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4.0 Setting off of unabsorbed depreciation against the assessed income 4.1 Without prejudice to the above, the Ld. AO erred in not setting off unabsorbed depreciation of Rs 48,32,999 with the assessed income of Rs 11,47,346 for AY 2014-15.

6. The Ld. Counsel for the assessee at the outset submitted that the Hon'ble Delhi High Court in the case of Spice Entertainment Limited Vs. CIT vide ITA No.475 and 476 / Del/2011 order dated 03.08.2011 has decided an identical issue and has held that the framing of assessment against the nonexistent entity / person goes to the root of the matter which is not a procedural irregularity but a jurisdictional defect as there cannot be any assessment against dead person. However, the Hon'ble High court has restored the issue to the file of the Assessing Officer to carry the assessment on the basis of those returns after taking the proceedings afresh from the stage of issuance of notice u/s 143 (2) of the IT Act by substantiating the name of the amalgamated company. However, such a course of action can be taken by the Assessing Officer only after it is still permissible as per law and has not become time barred. He accordingly submitted that since the Assessing Officer in the instant case has framed the assessment on a nonexistent company, therefore, the same being null and void, the addition made by the Assessing Officer and upheld by the CIT (A) should be deleted.