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2016 (12) TMI 1410 - AT - Income TaxValidity of Notice under section 143(2) of the Act and the assessment thereunder - invalid service of notice - Held that:- Revenue has not been able to prove that it fulfilled its legal obligations to show what efforts Revenue made between the date of issue of notice on 23.10.2006 to date of service of notice by affixture i.e. 31.10.2006 to effect the service of the said notice under section 143(2) of the Act in a normal manner. No material was placed on record before us to show that any effort was made by the AO to serve the notice in a normal manner before service by affixture was done on 31.10.2006. In so far as the applicability or otherwise of section 292BB of the Act to the case on hand is concerned, the ITAT Special Bench Delhi in the case of Kuber Tobacco Products (I) Ltd. (2009 (1) TMI 304 - ITAT DELHI ) has held that section 292BB of the Act inserted by Finance Act, 2008 w.e.f. 01.04.2008 is not retrospective and would apply prospectively for and from A.Y. 2008-09. Further, in the case on hand, this section would not apply in view of the proviso to section 292BB of the Act, since the assessee has raised its objection to the validity of notice under section 143(2) of the Act vide letter 07.09.2007, admittedly filed with the AO on 07.09.2007 itself before completion of assessment proceedings on 29.11.2007. Thus we are of the considered view that since the alleged affixture of notice under section 143(2) of the Act dated 23.10.2006 on 31.10.2006 is not in accordance with the law and procedure, the said notice is rendered bad in law and therefore the AO had no power to assume jurisdiction to take up the assessee’s case for scrutiny. Consequently, the order of assessment framed under section 143(3) of the Act vide order dated 29.11.2007 for A.Y. 2005-06 on the basis of such invalid notice under section 143(3) of the Act is bad in law and ab initio void and is liable to be quashed. - Decided in favour of assessee
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