Only if, on the last day of the year in which the set-off is claimed, shares carrying at least 51 per cent of the voting power are beneficially held by the same persons who beneficially held 51 per cent on the last day of each year in which the loss was incurred. Section 79 was substituted from assessment year 2020-21; sub-section (2) now carries five carve-outs, and the proviso to sub-section (1) gives an eligible start-up under s.80-IAC a different and in some ways harder test - every loss-year shareholder must still hold his shares - for losses incurred within ten years of incorporation, the period having been raised from seven to ten by the Finance Act 2023 from assessment year 2023-24. Section 79 bars a loss; it does not reach unabsorbed depreciation.
Start with which text you are reading. Section 79 was substituted in its entirety by the Finance (No. 2) Act 2019 with effect from 1 April 2020, that is from assessment year 2020-21. The page served at incometaxindia.gov.in/w/section-79 - and the variants at /w/section-79-2, -3, -4 and -6 - still carry the pre-substitution section, with a single operative limb, two provisos and amendment footnotes stopping at the Finance Act 1999. There is no sub-section (2) on that page and no start-up proviso. The text used below is the substituted section as it appears in the clause of the Finance (No. 2) Bill 2019, read with the amendment made by clause 23 of the Finance Bill 2021 and the amendment made by clause 35 of the Finance Bill 2023.
The bar. Sub-section (1) reads: "Notwithstanding anything contained in this Chapter, where a change in shareholding has taken" "place during the previous year in the case of a company, not being a company in which the public" "are substantially interested, no loss incurred in any year prior to the previous year shall be carried" "forward and set off against the income of the previous year, unless on the last day of the previous" "year, the shares of the company carrying not less than fifty-one per cent. of the voting power were" "beneficially held by persons who beneficially held shares of the company carrying not less than" "fifty-one per cent. of the voting power on the last day of the year or years in which the loss was" "incurred". Four things are doing work there. It applies only to a company in which the public are not substantially interested, so a listed company and a subsidiary within s.2(18) are outside it. It bites only on a loss "incurred in any year prior to the previous year", so the current year's loss and its set-off within the year are untouched. The test is on "the last day of the previous year", so what happened during the year does not matter if the position is restored by the year end - and equally a change made on the last day is fatal. And the test runs against the last day of "the year or years in which the loss was incurred", separately for each loss year, so an old loss and a recent loss can have different answers in the same return.
"Beneficially held" is where the argument usually is. The corpus entry yum-restaurants-v-ito-79 is the Delhi High Court holding that a transfer of the whole shareholding of an Indian company from one holding company to another changed the beneficial ownership for s.79 even though the ultimate parent was the same throughout, and that the corporate veil could not be lifted at the assessee's instance to treat the common parent as the beneficial owner. That judgment construes the pre-2020 text, but the 51 per cent beneficial-holding test in the substituted sub-section (1) is in the same words, so the reasoning carries. Read it before advising on any internal group reorganisation where the Indian entity is carrying losses.
Unabsorbed depreciation is not caught, and the reason is textual. Section 79 speaks only of "loss incurred in any year prior to the previous year" being "carried forward and set off". Unabsorbed depreciation is not carried forward as a loss at all: s.32(2) provides that the allowance to which effect has not been given "shall be added to the amount of the allowance for depreciation for the following previous year and deemed to be part of that allowance", so it enters the following year's computation as that year's depreciation under s.32(1) rather than as a brought-forward loss. That is the same drafting point that keeps unabsorbed depreciation outside the eight-year cap in s.72(3) and outside the list in s.80, and the corpus page unabsorbed-depreciation-section-32-2 works it through. The practical consequence is that where s.79 bites, the split between business loss and unabsorbed depreciation on the face of the computation decides how much of the carry-forward survives - which is why that split has to be maintained year by year, long before anyone contemplates selling the company. No decision on the point has been found, so plead it from the words of s.79 and s.32(2) rather than from a citation you have not read.
The carve-outs. Sub-section (2) opens "Nothing contained in sub-section (1) shall apply," and then lists five cases. Clause (a): "to a case where a change in the said voting power and shareholding takes place in a previous year" "consequent upon the death of a shareholder or on account of transfer of shares by way of gift to" "any relative of the shareholder making such gift". Clause (b): "to any change in the shareholding of an Indian company which is a subsidiary of a foreign company" "as a result of amalgamation or demerger of a foreign company subject to the condition that" "fifty-one per cent. shareholders of amalgamating or demerged foreign company continue to be the" "shareholders of the amalgamated or the resulting foreign company". Clause (c): "to a company where a change in the shareholding takes place in a previous year pursuant to a" "resolution plan approved under the Insolvency and Bankruptcy Code, 2016, after affording a" "reasonable opportunity of being heard to the jurisdictional Principal Commissioner or Commissioner". Clause (d): "to a company, and its subsidiary and the subsidiary of such subsidiary, where, the Tribunal, on an" "application moved by the Central Government under section 241 of the Companies Act, 2013, has" "suspended the Board of Directors of such company and has appointed new directors nominated by" "the Central Government, under section 242 of the said Act; and a change in shareholding of such" "company, and its subsidiary and the subsidiary of such subsidiary, has taken place in a previous year" "pursuant to a resolution plan approved by the Tribunal under section 242 of the Companies Act," "2013 after affording a reasonable opportunity of being heard to the jurisdictional Principal" "Commissioner or Commissioner." Clause (e) was inserted by clause 23 of the Finance Bill 2021 with effect from 1 April 2022, that is from assessment year 2022-23: "to a company to the extent that a change in the shareholding has taken place during the previous year on account of relocation referred to in the Explanation to clause (viiac) and (viiad) of section 47."
