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2012 (8) TMI 804 - DELHI HIGH COURTEntitlement to carry forward losses from the previous year 2001-02 and 2002-03 u/s 79 - whether the company-investors came within the description of those owning “not less than 51% of the voting power” beneficially through the two individual shareholders - Held that:- As at the time of original incorporation (within the assessment year 2000-01) on 16.8.2000, the arrangement between the shareholders and real owner i.e. foreign investor companies, was always that the former were to facilitate the process awaiting approval. While such conclusion is permissible in law, lack of any discussion in the present case by the lower authorities should have led the Tribunal to either examine or remand the matter for reconsideration. As appears from a reading of the Tribunal’s order and FEMA order, at the time of incorporation, the share capital was Rs. 2,000/- and the foreign investors infused Rs.49.90 lakhs during the subsequent assessment year which was treated as share application money and later appropriated as share capital after allotment of shares to the foreign investors, thus this disclosed arrangement is not forthcoming from the record , thus the matter has to be remitted to the AO for reconsideration of the entire record and returning findings with specific reference to the arrangement, if any, which existed between original shareholders of the company and the foreign investors - in favour of assessee by way of remand.
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