2015 (6) TMI 648 - AT - Income Tax

High Court condones appeal delay, directs Tribunal to hear on merits. Sec. 43B prevails over 44AF.

Good Luck Kinetic Versus ITO, Ward-2, Margao

The High Court of Bombay at Goa condoned the delay in filing the appeal by the Assessee against the CIT(A) order for A.Y 2006-07, directing the Tribunal ... Addition u/s 43B - statutory liabilities which had not been paid by the Assessee before the due date - Applicability of Sec. 43B when the return is filed applying the provisions of Sec. 44AF - Held that:- 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 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 provision is applied, then, the books of accounts are deemed not to be available for the purpose of computation of the profit and gains of the business. Consequently, we are of the view that the addition representing the sundry creditors as made by the AO and as confirmed by the ld. CIT(A) is liable to be deleted and we do so. - Decided in favour of assessee. Issues:1. Delay in filing appeal condonation.2. Addition under Sec. 43B for statutory liabilities.3. Addition for sundry creditors under Sec. 44AF.4. Consideration of loss as per books of accounts.Delay in filing appeal condonation:The appeal was filed by the Assessee against the CIT(A) order for A.Y 2006-07, delayed by 253 days. The Tribunal initially dismissed the appeal due to the uncondoned delay. However, the High Court of Bombay at Goa later condoned the delay and directed the Tribunal to hear the appeal on merits. The appeal was presented before the Tribunal, with representation from both parties.Addition under Sec. 43B for statutory liabilities:The Assessee, a two-wheeler dealer, filed returns under Sec. 44AF with a 5% rate. The AO made additions under Sec. 43B for unpaid statutory liabilities and sundry creditors. The Assessee argued that Sec. 44AF excludes Sec. 28 to 43C provisions, hence no further additions should be made. The Tribunal analyzed the non-obstante clauses in Sec. 44AF and Sec. 43B, concluding that Sec. 43B's wider scope prevails over Sec. 44AF, allowing disallowance for unpaid statutory liabilities.Addition for sundry creditors under Sec. 44AF:Regarding the addition for sundry creditors, the Tribunal ruled that under Sec. 44AF, once the presumptive tax provision is applied, books of accounts are not considered for profit computation. Therefore, the addition for sundry creditors was deemed impermissible and was deleted.Consideration of loss as per books of accounts:The Assessee's alternative argument to consider the loss per books of accounts was dismissed since the Tribunal upheld the assessment under Sec. 44AF. As a result, the appeal was partly allowed, with the addition for sundry creditors being deleted. The judgment was pronounced on 15/06/2015.