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2023 (4) TMI 229 - ITAT MUMBAIRevision u/s 263 - Disallowance of brought forward business loss as substantial change (more than 51%) in shareholding pattern - as per provisions contained u/s 79 the assessee company cannot set off its brought forward business loss of preceding assessment years which made the assessment order passed under section 143(3) dated 06/12/2019 erroneous insofar as it is prejudicial to the interest of the Revenue - HELD THAT:- Assessee drew our attention towards notice issued by the Assessing Officer during the assessment proceedings under section 142(1) of the Act requesting various details wherein a pertinent question has been put to the assessee that “There is substantial increase in share capital during the year, please furnish name and address of person who has invested in share capital”. Similarly, in another notice issued under section 142(1) AO put a question as to the “substantial increase in share capital during the year under consideration” and in response thereto, the assessee has duly replied, which has also been extracted in impugned order passed by Ld.PCIT. Thus factum of changes in the shareholding pattern has been duly disclosed by the assessee in its tax audit report (Form 3CA / 3CD) in the year under consideration - ultimate holding company was Sodexo SA, France. Moreover, when beneficial ownership is with ultimate holding company, loss cannot be disallowed. However, in the instant case, no such loss was claimed by the Assessee. PCIT has proceeded on wrong premise that the Assessing Officer has failed to do and did not conduct any enquiry qua the issue flagged by him - AO has passed the assessment order after enquiry and due verification on the basis of submissions and details furnished by the assessee by taking plausible view - Decided in favour of assessee.
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