TaxTMI 
TaxTMI 
2026 (4) TMI 1393
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....f income was e-filed on 29.09.2017, declaring NIL income. Thereafter, in terms of the order passed by National Company Law Tribunal ("NCLT") approving the scheme of merger with appointed date on 01.04.2016, the assessee e-filed revised return on 29.03.2019 wherein assessee has declared income of INR 38,86,25,756/- under normal provision of the Act. The case of the assessee was selected for scrutiny and assessment was completed by disallowing the set off of brought forward business of INR 4,02,40,643/-. 3. Aggrieved by the said order, the assessee filed an appeal before Ld.CIT(A) wherein the assessee has made fresh claim of depreciation of INR 22,33,986/- through revised computation before the AO which was not allowed. 4. Ld.CIT(A) in terms of the order dated 04.12.2023 has partly allowed the appeal of the assessee where the claim of assessee of set- off of brought forward unabsorbed losses u/s 79 of the Act was allowed and further claim of depreciation in terms of revised computation of income of INR 22,33,986/- made through revised return before the AO which was also allowed. 5. Aggrieved by the said order, the Revenue is in appeal before the Tribunal by raising various G....
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....his Chapter, where a change in shareholding has taken place during the previous year in the case of a company, not being a company in which the public are substantially interested, no loss incurred in any year prior to the previous year shall be carried forward and set off against the income of the previous year, unless on the last day of the previous year, the shares of the company carrying not less than fifty-one per cent of the voting power were beneficially held by persons who beneficially held shares of the company carrying not less than fifty-one per cent of the voting power on the last day of the year or years in which the loss was incurred: Provided that even if the said condition is not satisfied in case of an eligible start-up as referred to in section 80IAC, the loss^50 incurred in any year prior to the previous year shall be allowed to be carried forward and set off against the income of the previous year if all the shareholders of such company who held shares carrying voting power on the last day of the year or years in which the loss was incurred, continue to hold those shares on the last day of such previous year and such loss has been incurred during the pe....
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.... in aggregate.] ^52[(3) Notwithstanding anything contained in sub-section (2), if the condition specified in clause (f) of the said sub-section is not complied with in any previous year after the completion of strategic disinvestment, the provisions of sub-section (1) shall apply for such previous year and subsequent previous years.] Explanation .- For the purposes of this section (i) a company shall be a subsidiary of another company, if such other company holds more than half in nominal value of the equity share capital of the company; 52[(ia) "erstwhile public sector company" shall have the same meaning as assigned to it in clause (ii) of the Explanation to clause (d) of sub-section (1) of section 72A; (ib) "strategic disinvestment" shall have the same meaning as assigned to it in clause (iii) of the Explanation to clause (d) of sub-section (1) of section 72A;] (ii) "Tribunal"^53 shall have the meaning assigned to it in clause (90) of section 2 of the Companies Act, 2013 (18 of 2013).] 48. Substituted by the Finance (No. 2) Act, 2019, w.e.f. 1-4-2020. Prior to its substitution, section 79, as earlier amended by the D....
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....ompany subject to the condition that fifty-one per cent shareholders of the amalgamating or demerged foreign company continue to be the shareholders of the amalgamated or the resulting foreign company: Provided also that nothing contained in this section shall apply to a company where a change in the shareholding takes place in a previous year pursuant to a resolution plan approved under the Insolvency and Bankruptcy Code, 2016 (31 of 2016), after affording a reasonable opportunity of being heard to the jurisdictional Principal Commissioner or Commissioner." 49. For relevant case laws, see Taxmann's Master Guide to Income-tax Act. 50. For the meaning of the term "loss", see Taxmann's Direct Taxes Manual, Vol. 3. 50a. Substituted for "seven" by the Finance Act, 2023, w.e.f. 1-4-2023. 51. Inserted by the Finance Act, 2021, w.e.f. 1-4-2022. 52. Inserted by the Finance Act, 2022, w.e.f. 1-4-2022. 53. For definition of "Tribunal" under section 2(90) of the Companies Act, 2013, see Appendix. Section 79 of ITA 1961 was introduced as an anti-abuse provision to cu curb attempts at transferring losses incurred by....
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.... Condition 1 - The taxpayer is a company in which the public are not substantially interested. Condition 2 - The persons beneficially holding 51 per cent of the voting power on the following two dates are different: a. on the last day of the previous year in which the loss was incurred; b. on the last day of the previous year in which the company wants to set off the brought forward loss. If the above two conditions are satisfied, brought forward loss cannot be set off. If the change in the shareholding did not result in holding voting power of 51 per cent or it was established that the shares of the company carrying not less than 51 per cent of the voting power were beneficially held by the same persons, both on the last day of the previous year as well as the last day of the year or years in which the loss was incurred, it could be presumed that there was no change in the control over the company and the disqualification imposed on the company because of the change in its shareholding would stand removed. As can be seen, there is no change in the shareholding pattern on 31/03/2017 wrt AY 2013-14 to AY 2015-16. It has also been....
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....2006] 157 Taxman 1 (SC). It is observed that in the said judgement, Hon'ble Supreme Court though held that assessee is not entitled to make additional claim without filing return of income or revised return of income however, the hon'ble court further observed that this has not impinged the right of the appellate authorities who can entertain additional claim. Ld.CIT(A) after considering these facts and by placing reliance on the judgement of Hon'ble Jurisdictional Delhi High Court in the case CIT vs Sam Global Securities Ltd. reported in (2014) 360 ITR 682 (Del.) and further placing reliance on the judgement of Hon'ble Madras High Court in the case of CIT vs Abhinitha Foundation Put. Ltd. reported in 83 taxmann.com 100 (Mad.) has allowed the additional depreciation to the assessee. 11. Before us, revenue has placed reliance on the judgment of Goetz India (supra) which as observed above, only restrict the allowance of additional claim with original or revised return of income before the AO and does not restrict the power of the appellate authorities to entertain the additional claim of deduction even though no revised return was filed. In the case of CIT v. Jai P....
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....Court in the case of NTPC Ltd. (229 ITR 303); UCO Bank (237 ITR 889) and in the case of Shelly Products and Anr. (261 ITR 367) and various decisions and Circulars has held as under: "Having regard to these decisions, in our view the order of the CIT(A) cannot be found fault with. The learned Departmental Representative to the query from the Bench has fairly admitted that there is nothing in Goetze (India) Ltd., which prevents the Tribunal from entertaining any fresh claim if the same can be entertained in the light of the available material on the face of the record. Anything to the contrary of the proposition will only negate the principle laid down by the Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. (supra). We therefore confirm his order. It may be mentioned that we have taken this view after considering the fact that in all other years the department has accepted these expenses and allowed deduction as claimed by the assessee" 14. In view of above discussion and in the circumstances of the case and by respectfully following the judgement of hon'ble Supreme court, hon'ble jurisdictional high court and of the coordinate bench of Tri....