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11) and the same had been overlooked at the time of filing of return of income for A.Y.2012-13 (computation of income filed by_the appellant for A.Y.2011-12 is enclosed as Annexure -1).

6.2.3 I have examined the submission of the appellant. The disallowance is exactly the same as the amount taken in the excel sheet of the previous year-working and hence the mistake is essentially due to a bonafide human error. The I.T.A. No.1878/Mum/2017 appellant further pointed but that the appellant is incurring huge losses every year and in fact the unabsorbed brought forward losses of earlier year had lapsed due to implication of section 79 of the I.T. Act. The appellant's bonafide intention was very much established that it had not received any benefit of any kind by committing such an inadvertent error. It was further pointed out that that accumulated losses of Rs.70,21,53,416/- computed under the normal provisions of the I.T.Act and Rs.57,85,84,778/- u/s.115JB of the I.T. Act were not allowed to be carried forward and therefore, the effective tax position of the appellant does not change with the disallowance of the interest of Rs.11,26,61,005/-.

6.2.5 As discussed in foregoing paras it was a bonafide human error. Moreover, it is also proved from the fact that huge carried forward losses were lapsed during the year and appellant was not getting any benefit out of the wrong claim. Since the mistake was a bonafide human error, therefore, respectfully following various judgements of the Hon'ble Courts and ITAT as discussed above, the appeal of the appellant is allowed and penalty of Rs.3,22,14,851/- is deleted."

I.T.A. No.1878/Mum/2017 5.3The Ld. DR submitted in rejoinder that it was never the case of the assessee before Ld. CIT(A) as to the limb under which the penalty provisions u/s 271(1)(c) were invoked and levied by the Revenue, as no such plea was ever raised before learned CIT(A) and the assessee should not be allowed to raise such plea for the first time before tribunal.

