2015 (6) TMI 648

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....re the Hon'ble Jurisdiction High Court of Bombay at Goa in ITA NO. 27 of 2014 and the Hon'ble High Court vide order dt. 6.3.2014 has condoned the delay in filing the appeal and directed the Tribunal to dispose the appeal on merits. Consequently, this appeal was posted for hearing today. Shri D.E. Robinson, Advocate represented on behalf of the Assessee and Shri Nishant K., ld. DR represented on behalf of the Revenue. 2. It was submitted by the ld. AR that the Assessee is a dealer in two 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 Rs. 18,07,249/- and the A....

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....arshan Enterprises reported in 308 ITR (A.T) 362 wherein though the appeal was a penalty appeal, the Tribunal had held that the Assessee was under the bona fide impression that under the provisions of Sec. 44AE and 44AF there was no obligation on the Assessee to declare the profits as per the books in the return which were higher than the presumptive profits as per the said section and had consequently cancelled the penalty. It was the further submission that the true effect of the non-obstante 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 ....

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....ced reliance on the decision of the Hon'ble Rajasthan High Court in the case of Oil and Natural Gas Commission reported in 255 ITR 413 to support his argument in respect of the non-obstante clause. It was the submission that consequently the disallowance made by invoking the provisions of Sec. 43B and the addition representing sundry creditors were liable to be deleted. 3. It was an alternative submission that if the books of accounts of the Assessee were to be considered, then, the 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 Rs. 5 lacs. 4. In reply, the ld. DR vehemently supported the order of the AO and the C....

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....siness chargeable to tax under the head „Profits and gains of business or profession‟. It only means that the deduction allowable u/s 28 to 43C is deemed to have been already granted to the Assessee. This is because the said provisions u/s 28 to 43C are provisions relating to the computation of business income of the Assessee. However, a perusal of the provisions of Sec. 43B shows that the said provision is a "restriction" on the allowance of a particular expenditure representing 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....