TaxTMI 
TaxTMI 
2013 (8) TMI 551
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....instant case arises on account of the difference between the brought forward business losses for two years, being A.Ys. 1996-97 to 2002-03, which along with unabsorbed depreciation, capital loss and speculation loss, were claimed by assessee for the assessment years (A.Ys.) 1996-97 to 2003-04 vide his returned income of Rs. 75,32,363/- on 22.04.2004 for the current year. The statement reflecting the claim and the allowed losses/allowances is as under: (PB pg. 9) (Amount in Rs.) Particulars As per return of income As per assessment record Difference Business Loss (A.Y. 1996-97 to 2003-04) - (A) 6,03,41,245 5,69,10,179 34,31,066 Unabsorbed Depreciation (A.Y. 1997-98 to 2003-04) - (B) 12,99,134 12,99,134 - ....
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....ecord 1995-96 Business Loss Less: LTCG Set-off allowed under Order Less: Set-off in A.Y. 2000-01 86,14,555 - 86,14,555 27,00,449 86,14,555 86,14,555 59,14,106 59,14,106 1996-97 Business Loss Less Set-off in A.Y. 2000-01 Less: Set-off in A.Y. 2004-05 Excess Balance 73,59,935 27,17,386 73,59,935 54,17,834 46,42,549 49,42,549 19,42,101 19,42,101 (3,00,000) 2000-01 Business Income (I) Less: Set-off of b/f losses A.Y. 1993-94 A.Y. 1995-96# A.Y. 1996-97# (balance) (II) 1,23,01,465 9,69,524 86,14,555 27,17,386 1,23,01,465 9,69,524 59,14,106 54,17,834 1,23,01,465 1,23,01,465 2002-03 Business Loss Less: Set-off in A.Y. 2004-05 Di....
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....etoff of business loss for A.Y. 1995-96 against the long term capital gains (LTCG) by the first appellate authority vide his order dated 18.12.2001. How could he thus claim to be not aware of the same? The onus to substantiate its claim is only on the assessee, and who has clearly failed to discharge the same, so that reliance on the decision in the case of CIT v. P.K. Narayana 238 ITR 905 (Ker) would be to no avail. Mens rea or willful neglect is no longer an essential ingredient for the levy of penalty, as clarified by the apex court in the case of Union of India and Anr. v. Dharmendra Textile Processors and Ors. (2008) 306 ITR 277 (SC). Reliance stands also placed on the decisions in the case of B.A. Balasubramaniam and Bros v. CIT (1999....
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....e entire outstanding loss of Rs. 49,42,549, i.e., after adjusting the loss of Rs. 27,17,386 against the income for A.Y. 2000- 01, as against the correct balance of Rs. 46,42,549. That, there was no intent in making a wrong claim to that extent, which can only be ascribed to a clerical mistake in adopting a wrong figure. For the balance Rs. 27,00,448/-, the assessee likewise claims to have adopted the figures of loss as derived after setting off the loss for A.Y. 1995-96 against income for A.Y. 2000-01, as allowed to it in assessment. The claim of loss for AY 1995- 96 was allowed only by the first appellate authority vide his order dated 18.12.2001, which was received by him only on 25.01.2002. 5.3 We may now subject to assessee's explana....
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....d (or carry forward) loss/es even after the receipt of the appellate order for A.Y. 1995-96 on 25.01.2002, accepting its claim for the set-off of loss to this extent. The same led to a corresponding difference in the brought forward loss for A.Y. 1996-97. To this extent the assessee has clearly preferred a double claim, i.e., firstly against the income for AY 1995-96 and then again for the current year. Its argument of the A.O. having disallowed the claim subject to verification is to no effect inasmuch as the difference in loss, as claimed and allowed, is finally only for this difference, i.e., which stands wrongly claimed. If the assessee considered that its claim for set off of business loss against LTCG, made for AY 1995-96, may be disa....