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TMI Blog2023 (3) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... essment orders in question were legally unsustainable. Hon ble Supreme Court in the case of ACIT vs Hotel Blue Moon [ 2010 (2) TMI 1 - SUPREME COURT] held that Omission on the part of the assessing authority to issue notice u/s 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. Thus assessment framed by the AO is held to be bad in law, the same is hereby quashed - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforementioned order of the Ld. CIT(A) dated 31.03.2013 6. That the Hon'ble ITAT Bench "E" vide their order bearing ITA No 3997/Del/ dated 23.05.2017 set aside the case to the file of the Ld. CIT(A) with an observation that a legal issue can be taken at any stage and with a direction to adjudicate on the claim of the appellant of non service of notice u/s 143(2) on them. That the Hon'ble Bench did not prefer to give any finding in respect of the addition of Rs.19,90,944/- as mentioned in ground No-2(b) above. 7. That in consequence of the aforesaid order of the Hon'ble ITAT Bench, the Ld. CIT(A) adjudicated on the claim of non service of notice u/s 143(2). 8. That the Ld. CIT (A) vide his order bearing ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake of clarity, the relevant contents of the written submissions are reproduced as under:- "In the above case, following material facts and relevant case laws may kindly be considered. On Service of Notice: It was held by Hon'ble Supreme Court in Atulbhai Hiralal Shah Vs DClt [SC] [2016] 73 taxmann.com 325 [SC] that where Assessing Officer had reopened assessment of assessee and sent notice to him through postal department at address contained in his PAN card, which was returned back with remark 'left', and assessee challenged reopening of assessment contending that remark 'left' was totally incorrect, since assessee had not joined postal department to question why remark 'left' was made, only on ground o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not save complete absence of notice. For Section 292BB to apply, the notice must have been emanated from the department. It is only the infirmities in the manner of service of notice that the Section seeks to cure. The Section is not intended to cure complete absence of notice itself" The clear proposition is that if notice is validly issued and followed by participation on the part of the assessee during the proceedings, the notice would be treated as served. 5. In view of the contention of the appellant is devoid of legal merits and deserves to be rejected. It is further requested that the arguments and case laws as discussed by the AO in the assessment order and by the Ld. CIT[ A] in the impugned order may a kindly be trea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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