TMI Blog2015 (6) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of Sec. 43B in respect of the statutory liabilities still holds precedence over such allowance. This is because the dues to the crown has no limitation and has precedence over all other allowances and claims. In these circumstances, we are of the view that the disallowance made by the AO by invoking the provisions of Sec. 43B of the Act in respect of the statutory liabilities are in order even though the Assessee's income has been offered and assessed under the provisions of Sec. 44AF of the Act. - Decided against assessee. Addition representing the sundry creditors - Held that:- As admittedly the same cannot be made in the hands of the Assessee when applying the provisions of Sec. 44AF. This is because once the presumptive tax pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wheelers. It was the submission that this was the last year of his business and subsequently the Assessee has closed his business. It was the submission that the turnover of the Assessee for the relevant assessment year was ₹ 18,07,249/- and the Assessee had filed its return of income under the presumptive tax provision of Sec. 44AF by applying rate of 5%. It was the submission that in the course of the assessment the AO made two additions. The first addition was by invoking the provisions of Sec. 43B in respect of the statutory liabilities which had not been paid by the Assessee before the due date. On a specific query as to whether the statutory liabilities have been paid subsequently, the ld. Counsel was unable to submit any detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stante clause in Sec. 44AF is that the provisions mentioned therein have full operation and the provisions embraced in the non-obstante clause do not become an impediment for the operation of that section. He also relied upon the decision of the coordinate Pune Bench of the Tribunal in the case of Sunil M. Kankariya, 298 ITR (A.T) 205 to submit that in the said decision it has been categorically held that when applying Sec. 44AE, since the unabsorbed depreciation falls u/s 32(2) of the Act, which is within the debarred claims as per Sec. 44AE(3), therefore the Assessee was not entitled for the set off of the unabsorbed depreciation. He also placed reliance upon Circular no. 779 dt. 14.9.1999 to submit that under the existing provisions of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e books of accounts in its entirety would have to be considered and the profit and loss account of the Assessee for the relevant assessment year showed a loss of more than ₹ 5 lacs. 4. In reply, the ld. DR vehemently supported the order of the AO and the CIT(A). It was the submission that though the Assessee has filed return by applying provisions of Sec. 44AF there is no bar from verifying the books of accounts. It was the submission that the AO had never directed the Assessee to apply the provisions of Sec. 44AF. It was the submission that it was only on account of a survey conducted on the Assessee on 24.6.2005 that the statutory payments having not been paid have been noticed. It was the submission that the provisions of Sec. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... senting statutory liability and such other expenses claimed in the profit and loss account unless same has been paid before the due date of filing the return. The statutory liability in the present case has not been paid before the due date of filing the return. Further, the non-obstante clause in Sec. 43B has a far wider amplitude because it uses the words notwithstanding anything contained in any other provisions of this Act . Therefore, even assuming that the deduction is permissible or the deduction is deemed to have been allowed under any other provisions of this Act, still the control placed by the provisions of Sec. 43B in respect of the statutory liabilities still holds precedence over such allowance. This is because the dues to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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