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TMI Blog2022 (2) TMI 1086X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. At the very outset, it was submitted by the ld. counsel for the assessee, Shri Srivastava, that the appeals under reference are covered against it by the common order by the Tribunal in its' own case for AYs. 1994-95 to 2001-02 (in ITA Nos. 47-54/Jab/2003, dated 19.6.2006), copy of which stands placed on record. The assessee, a partnership firm, is engaged in business of plying trucks. The sole issue in the instant appeals, he continued, is 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. On the Bench stating that the law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such goods carriages, the income of such business chargeable to tax under the head Profits and gains of business or profession shall be deemed to be the aggregate of the profits and gains, from all the goods carriages owned by him in the previous year, computed in accordance with the provisions of sub-section (2). (2) For the purposes of sub-section (1), the profits and gains from each goods carriage shall be an amount equal to seven thousand five hundred rupees for every month or part of a month during which the goods vehicle is owned by the assessee in the previous year or an amount claimed to have been actually earned from such vehicle, whichever is higher. (3) Any deduction allowable under the provisions of sections 30 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee and determine the sum payable by the assessee on the basis of assessment made under sub-section (3) of section 143. (7) Notwithstanding anything contained in the foregoing provisions of this section, an assessee may claim lower profits and gains than the profits and gains specified in sub-sections (1) and (2), if he keeps and maintains such books of account and other documents as required under sub-section (2) of section 44AA and gets his accounts audited and furnishes a report of such audit as required under section 44AB. Explanation.-For the purposes of this section,- (a) the expressions goods carriage , gross vehicle weight and unladen weight shall have the respective meanings assigned to them in sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the audited accounts. In our considered view such plea is untenable because the amounts, which are to be taken into account while determining the income of the assessee are as per audited accounts and not what is returned by the assessee. Therefore, plea of the assessee in this regard is rejected. As such while concurring (with) the finding and conclusion as drawn by the ld. CIT(A), we uphold his order and dismiss this common ground of appeal of the assessee for all the years.' The opinion of the Tribunal, as apparent, rests on the following premises: (a). The non obstante provision of section 44AE, which is unambiguously clear, is to be read as a whole. (b). The income to be returned and, in any case, assessed, is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. v. CIT [1965] 57 ITR 521 (SC)). 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. 3.3. I, 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 ow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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