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Set Off and Carry Forward of Losses

Updated: May 14


Set Off and Carry Forward of Losses

Set Off and Carry Forward of losses are key tools for both individual taxpayers and businesses, helping optimize tax management over different years. Understanding how to effectively use these tools can turn a financial 'liability' into a less burdensome, or sometimes even advantageous, situation. 


This article offers a comprehensive overview of the provisions, rules, and insightful advice on leveraging these tax tools, equipping you to make more informed decisions to enhance your financial health.

 

Table of Contents

 

Set Off and Carry Forward of Losses: Basics

Understanding the provisions of set off and carry forward of losses is essential as it significantly impacts the tax liability and tax planning of the taxpayer. Let’s understand the basics of set off and carry forward of loss.


Definition and Distinction

Set Off of Losses is a provision that allows a taxpayer to reduce the income earned within the same financial year with the losses incurred in other income areas. Essentially, if a taxpayer incur a loss in one source of income, he can offset this against a profit from another source within the same tax year, thus reducing the total taxable income.


Carry Forward of Losses, on the other hand, allows taxpayers to carry forward losses that cannot be completely set off within the same year to future tax years. This is particularly beneficial when the losses are substantial compared to the profits of the current year, enabling the use of these losses in subsequent years to reduce future tax liabilities.


Key Distinctions:

  • Set Off of Losses: Utilizes losses within the same financial year to decrease taxable income.

  • Carry Forward of Losses: Extends the benefit of losses to future years when they could not be fully utilized in the year they occurred.


Types of Losses

Following are the types of losses:


  • Business Losses:

  • Set Off: Generally, business losses can be set off against any form of income except salary in the same year.

  • Carry Forward: Non-speculative business losses can be carried forward for 8 assessment years and can be set off against future business profits. However, losses from speculative businesses are restricted to being set off against speculative profits.


  • Capital Losses:

  • Set Off: Short-term capital losses can be set off against both short-term and long-term capital gains, while long-term capital losses are only set off against long-term capital gains.

  • Carry Forward: Both short-term and long-term capital losses can be carried forward for up to 8 years but must be set off against the same type of capital gains as originally allowed.


  • Losses from House Property:

  • Set Off: Can be set off against other income heads up to a limit of INR 2 Lakhs in the same year.

  • Carry Forward: Losses that are not set off within the year can be carried forward for 8 years but can only be set off against income from house property.


  • Losses from Owning and Maintaining Race Horses:

  • Set Off: These types of losses can only be set off against income from the same activity.

  • Carry Forward: Can be carried forward for 4 assessment years and set off against income from the activity.


Set Off and Carry Forward of Losses: Rules

There are rules and conditions for set off and carry forward of losses which should be known to every taxpayer. Let’s understand the rules related to set off and carry forward of losses:


Same Head Set Off

In case of the same head or inter head set off, losses incurred under a specific head of income can be offset against income from the same head. For instance, if a business incurs a loss of INR 200,000 and in the same financial year earns a profit of INR 500,000 from another business activity, the loss can be used to reduce the taxable income from business activities to INR 300,000. This process is known as "same head set off."


Inter-Head Set Off

Generally, losses from one head of income are allowed to be set off against income from another head in the same assessment year, with some exceptions. For example, if a taxpayer incurs a loss under the "Income from house property" head of INR 100,000 and has a gain under the "Capital gains" head of INR 200,000, the loss can be set off, thus reducing the taxable capital gains to INR 100,000. However, losses from "Capital gains" can only be set off within the capital gains head and not against other income types.


Restrictions and Prohibitions

Certain restrictions apply to the set off of losses which are as follows:


  • Speculative Losses: Losses from speculative business activities cannot be set off against non-speculative business income.

  • Losses from House Property: These can only be set off up to INR 2,00,000 against other heads of income per fiscal year.

  • Carried Forward Business Losses: These can only be set off against business income.


Carry Forward of Losses

The provisions for carry forward of losses are as follows:


Time Limits

Different types of losses have distinct time limits for being carried forward:


  • Business Losses (non-speculative): These can be carried forward for 8 assessment years immediately following the assessment year in which the loss was first computed.

  • Capital Losses: Can be carried forward for 8 years but can only be set off against capital gains.

  • Speculative Business Losses: Carried forward for 4 years and can only be set off against speculative profits.


Conditions for Carry Forward

To carry forward losses, taxpayers must file their income tax returns within the prescribed due dates under the Income Tax Act. Failure to file on time results in the denial of the benefit of carrying forward certain losses.


Examples


Business Loss Carry Forward: In F.Y. 2020-21, Company A incurs a business loss of INR 4,00,000 with no other income. It cannot set off this loss in the same year but files its return on time, allowing the loss to be carried forward. In F.Y. 2021-22, it earns a profit of INR 5,00,000. It can set off the carried forward loss against this profit, reducing its taxable income to INR 1,00,000.


Capital Loss Carry Forward: An individual incurs a short-term capital loss of INR 150,000 on stock investments in F.Y. 2020-21 and short-term gains of INR 2,00,000 from selling a different stock in F.Y. 2021-22. The individual can carry forward the loss and set it off against the short-term capital gain, reducing the taxable short-term capital gains to INR 50,000.


