Years. We also hold that, this defect in the assumption of jurisdiction by the Assessing Officer cannot be cured by taking recourse to the deeming fiction u/s 292 BB of the Act. With respect to the argument of the Ld.D.R. that, this contention has not been raised by the assessee, before the A.O. or the Ld.CIT(A), we hold that this is a legal issue and as all the facts are on record, this contention can be raised before us, by the assessee for the first time, as this is a jurisdictional issue. Thus we dismiss this contention of the Ld.D.R. as devoid on merit. - Decided in favour of assessee.
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