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2019 (4) TMI 671 - ITAT MUMBAIPassing of order of assessment in non existing company - ‘UTV Tele Talkies Limited’ was merged with its ultimate holding company namely ‘UTV Software Communications Ltd.’ w.e.f. 01.04.2013 - AO has admitted in his remand report that he had knowledge of the fact the assessee company got merged with its ultimate holding company - Additional Ground of appeal - HELD THAT:- Communications filed by the assessee along with evidences are speaking loudly that the assessee discharged its burden while failure to bring on record successor in interest during assessment proceedings was on the part of the Revenue. The AO in its assessment order vide para 4.2 and 4.3.1 has admitted to having knowledge offactum of merger of ‘UTV Tele Talkies Limited’ with its ultimate holding company ‘UTV Software Communications Limited’, which is reiterated by the AO in his remand report filed on the direction of learned CIT(A) during appellate proceedings. The AO has not conducted any prima facie enquiry as is contemplated u/s 170 of the 1961 Act read with Order 22 Rule 10 of CPC to bring on record successor in interest, despite several intimations given by the assessee to the AO as to the amalgamation of „UTV Tele Talkies Limited’ with its ultimate holding company ‘UTV Software Communications Limited’ during assessment proceedings. The non conducting of prima-facie enquiry by the AO to bring on record successor in interest as is contemplated u/s 170 read with Order 22 Rule 10 of CPC and framing of an assessment on a non existent entity is fatal keeping in view factual matrix of the case as discussed by us in preceding para’s of this order. In the instant case based on factual matrix before us, we are afraid that an assessment order passed by the AO dated 01.02.2016 u/s 143(3) of the 1961 Act is suffering from a legal infirmity as an assessment is framed by the AO against a non existent entity despite being informed vide several communications and a complete failure by the AO to bring on record successor in interest, thus in our considered view assessment order dated 01.02.2016 passed by the AO u/s 143(3) is not sustainable in the eyes of the law liable to be quashed as even provisions of Section 292B of the 1961 Act cannot save it from being quashed as this is a jurisdictional legal infirmity which goes to the root of the matter - assessment order quashed
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