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2023 (11) TMI 1005 - KERALA HIGH COURTMaintainability of writ petition - validity of reopening of assessment on Non-service of notice u/s 143(2) - non-mentioning of the provision of Section 142(3) in the notice - as per revenue once the petitioner has challenged the assessment orders in appeals before the CIT(A) u/s 246 of the Act, there was no occasion for him to approach this Court challenging the very same assessment orders - HELD THAT:- This Court had permitted only to cure the technical defects, if any, and to file writ petitions afresh. However, this Court had not granted any liberty to the petitioner to withdraw the appeals filed before the CIT(A). Withdrawal of the appeals by the petitioner filed before the CIT(A) against the assessment orders, was not because of the liberty granted by this Court, but on his own volition. The petitioner could have challenged the assessment orders on merits, but it wanted to advantage of some technical issues and, therefore, instead of contesting the assessment orders on merits, the petitioner approached this Court. Hence, do not find that these writ petitions are maintainable. Non-service of notice u/s 143(2) of the Act is also liable to be rejected. In as much as the petitioner was issued notice in Annexure-R(a) and in pursuance to the said notice, the petitioner had participated in the proceedings for re-opening of the assessment orders, which is evident from the order sheet maintained before the assessing officer. Therefore, if the notice, Annexure-R(a) did not mention the provision under Section 143(2) of the Act, the same would not become invalid because of non-mentioning of the provision of Section 143(2). What is relevant is notice of hearing and the petitioner was issued notice of hearing. In substance, the notice in Annexure-R(a) was a notice under Section 143(2). Therefore, find no substance in the submission of petitioner that the petitioner was not served with notice under Section 143(2) of the Act, and therefore, the subsequent proceedings and assessment orders had become bad in law and are liable to be set aside. The judgment cited by the learned counsel for the petitioner in the case of Hotel Blue Moon (supra) is distinguishable on the facts of the present case. The technical issue raised by the petitioner is also not present in the facts of these cases. Therefore, these writ petitions are not maintainable and are liable to be dismissed. Considering the provisions of Sections 292B and 292BB of the Act, when the petitioner had participated in the proceedings in pursuance to the notice issued in Annexure-R(a), the petitioner, after finalisation of the assessment orders, cannot take the plea that the assessment orders are incorrect on the ground of non-mentioning of the provision of Section 142(3) in the notice. The assessment orders cannot be challenged on just technical ground, in view of the express provision of Sections 292B and 292BB of the Act. No substance in these writ petitions, which are hereby dismissed.
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