2019 (2) TMI 1533

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....) was correct in allowing assessee's claim of set off of brought forward losses. 2.0 Brief facts of the case are that the assessee company is engaged in the manufacturing and trading of edible oils. Another company M/s K.N. Guruswamy Oil Mills Limited (KNG) was amalgamated with the assessee company on 1.4.2007 pursuant to the amalgamation being approved by the Hon'ble High Court of Delhi vide orders dated 8th September, 2008 and 25th September, 2008. The return of income for the captioned year was filed declaring total income at Nil. At the time of amalgamation, M/s KNG had accumulated losses to the tune of Rs. 7,07,28,268/- which included accumulated loss of Rs. 1,29,88,099/- and unabsorbed depreciation to the tune of Rs. 5,77,40,169/-.....

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....he benefit of set off of accumulated losses without considering the objection of the Assessing Officer that the conditions prescribed in Section 72A had not been complied with. It was also argued by the Ld. Sr. DR that the Ld. CIT (Appeals) had admitted additional evidence without confronting the Assessing Officer with such evidence and thereby contravening the provisions of Rule 46A of the Income Tax Rules, 1962. 4.0 In response, the Ld. AR submitted that the issue stood covered in favour of the assessee by the order of the ITAT in assessee's own case for assessment year 2011-12. A copy of the said order was also placed before the Bench. The Ld. AR further submitted that the Ld. CIT (Appeals) had not admitted any additional evidence in ....

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....amation. The proviso appended to Rule 9C (a) says that the Central Government, on application made by the amalgamated company, may relax the condition of achieving the level of production and the period during which the same is to be achieved or both in suitable cases having regard to the genuine efforts made by the amalgamated company to attain the prescribed level of production and circumstances preventing such efforts from achieving the same. 5.2 An identical issue came up before the ITAT in assessee's own case for assessment year 2011-12 also and vide order dated 5.11.2018 in ITA No. 5949/Del/2016, the ITAT decided the issue in favour of the assessee. The relevant observations of the ITAT are contained in Para 6 and 7 of the said ord....