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2022 (2) TMI 1086 - AT - Income TaxSpecial provision for computing profits and gains of business of plying, hiring or leasing goods carriages u/s 44AE - whether the taxable income of the assessee is to be taken at the presumptive rate of 8 (eight) per cent (of turnover), as prescribed u/s. 44AE of the Act, or at the higher income disclosed per the assessee's regular accounts, which stand duly audited? - HELD THAT:- It is clear that sec. 44AE, a non obstante clause, represents a code in itself and, further, provides for exceptions thereto as well as a built-in mechanism to effectuate the same. The right to adopt a lower than the presumptive rate stands taken away by Finance Act, 1997 (s. 44AE(6)). As explained by the Apex Court in CBI vs. Keshub Mahindra & Others [2011 (5) TMI 913 - SUPREME COURT] that no decision by any court, including itself, can be read in the manner as to nullify the express provisions of an Act. For the second aspect (b), it is again well-settled that the assessment of income under the Act is to be, subject to the provisions of the Act, of the real income, for which reference may be made to section 5 defining the scope of 'total income' under the Act (also see Poona Electric Supply Co. Ltd. [1965 (4) TMI 20 - SUPREME COURT] The argument of giving cognizance to the returned income de hors the audited accounts, which is admittedly higher than the presumptive rate u/s. 44AE, can hardly have the sanction of law. Therefore, have no hesitation in, notwithstanding that the appeals have been preferred by the assessee against the order by the Hon'ble jurisdictional High Court which, as explained, are yet to be decided, uphold the orders of the Revenue authority, finding the subject matter to be squarely covered by the Tribunal's decision in the assessee's own case. Sh. Shrivastava could not explain as to how the same was not in conformity with the extant law. His plea of keeping the matter in abeyance also cannot be accepted. The matter having been already decided by the Tribunal, the decision by the Hon'ble High Court would equally apply to this order as well.
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