6. We have considered rival contentions and perused the material on record including cited case laws. We have observed that the assessee is engaged in the business of mall management and consultancy & trading in fabric material. The assessee filed return of income with Revenue on 29.0.2012 declaring „Nil‟ income wherein it claimed losses to the tune of Rs. 81,48,14,420/- to be carried forward. The assessee has filed factual paper book containing 48 pages, which is placed in file.The assessee has also relied on large number of judicial decisions which are placed in case law paper book filed with the tribunal, which are all placed in file. The assessee had accumulated carried forward unabsorbed losses under the 1961 Act which were carried forward from earlier years. The assessee has filed copies of acknowledgement of income-tax returns for AY 2010-11, 2011-12 and 2012-13 in the paper book to evidence the losses sustained by it over these years.(page 1,39 & 40/pb). Even as per its audited financial statements prepared under the Companies Act ,1956 for the financial year ended 31.03.2012 filed in the paper book/page 3-19 , the accumulated losses as per audited financial statements as at 31.03.2012 were to the tune of Rs. 107.64 crores (pb/page8). The losses as reflected for AY 2010-11 in computation of income filed along with return of income under the 1961 Act was to the tune of Rs. 54.97 crores(page 39/pb) and Rs. 40.24 crores for AY 2011-12 (pb/page 40). We are presently seized of appeal filed by Revenue for AY 2012-13 wherein losses claimed in the return of income filed with Revenue were to the tune of Rs. 81.48 crores and even after removing the loss of Rs. 11.26 crores owing to alleged mistake committed by the I.T.A. No.1878/Mum/2017 assessee, the losses under the 1961 Act for the year under consideration were more than Rs. 70 crores. The case of the assessee was selected by Revenue for framing scrutiny assessment under provisions of Section 143(3) read with Section 143(2) of the 1961 Act. It was observed by the AO during the course of assessment proceedings u/s 143(3) read with Section 143(2) of the 1961 Act that the assessee made a claim of Rs. 52.37 crores as deduction u/s. 24(b) of the 1961 Act as an interest expenditure against the income from house property , while on the other hand only Rs. 41.11 crore was added back to the income from business or profession in the computation of income for the impugned assessment year 2012-13 under consideration by way of reduction of business expenses. The add back was required because Rs. 52.37 crores were debited to Profit and Loss Account prepared by the assessee as interest expenditure which can be seen from P&L A/c and Schedule 5 Finance Cost placed in paper book/refer page 9 &17 . The said Interest expenditure of Rs. 52.37 crores was claimed as deduction u/s 24(b) from rental income under the head Income from House Property by the assessee in return of income filed with Revenue , then as a natural corollary to avoid double deduction of same expenditure , the said amount of interest expenditure of Rs. 52.37 crores cannot be allowed as business deduction from business income and hence the expenses claimed as business expenses are required to be reduced by this amount of Rs. 52.37 crores to arrive at income from business to avoid double deduction of same expenditure . But the assessee infact claimed deduction of interest expenditure of Rs. 52,37,86,419/- u/s 24(b) from Rental Income under the head „Income from House Property‟ which was correctly done, but while reducing the said interest expenditure of Rs. 52,37,86,419/- from business expenses to be set off against business income, the assessee wrongly deducted Rs. 41,11,25,414/- from business expenses which led to claim of higher business expenses by Rs. 11,26,61,005/- leading to claim of total current year losses to the tune of Rs. 81,48,14,420/- while the correct I.T.A. No.1878/Mum/2017 figure of loss to be shown for current year in return of income filed by the assessee with Revenue ought to have been Rs.70,21,53,415/- but for this mistake. This was claimed by assessee to be an mistake which on being confronted by the AO during assessment proceedings, the assessee explained that it is due to inadvertent mistake in the computation of income at the time of filing of return of income which has led to claiming of higher loses to the tune of Rs. 11,26,61,005/-. The assessee has claimed that the old excel sheet for AY 2010-11 containing formulas was used as base sheet wherein the same figure of Rs. 41,11,25,414/- was an interest expenditure for AY 2010-11 which was reduced from business expenses while computing business income for AY 2010-11 and the same figure of Rs. Rs. 41,11,25,414/- towards interest expenditure inadvertently got reduced from business expenses while computing business income for AY 2012-13 instead of correct figure of Rs. 52,37,86,419/- which as per assessee itself proves that it was an inadvertent mistake committed by the assessee as both the figures which was deducted from business expenses for both the years i.e. AY 2010-11 and 2012-13 are exactly the same which was a bonafide mistake as it occurred due to formula placed in the old excel sheet for AY 2010-11 which sheet was used for computing the income for AY 2012-13. The assessee has claimed that there was a claim of loss of Rs. 81.48 crores during the impugned year under consideration and even if this mistake of Rs. 11.26 crores is ignored , then also the assessee is still left with loss of more than Rs. 70 crores for the current year.i.e. AY 2012-13 The assessee has also explained that during the year there was a major change in shareholding of the assessee to the tune of 100% which led to triggering of provisions of Section 79 of the 1961 Act and its accumulated losses lapsed , thus no advantage could be obtained by the assessee in any case by inflating losses as the losses lapsed. It is explained that it was a bonafide human error which occurred while filing return of income due to peculiar circumstances as narrated above which led to claim of higher losses which was a bonafide I.T.A. No.1878/Mum/2017 mistake committed inadvertently due to human error and immediately on being notified by the AO , the assessee rectified the said mistake suo motu during assessment procedings . It is explained that under the circumstances , assessee could not have derived any benefit and no loss could have been caused to Revenue owing to higher losses claimed as in any case these losses lapsed being hit by provisions of Section 79 of the 1961 Act. We have observed that two fold explanations offered by the assessee for this erroneously claim of higher losses are correct. On the one hand , the amount added back to business income on account of interest expenses to the tune of Rs. 41,11,25,414/- for AY 2012-13 is exactly matching with interest expenditure added back for AY 2010-11 which under the preponderance of probabilities give credence to the theory of use of old excel sheet for AY 2010-11 containing formulas as base sheet for computing income for AY 2012-13,, which led to this mistake while preparing return of income. The assessee has accepted in quantum assessment that assessee has to claim correct lower losses after correcting this mistake which assessee did by correcting its computation of income during assessment proceedings. We are seized of an appeal against penalty levied by the AO which was deleted by learned CIT(A). It is also not in doubt although it might be an human error but assessee has to be vigilant while filing its return of income as every mistake cannot be excused even in penalty proceedings. Thus, it is beyond doubt that lapse has occurred on part of the assessee but the moot question is whether every mistake committed by the assessee while filing return of income will be visited with penal provisions. It depends upon facts and circumstances of each case which differ from case to case as every mistake committed in filing return of income cannot be visited with levying of penalty within four corner of the provisions of Section 271(1)(c) of the 1961 Act. We have also observed from the audited financial statements filed by the assessee that during the year under consideration, 100% shareholding of the assessee got transferred to Suhani Trading and Investment I.T.A. No.1878/Mum/2017 Consultants Private Limited , which led to triggering of provisions of Section 79 of the 1961 Act leading to lapsing of losses. Thus , this explanation of the assessee is also correct that claiming of the higher losses could not have brought any advantage to the assessee on the face of provisions of Section 79 of the 1961 Act. In our considered view the ratio of decision of Hon‟ble Supreme Court in the case of Price Waterhouse Coopers Private Ltd. v. CIT (2012) 348 ITR 306(SC) is applicable on the factual and circumstantial matrix surrounding this particular case and in our considered view the assessee has furnished bonafide and genuine explanations as to an inadvertent mistake committed by it which was an human error committed while filing its return of income and there cannot be any ulterior motive attached to this error committed by the assessee, which has taken it out from the clutches of penalty under the provisions of Section 271(1)(c) of the 1961 Act as it is well settled proposition of law that every error committed in filing of return of income cannot be visited with penal provisions as are contained in Section 271(1)(c).The operative part of decision of Hon‟ble Supreme Court in the case of Price Waterhouse Coppers Private Limited (supra) is reproduced hereunder:-

19. The contents of the Tax Audit Report suggest that there is no question of the assessee concealing its income. There is also no question of the assessee furnishing any inaccurate particulars. It appears to us that all that has happened in the present case is that through a bona fide and inadvertent error, the assessee while submitting its return, failed to add the provision for gratuity to its total income. This can only be described as a human error I.T.A. No.1878/Mum/2017 which we are all prone to make. The calibre and expertise of the assessee has little or nothing to do with the inadvertent error. That the assessee should have been careful cannot be doubted, but the absence of due care, in a case such as the present does not mean that the assessed is guilty of either furnishing inaccurate particulars or attempting to conceal its income.