TMI Blog2018 (9) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... tistical purposes only. Disallowance u/s 14A - Held that:- We find that before the Assessing Officer also, assessee had asserted that it has neither earned any tax fee income and nor debited any expenditure relating to equity investment of ₹ 10,00,00,030/- made in the shares of Ginger Enterprises P. Ltd. See case of Cheminvest Limited vs. CIT [2015 (9) TMI 238 - DELHI HIGH COURT].We also find no error on the part of the CIT(A) in directing the AO to retain the suo moto disallowance made by the assessee in this regard if any. Therefore, in our view, the ground raised by the assessee as well as the Revenue is liable to be dismissed. Addition earned by the assessee on account of providing common amenities and maintenance charges from the tenants - Held that:- At the time of hearing, it was put across before the learned representative to establish that the impugned receipts by way of provision of amenities, etc. was contracted with the respective tenants by separate agreements. There was no material on record to establish the same and, therefore, factually speaking the amounts received by the assessee towards such amenities is to be taken as a part of rental arrangement. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred in any year prior to the previous year in which the change in share holding has taken place in case of a corporate assessee to the extent specified in the section. Only aspect that is sought to be emphasized before us by the appellant is that section 79 of the Act can be invoked only in the year when the assessee seeks carry forward and set off of a loss. In this context, the learned representative explained that having regard to the total income determined by the Assessing Officer in order passed u/s. 143(3) read with an order passed u/s. 154 of the Act, dated 12.06.2015, the current year income from business has been assessed at a loss and, no set off has been claimed for brought forward loss. It was therefore, contended that the instant year is not a correct year of determination of the impact of section 79 of the Act in as much as the same ought to be dealt with in the assessment of the assessment year in which the assessee actually claims the set-off of brought forward loss in the subsequent assessment year and not in the impugned assessment year. Therefore, as per the assessee, in the impugned assessment year the Assessing Officer could not have considered and directed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rried forward to the following year and set-off against the income of the subsequent year is liable to be determined by the Assessing Officer who deals with the assessment of such subsequent year. The Hon'ble Supreme Court further noted that a decision recorded by the Assessing Officer who computes the loss in a previous year that the loss cannot be set-off against the income of the subsequent year is not binding on the assessee in the subsequent actual year of set-off. Considered in this light, in our view, the Assessing Officer in the instant year had no jurisdiction to give a finding that the loss of ₹ 7,96,21,402/- cannot be carried forward and set-off against the income of the subsequent year. Therefore, such observations/directions of the Assessing Officer, in our view, are bereft of jurisdiction and are accordingly directed to be removed. So however, our aforesaid decision should not be understood as any reflection on the merit or otherwise of invoking of Sec. 79 of the Act prohibiting carry forward and set-off of loss in certain situations. The application of Sec. 79 of the Act shall be open to be considered by the Assessing Officer in the subsequent year while ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order and one pertinent point raised was that during the year under consideration, assessee has not earned any tax free income and, therefore, no disallowance u/s. 14A of the Act was merited. In this context, we find that before the Assessing Officer also, assessee had asserted that it has neither earned any tax fee income and nor debited any expenditure relating to equity investment of ₹ 10,00,00,030/- made in the shares of Ginger Enterprises P. Ltd. We find that the CIT(A) has determined the said ground as under: 9.3 I have carefully perused the assessment order and the submission of the appellant. It is seen that appellant has not received any tax free income and this fact is not disputed by the AO. The AO noted that the appellant suo moto disallowed the expenditure. Hence, I find force in the submission of the appellant. Therefore, AO is directed to restrict the disallowance made suo moto by the appellant. The ground of appeal n.3 is partly allowed. Notably, as per the CIT(A) in the absence of the assessee having received any exempt income, the disallowance u/s. 14A was not merited except to the extent of amount suo moto disallowed by the assessee. Against su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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