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TMI Blog2015 (12) TMI 1613X X X X Extracts X X X X X X X X Extracts X X X X ..... lowance of expenses of Rs. 12,15,060/- made under section 40(a)(ia) of the income tax Act, 1961 ('the Act') as same had been already disallowed in the computation and it is mentioned in the written submission. 2) On the facts and in the circumstances of the case, the learned CIT(Appeals) -38, Mumbai erred in law and in facts in not adjudicating on double disallowance of expenses of Rs. 5,300/- made under section 40(a)(ia) of the income tax Act, 1961 ('the Act') as same had been already disallowed in the computation and it is mentioned in the written submission. 3) On the facts and in the circumstances of the case, the learned CIT(Appeals) erred in law and in facts in rejecting claim of your appellant for set-off of brought forward losse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 223/- 2 Machinery hire charges 9,71,463/- 3 Testing charges 20,374/- Total A. 12,15,060/- Item debited to the work in progress Audit Fee 68,913/- Machinery hire charges 5,00,450/- Testing charges 7,536/- Total B . 5,76,899/- Machinery hire charges on which TDS not deducted 5,300/- Total (A+B+C) 17,97,259/- TABLE C Sl. No. Particulars Amount 1 Machinery hire charges 13,49,117/- 2 Hire charges on which TDS not deducted 5,300/- Total 13,54,417/- 4. The ld. CIT(A) did not allow any relief on account of double deduction of Rs. 12,30,374/- as claimed by the assessee and hence, the assessee is in appeal before us. 5. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secondly by the A.O. We, therefore, delete the disallowance/addition of Rs. 12,20,360/- by allowing the ground no.1 & 2 in favour of assessee. 7. The third ground relates to confirmation of rejection of assessee's claim for setting off of brought forward losses of Rs. 63,209/- by CIT(A), whereas there is no change in the beneficial shareholding consequent to change in shareholding of the assessee company. 8. The brief facts of the case are that the assessee claimed Rs. 63,902/- on account of brought forward losses. The ld. A.O. did not allow the claim by holding that there was a change of more than 51% in the shareholding of the assessee during the previous year and therefore, the losses incurred prior to previous year were not allowed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... losses u/s.79 of the Act amounting to Rs. 63,902/-. The ld. A.R. placed the reliance on a number of decisions, namely, DCIT vs. Select Holiday Resort P. Ltd., ITAT Bench 'G' Delhi in ITA No.1184/Del/2008, A.Y. 2004-05, which was confirmed by Hon'ble Delhi High Court and reported in (2013) 35 taxmann.com 368 (Delhi), CIT vs. AMCO Power System Ltd. in ITA No.766 of 2009 & Others, order dated 07th October, 2015 and AMCO Power System Ltd. vs. ITO, ITAT, 'B' Bench, Bangalore in ITA No.889/Bang/2007, A.Y. 2003- 04. 8.2 We have heard the rival submissions and material on record. We find that shareholding pattern of the assessee company remained in the same group as is clear from the above table i.e. before transfer M/s. Lodha Developers P. Ltd. w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble Court has held that "It is evident that during the earlier period 98% of the assessee's share were held by IIPL the holding company, which was amalgamated with the assessee company. However, after merger of the shareholder of the IIPL continued to be shareholder in the assessee company. Thus, the shareholders beneficially entitled to 98% of the shares continued to be same. In these circumstances, prohibition of carrying forward losses placed by Section 79 does not operate. The same issue was also come up before Karnataka High Court in the case of CIT vs. AMCO Power System Ltd. in ITA No.766 of 2009 & Others, order dated 07th October, 2015 and the Hon'ble High Court has affirmed the same. 8.3 The case of the assessee is squarely ..... X X X X Extracts X X X X X X X X Extracts X X X X
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