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2016 (2) TMI 45 - BOMBAY HIGH COURT

2016 (2) TMI 45 - BOMBAY HIGH COURT - [2016] 384 ITR 260 - Penalty u/s 271(1)(c) - claim for business loss - CIT(a) and ITAT deleted the penalty - Held that:- CIT(Appeals) and the Tribunal have concurrently reached a finding of fact that the Respondent had not claimed any carry forward loss either in the return which he has filed for the subject assessment year or in the subsequent assessment years. In the subject assessment year, once a loss was shown in the E-return, the software suomotu refle .....

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This was a claim which was disallowed not on the basis that it had not set up its business.

In any case, both CIT(A) as well as the Tribunal had concurrently reached a finding of fact that there was no intent on the part of the Respondent Assessee to evade tax. This finding is not shown to the arbitrary - Decided in favour of assessee - Income Tax Appeal No. 2085 of 2013 - Dated:- 18-1-2016 - M. S. Sanklecha And B. P. Colabawalla, JJ. For the Petitioner : Mr. R. Murlidharan a/w Mr. P. .....

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he circumstances of the case and in law, the Tribunal was correct upholding the action of the CIT(A) cancelling the penalty when a claim for business loss was made in the return and the loss was disallowed by the AO during the course of assessment proceedings? (2): "Whether on the facts and in the circumstances of the case and in law, the Tribunal was incorrect in ignoring the provisions of Explanation 4 to Section 271(1)(c) wherein it is provided where a loss has been reduced, it would als .....

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claimed in the return of income as it was filed beyond the due date, thereafter disallowed under Section 80 of the Act. However, penalty proceedings under Section 271(1)(c) of the Act were initiated. (b) In the penalty proceedings, the Respondent-Assessee contended that expenditure had been claimed for the purpose of business which had been set up even though the business had not commenced. Further, it had shown a net loss of ₹ 3.92 Crores which in present format of e-return would automat .....

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80 of the Act was permissible/allowable. Thus, it was submitted that no penalty be imposed. However, notwithstanding above, the Assessing Officer held that the Respondent had deliberately furnished inaccurate particulars of income to the Assessing Officer and concealed its income inviting penalty under Section 271(1)(c) of the Act. Thus, by order dated 28th April 2011 the Assessing Officer imposed a penalty of 100% of the tax sought to be evaded i.e. ₹ 1.33 Crores (on ₹ 3.92 Crores .....

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ed beyond the due date and in terms of Section 80 of the Act such carry forward of loss was not allowable. Further, in the return of income filed for the subsequent Assessment Years 2009-2010 & 2010-2011, no such carry forward loss has in fact been claimed by the Respondent-Asessee. Thirdly, the electronic form prescribed by the Department was such that if in the return of income, a loss is entered then the figure of carry forward loss appears without any control and/or manipulation on the p .....

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ue date, thus, there was no question of the Respondent-Assessee claiming set off of the carried forward loss in the subsequent Assessment years. Besides, the impugned order also places reliance on the return of income filed for the subsequent Assessment Year prior to the order of the subject assessment year which also indicate that the Respondent had not claimed any set off or loss carried forward from the earlier assessment years. In the above view, the Appeal of the Revenue was dismissed. (d) .....

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which he has filed for the subject assessment year or in the subsequent assessment years. In the subject assessment year, once a loss was shown in the E-return, the software suomotu reflects the loss returned as carry forward loss. The Respondent has not fed in the entry of carried forward loss while filing its return of income in the E-return. The fact that the Respondent-Assessee had in the subsequent assessment year not claimed carry forward loss is evidence of the fact that there was no int .....

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