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33. After considering the position of law as discussed above in para 24 hereto, we are of the view that CIT(A) was wrong in holding that it was the burden of the AO to prove and establish that assessee company has deliberately concealed anything or furnished inaccurate particulars of income. It is now well settled that the mens rea is not an essential ingredient for levying penalty u/s 271(1)( c) of the Act as was held by the Hon'ble Supreme Court in the case of Union of India vs Dharmendra Textiles Processors (2008-TIOL-192-SC-CX-LB). In this case, since the assessee's claim was disallowed, it was the duty of the assessee to prove and establish that his claim was bonafide, and all the facts relating to the claim were duly disclosed as so provided in under Explanation 1 to Section 271(1)( c) of the Act. We, therefore, proceed to see as to whether the assessee's claim was bonafide and the assessee has disclosed all the particulars material to the computation of income. We have carefully gone through the computation of income filed by the assessee with the original return of income filed on 30.11.95. In the computation of income, the assessee worked out the sum of Rs.29,25,207/-, being loss on sale of shares as per Annexure No.11. The assessee made a claim of set off of long-term capital loss against the income under the head 'profits and gains of business'. In the computation of income, the assessee computed the business income by taking the net profit as per P&L account as the base for determining the income chargeable to tax under the head 'profits and gains of business' after making several adjustment to the net profit shown in the P&L account. In the profit and loss account, the loss on sale of assets i.e. share of M/s SSL/KPIL was shown at Rs.11,44,000/-. In other words, the actual book loss on sale of shares was of Rs.11,44,000/-, which was enhanced to Rs.29,25,207/- after applying the inflation indexed cost, as per working given vide Annexure 11 to the computation of income. While computing the amount of long-term capital loss, the assessee company determined the indexed cost of shares by applying the cost inflation index to actual cost. In other words, the assessee claimed indexed cost of acquisition instead of actual cost of shares to the assessee arrived at a loss of Rs.29,25,207/-, and thus, as against the actual book loss of Rs.11,44,000/-. It is well known that the actual cost of long term capital assets can be substituted by the indexed cost only for the purpose of computing the income under the long term capital gain as provided under Chapter IV Part 'E' 'Capital Gains' of the Act. The assessee has consciously and knowingly taken the indexed cost of acquisition of shares, and computed the long-term capital loss on sale of shares at Rs.29,25,207/-. It was, thus, well within the knowledge of the assessee that the loss of Rs.29,25,207/- was a long-term capital loss, which was worked out by the assessee as per the provisions of computation of capital gain under the Income-tax Act. As per Section 71 of the Act, the loss under the head 'capital gain' is not allowed to be set off against income under other head in that relevant assessment year. This section provides that when net result of the computation under the head 'capital gain' is a loss and the assessee has income assessable under any other head of income, the assessee shall not be entitled to have such loss set off against income under any other head. In the present case, the assessee has claimed set off of long term capital loss against the business income, which, by any stretch of imagination is not permissible under the provisions of Section 71 of the Act. The assessee's explanation that it has claimed set off of long term capital loss against other income because of the fact that there was positive income in that year is totally unacceptable and unbelievable inasmuch as it is beyond any doubt that the long term capital loss is not at all permitted to be set off against the positive income under other heads. Therefore, the assessee's explanation is prima facie contrary to the clear provisions of law contained in Section 71 of the Act. The assessee is a limited company, which is guided and instructed by the tax experts, as would be clear from facts of the present case. In the computation of income, the assessee has made several adjustments to the net profit shown as profit and loss account, and while making various adjustments, the assessee company has made a reference to the various provisions of the Income-tax Act including certain decisions also. Therefore, it cannot also be believed that the assessee company did not know the provisions of Income-tax Act. It is not the case of the assessee that it was advised by some tax experts that the long term capital loss can be set off against the business income. In fact, in view of plain, specific and unambiguous provisions contained in Section 71 of the Act, no such advise could be expected to be given by any auditor or other tax expert. The assessee is not an ordinary layman, but is a company incorporated under the Companies Act and accounts of which are mandatorily subjected to audit. It is the case where assessee has made adjustment to the actual book loss of Rs.11,44,000/- incurred by the assessee on sale of shares, and revised it to Rs.29,25,207/- after applying the inflation indexation cost. Therefore, the assessee's claim to set off long-term capital loss against business income cannot said to be a bonafide mistake on the part of the assessee. The assessee was well aware about the provisions of computation of long term capital gain as it has worked out the loss at Rs.29,25,207/- after applying indexed cost of acquisition as against actual loss of Rs.11,44,000/- as per books. It is also not the case where the claim was later withdrawn voluntarily by filing the valid revised return of income permitted u/s 139(5) of the Act before any enquiry was made or any query was raised by the AO. In the present case, the AO issued a show cause letter and then the assessee filed its reply on 27.3.98, just before the assessment made on 31.3.98. It is pertinent to note that the original return of income filed by the assessee on 30.11.95 was revised thrice i.e. first by revised return filed on 22.2.96, secondly on 27.2.97 and thirdly, on 3.3.98. After revising the original return of income for three times, the assessee again submitted a letter dated 27.3.98 in reply to the AO's query where certain items of income were agreed to be taxed. The claim of the assessee made in the original return of income was never revised or modified voluntarily by the assessee in any of the three revised return filed from time to time by the assessee. It is thus, a case of deliberate act of making a false and impermissible claim on the part of the assessee. In the light of the facts of the present case, it is thus established that it is not a case where claim of the assessee has been merely disallowed under the law after rejecting the assessee's probable view but it is the case where the claim of the assessee was not at all maintainable by any stretch of imagination under the plain provisions of law, and, thus, by claiming the same, assessee has furnished false claim in the return of income. As pointed out above, we cannot lose sight of the fact that the assessee company is a company, which is availing professional assistance in preparing computation of income, and filing return of income. In the light of plain and unambiguous provisions contained in Section 71 of the Act, we fail to understand as to how such claim could be made by the present assessee company, and how this could have escaped the attention of the tax consultant or the auditor of the assessee company while preparing and filing return of income. Moreover, it has been never a claim of the assessee that the claim was made under any bonafide advice.