Two things to notice about clauses (c) and (d). Each requires that the jurisdictional Principal Commissioner or Commissioner be given "a reasonable opportunity of being heard" before the plan is approved - so the relief is not automatic on the resolution plan, and if the department was not heard the carve-out is open to challenge. And clause (d) is not a general strike-off or National Company Law Tribunal exception: it is confined to the case where the Tribunal has suspended the board on an application by the Central Government under s.241 of the Companies Act 2013 and appointed government-nominated directors, and the change then happens under a plan approved under s.242. An ordinary NCLT-sanctioned scheme of arrangement is not within it.
The eligible start-up route is in the proviso to sub-section (1), not in a sub-section of its own. It reads: "Provided that even if the said condition is not satisfied in case of an eligible start up as referred to" "in section 80-IAC, the loss incurred in any year prior to the previous year shall be allowed to be" "carried forward and set off against the income of the previous year if all the shareholders of such" "company who held shares carrying voting power on the last day of the year or years in which the" "loss was incurred, continue to hold those shares on the last day of such previous year and such loss" "has been incurred during the period of seven years beginning from the year in which such company" "is incorporated." The Memorandum to the Finance (No. 2) Bill 2019 describes the effect as allowing the loss to be carried forward "on satisfaction of either of the two conditions" - so the start-up has two doors, the 51 per cent test in sub-section (1) or this proviso, and needs only one of them. "Seven" became "ten" by clause 35 of the Finance Bill 2023, which reads "In section 79 of the Income-tax Act, in sub-section (1), in the proviso, for the word 'seven', the word 'ten' shall be substituted"; the Memorandum to the Finance Bill 2023 gives the effective date as 1 April 2023 and the application as assessment year 2023-24 and subsequent assessment years, aligning the window with the ten-year period in s.80-IAC.
The proviso is harder than it looks, and the difference between the two tests is the point. Sub-section (1) is satisfied by 51 per cent continuity - which means up to 49 per cent of the votes can change hands and the losses survive. The proviso is satisfied only if every single shareholder who held voting shares on the last day of each loss year still holds those shares on the last day of the set-off year. So it tolerates unlimited dilution by a fresh issue, because the founders keep the shares they held, but a single loss-year angel who sells out in a secondary is fatal to it. A start-up with an old cap table full of small holders is far more exposed on the proviso than on the 51 per cent test, and the two have to be run separately for each loss year rather than tested once for the company.
What that means on a funding round. Where the founders will be diluted below 51 per cent, first ask whether the company is an eligible start-up as referred to in s.80-IAC - the proviso is available only to that class, and eligibility turns on the s.80-IAC conditions, not on being young or venture-funded. If it is, then a primary round in which existing shareholders take no exit is compatible with the proviso, provided no loss-year shareholder sells a share, and provided each loss you want to use was incurred within ten years of incorporation; so the answer on a round with a secondary component is usually to carve the loss-year shareholders out of the secondary. If the company is not an eligible start-up, then either the round is structured to keep 51 per cent voting continuity - which is usually possible only through the timing of tranches or through differential voting rights, and both invite scrutiny - or the business loss is accepted as lost and the plan is rebuilt on the unabsorbed depreciation, which survives, and on the current and future years, which s.79 does not touch. In every case the test is taken on the last day of the previous year, so the closing date of a round that straddles a year end is a tax decision, not just a commercial one.
Section 79 is not the only provision that can destroy a carry-forward. The corpus page set-off-and-carry-forward-of-losses sets out the s.80 condition that most carry-forwards must have been determined on a return filed by the s.139(1) due date, and s.78 does the equivalent work of s.79 for a change in the constitution of a firm. Under the Income-tax Act 2025, the compilation published on itatonline.org maps s.79 of the 1961 Act to s.119 of the 2025 Act; the content of that section has not been read.
A brought-forward loss is often the largest asset on a loss-making company's balance sheet, and s.79 can extinguish it on the last day of a year without any transaction inside the company at all - a shareholder sells, and the company loses the deduction. The provision is tested year by year and loss year by loss year, so a company can keep one year's loss and lose another's. And because the department's own section page still serves the pre-2020 text, advisers regularly work from a version that has neither the start-up proviso nor the insolvency and relocation carve-outs, and either give away relief that exists or promise relief on a seven-year window that became ten years from assessment year 2023-24.
My client stopped importing and now only exports. The officer says the old import loss dies because it is not the same business. Is he right?
The officer has disallowed a receipt on the ground that it is not 'derived from' our undertaking. Does the exact wording of the deduction section decide the point?
My return declared a loss and even after the addition the assessed figure is still a loss. Can concealment penalty under section 271(1)(c) be levied when no tax is payable?
My wife's and minor children's share income from a firm is clubbed into my total income. Can I set my own carried forward business loss against it, when I am not a partner in that firm?
I have a brought-forward business loss and brought-forward unabsorbed depreciation in the same year. Which one does the officer have to use first, and does it matter?
I filed a return showing a loss after the due date but before any assessment was made. Can the officer refuse to determine the loss and refuse to let me carry it forward?
My client's father died and the heirs formed a firm to carry on his business. Can the firm use his brought-forward loss, or does s.78(2) stop it?
In the loss year the officer recorded that the loss could not be carried forward, and we did not appeal. The officer of the set-off year now says that finding is final against us. Is it?
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