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Income Tax Appellate Tribunal, DELHI BENCH ‘E’ : NEW DELHI
PER SHAMIM YAHYA, ACCOUNTANT MEMBER :
This appeal by the assessee is directed against the order of the ld.
CIT (Appeals)-6, Delhi dated 28.12.2018 pertaining to the assessment
year 2014-15.
The grounds of appeal taken by the assessee read as under :-
“1. That the order of the Ld. Commissioner of Income Tax (Appeals)- 6, New Delhi ("CIT-A"), of not allowing carry forward loss Rs.4,77,22,597 of Nipa Chemicals Limited (PAN:AAACNl138K) ("amalgamating company"), by not appreciating the various facts of the case as per the details, explanation and documents provided by the assessee during the course of assessment/appellate proceedings, is against law and facts of the case.
2 ITA No.1461/Del./2019
That having regard to the facts and circumstances of the case, Ld. CIT (A) has erred in not allowing carry forward loss of the amalgamating company u/s 72(A) (2) of the Act without appreciating the various facts and explanations provided by the assessee. (i) That the Ld. AO did not pass any speaking order in respect of brought forward loss of amalgamating company of Rs.4,77,22,597/- without bringing any adverse noting on merger compliance. (ii) That the Ld. CIT (A) erred in pronouncing non availability ofForm-62 on the record as failure to satisfy condition as required by Section 72A(2)(b)(iii) of the Act. (iii) That the Ld. CIT (A) erred in not providing any reasonable opportunity for furnishing and discussing Form-62.”
In this case, Assessing officer has not allowed carry forward loss of
the amalgamating company of Rs.4,77,22,597/- to the assessee. Assessee
challenged the same before the ld. CIT (A). Ld. CIT (A) noted that this
claim was not made in the return of income. He noted that a detailed
submission was was given to demonstrate that the conditions laid down
under sub-clauses (i) and (ii) of clause (a) of section 72A(2) have been
met. He also noted that submissions have also been given in support of
the contention that conditions as laid down in sub-clauses (i) and (ii) of
clause (b) of section72A(2) which relate to the conditions for
amalgamated company have also been met. However, he noted that no
certificate in Form No.62 was submitted. Hence, he held that all the
conditions subject to which set off and carry forward of loss is allowed in
the hands of the amalgamated company cannot be said to have been met
and accordingly the loss cannot be allowed to be carried forward.
3 ITA No.1461/Del./2019 4. Against this order, assessee is in appeal before us. We have head both the parties and perused the records.
Ld. Counsel for the assessee submitted that assessee has met all the conditions for the allowance of carry forward loss. He submitted that disallowance is only made on the ground that assessee had not claimed the same in the return of income and prayed that the claim may be allowed. 6. We find that the denial of carry forward loss of amalgamating
company has been denied by the ld. CIT (A) also on the ground that assessee has not made any claim in the return of income. Assessee now prays that assessee has met all the conditions for allowance of carry
forward loss. Hence, we deem it proper to remit the issue back to the ld. CIT (A). Ld. CIT (A) will decide the issue afresh after giving the assessee proper opportunity of being heard. 7. In the result, this appeal of the assessee stands allowed for statistical purposes. Order pronounced in the open court on this 7TH day of August, 2022 after the conclusion of the hearing.
Sd/- sd/- (ASTHA CHANDRA) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated the 7th day of August, 2022 TS
4 ITA No.1461/Del./2019 Copy forwarded to: 1.Appellant 2.Respondent 3.CIT 4.CIT (Appeals)-6, Delhi 5.CIT(ITAT), New Delhi. AR, ITAT NEW DELHI.