TMI Blog2015 (12) TMI 1613X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal before him allowed relief in respect of ₹ 5,76,899/-as mentioned in Table B (Total B) meaning thereby that double disallowance in respect of ₹ 12,20,360/- (Rs.12,15,060 + 5300) as which stands added to the total income of the assessee suo motto on the basis of tax audit report. On the basis of these facts, it is apparent that the disallowance in respect of ₹ 12,20,360/- has been made twice, first by the assessee on his own and secondly by the A.O. We, therefore, delete the disallowance/addition - Decided in favour of assessee Rejection of assessee’s claim for setting off of brought forward losses - Held that:- As decided in COMMISSIONER OF INCOME TAX Versus SELECT HOLIDAY RESORTS PVT LTD. [2013 (1) TMI 187 - DELHI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 ₹ 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 losses of ₹ 63,902/- although there is no change in beneficial shareholding consequent to change in shareholding of appellant company. 2. Ground no.1 2 relate to double disallowance of ₹ 12,15,060/- and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 6 of the assessment order thereby resulting into double disallowance of the same expenses on account of non deduction of TDS amounting to ₹ 17,97,259/- and ₹ 13,54,417/- are as under: TABLE B Sl. No. Particulars Amount 1 Audit Fee 2,23,223/- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by authorities below. 6. We have heard the rival submissions and material on record. We find that the assessee has itself disallowed and added to its income ₹ 12,30,374/- while filing the return of income on the basis of note in clause 17(f) of the tax audit report as per Table A (supra). We further note from the comparative statement of disallowance u/s.40(a)(ia) of the Act that the A.O. again disallowed and added ₹ 17,97,259/- to the income of assessee as stated in para 6 of the A.O. order, the break up of which is given in Table B (supra). The ld. CIT(A) while disposing of the appeal before him allowed relief in respect of ₹ 5,76,899/-as mentioned in Table B (Total B) meaning thereby that double disallowance in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us that there was no change in the beneficial shareholding of the company by filing details of shareholding pattern as on 31.03.2007 before transfer of shares and shareholding pattern after transfer of shares as under: The ld. A.R. submitted that since the 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. was holding 9,994 shares out of 10,000 shares in each of the company M/s. Lodha Land Developers P. Ltd. (Assessee) and Lodha Attentive Developers Farms Pvt. Ltd. After the transfer of shareholding pattern the ownership of share holding also remained with Lodha Developers P. Ltd. which was holding 9,994 shares out of 10,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs Farms Pvt. Ltd. was holding 9,994 shares out of 10,000 shares in the assessee company. Thus, it is clear that the overall shareholding remained within the group. In the case of 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), it was held that there was no change in the management of the company which remained with the same family (set off persons) who was earlier exercising control and therefore Section 79 was not applicable and assessee company is eligible for set off of brought forward losses against the current year income. In this case the holding company of assessee was amalgamated w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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