Set Off and Carry Forward of Losses: Special Considerations

The provisions for set off and carry forward of losses in special cases are as follows:


Losses in Case of Company Mergers

When companies undergo mergers or acquisitions, handling accumulated losses is a crucial aspect of the transaction. Under Indian tax law, losses can be carried forward by the amalgamated company if the business is continued for at least 5 years post-merger. This provision ensures that mergers are undertaken for genuine business purposes and not merely for tax evasion. Strategic planning and legal compliance are critical to utilizing these benefits effectively.


Impact of Ownership Change on Losses

A change in the ownership structure of a company can affect its ability to carry forward losses. According to tax law, if more than 49% of a company's shares are transferred to new shareholders, the ability to carry forward past losses may be forfeited unless the transfer is part of an approved amalgamation or demerger. This rule is significant for startups and rapidly growing companies that may experience changes in their investor base. Strategic planning of shareholding changes is essential to preserve valuable tax benefits.


Strategic Tax Planning with Losses

An effective strategic tax planning with losses will help save income tax of the taxpayer. Here is how a taxpayer can plan for set off and carry forward of losses:


Planning for Set Off and Carry Forward

Effective tax planning can maximize the benefits of setting off and carrying forward losses. Here are some strategies:


  • Timely Compliance: Ensure tax returns are filed on time as late filings can prevent carrying forward losses to subsequent years.

  • Documentation and Tracking: Keep detailed records of all incurred losses, noting the nature and relevant financial details for audits and future set offs.

  • Understand the Rules: Familiarize yourself with the different rules applicable to various types of losses, such as business, capital, and speculative losses, to avoid losing tax benefits.

  • Professional Assistance: Given the complexities involved, consulting with tax professionals can provide tailored strategies that optimize the use of losses.


H3 - Common Mistakes to Avoid

The taxpayer should avoid following common mistakes to effectively set off and carry forward the losses:


  • Ignoring Time Limits: Failing to carry forward losses within the stipulated time frame (4 to 8 years, depending on the type of loss) can lead to lost benefits.

  • Failing to Track Ownership Changes: Neglecting to monitor shareholding changes can result in disqualification from carrying forward losses.

  • Improper Documentation: Inadequate documentation of transactions that led to losses can result in disallowances during tax assessments.

  • Neglecting Legal Structures in Mergers: Overlooking the legal structures governing mergers can result in losing the ability to carry forward losses.


FAQ


Q1. Explain the set off of losses. How does it work?

Set off of losses refers to the adjusting the losses incurred in one source of income against the income from other sources. This reduces the total taxable income of the assessee and thereby the tax liability.


Q2. Can losses be carried forward to future years if not fully set off?

Yes. If losses cannot be fully set off against the income of the current year, it can be carried forward to set off against the income of the future years.


Q3. What types of losses can be carried forward, and for how long?

Generally, business losses, capital losses, and speculative losses can be carried forward. The duration of carry forward is different for different types of losses. For instance, business losses can be carried forward for 8 years, while capital losses can be carried forward indefinitely.


Q4. Are there any restrictions on the set off and carry forward of losses?

Yes. There are restrictions on the set off and carry forward of losses. For example, losses from speculative business activities can only be set off against speculative income and not against any other sources of income.


Q5. Can losses of one business be set off against the income from another business?

Yes. Losses from one business can be set off against income from another business, provided they are of the same nature (e.g. both are regular business activities).


Q6. Do individuals have the same set off and carry forward provisions as that of businesses?

Yes. Individuals have the same  set off and carry forward provisions as that of businesses. However, the set off and carry forward provisions are subject to certain terms and conditions.


Q7. What happens to losses in case of change in the ownership structure of a business?

In case of change in the ownership structure, there can be an impact in the ability to carry forward losses. If there is a substantial change in the ownership structure, the right to carry forward losses may be forfeited.


Q8. Are there any penalties for incorrectly claiming set off and carry forward losses?

Yes. Claiming set off or carry forward of losses incorrectly may lead to penalties and additional tax liabilities. Thus, it is important to comply with the tax laws and regulations.


Q9. How can I ensure that I am maximizing the benefits of set off and carry forward of losses?

Keeping detailed records of losses, understanding the tax laws, and seeking professional tax advice can help maximize the benefits of set off and carry forward provisions.


Q10. What are the implications of set off short term losses against the long term gains and vice versa?

The short term losses can be set off against long term gains and even short term gains. However, the long term losses can be set off only against the long term gains.


Q11. Explain the process of set off of losses from equity intraday trading against F&O trading income?

The speculative business losses can be set off against speculative business profits. Since intraday trading is a speculative business activity, its losses cannot be set off only against F&O trading income. However, the same can be carried forward to future years for 4 years to be set off against the future speculative profits.


Q12. Can current year business losses be carried forward without being deducted from the incomes of the current year?

No. The losses must be offset against the income of the current year first and only the losses remaining after set off are allowed to carry forward.


Q13. How does belated return filing affect the carry forward of losses?

In case of belated return filing, only house property loss is allowed to be carried forward. No other loss can be carried forward in case the return is not filed on time.





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