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TMI Blog2015 (8) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... olding that section 292BB of the Act is not applicable to the present case and omission on the part of AO to issue notice u/s 143(2) of the Act within prescribed time limit is not a procedural irregularity and the same is not curable, therefore, the CIT(A) was justified in holding that the assessment made without notice u/s 143(2) of the Act within prescribed limit was void ab initio. Decided against revenue. - ITA No. 1306/DEL/2011 - - - Dated:- 30-1-2015 - G D Agrawal, Vice President Chandramohan Garg, JM,JJ. For the Appellant : Smt A Mishra, CIT DR For the Respondent Rep by: Shri Rajiv Saxena, Adv. ORDER Per: Chandramohan Garg, JM. This appeal has been preferred by the revenue against the order of the CIT(A)-I, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itio in the AO required the assessee and allowed opportunity to produce or cause to be produced evidence in support of particulars shown in return of income within the meaning of section 143(2) during Assessment proceedings and such procedural deficiency being curable under section 292 BB of Income Tax Act, 1961. 3. We have heard arguments of both the sides and carefully perused the relevant material placed on record before us. Ld. DR submitted that in the facts and circumstances of the case, the first appellate authority has grossly erred in holding that the assessment order is void ab initio for failure to issue notice u/s 143(2) of the Income Tax Act within stipulated time whereas it was beyond control of the AO to issue notice with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /w section 158BC of the Act, then notice u/s 143(2) should be issued within one year from the date of filing of the block return. Ld. Counsel further submitted that omission on the part of the assessing authority to issue notice u/s 143(2) of the Act cannot be a procedural irregularity and is not curable, therefore, the requirement of section 143(2) cannot be dispensed with. Supporting the impugned order, ld. Counsel of the assessee also contended that omission on the part of AO to issue notice u/s 143(2) of the Act within prescribed time cannot be held as procedural irregularity which is not curable u/s 292BB of the Act. 6. On careful consideration of above submissions, we note that the CIT(A) allowed relief for the assessee with follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law I have no alternative but to allow the appeal of the appellant on this issue that the assessment made without the notice u/s 143(2) in time was ab initio . 7. At the outset, we respectfully take notice of the decision of Hon ble Apex Court in the case of ACIT vs Hotel Blue Moon (supra) wherein it was held that omission on the part of AO to issue notice u/s 143(2) of the Act cannot be a procedural irregularity and the same is not curable and hence, the requirement of notice u/s 143(2) of the Act cannot be dispensed with. However, ld. Counsel of the assessee has pointed out that section 292BB has been inserted by Finance Act, 2008 and the same is effective from 1.4.2008 only, therefore, the said section is not applicable in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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