Non-payment of statutory liability before due date of filing of return would attract disallowance under Section 43B even if assessee had offered his income on presumptive basis

ITAT makes sec. 43B disallowance even when assessee opts for presumptive taxation scheme-
June 19, 2015[2015] 58 taxmann.com 267 (Panaji - Trib.)
IT: Non-payment of statutory liability before due date of filing of return would attract disallowance under Section 43B even if assessee had offered his income on presumptive basis.
ISSUE
Whether disallowance of Section 43B could be made even when assessee opted for presumptive

taxation Scheme?
FACT
In the instant case, assessee has offered his income to tax on presumptive basis under Section 44AF. Provisions of Section 44AF are not applicable from assessment year beginning on or after the April 1, 2011. Thus, it can be inferred that the principal laid down by the ITAT would squarely apply when taxpayer has opted for presumptive taxation scheme under Section 44AD or Section 44AE.

Tribunal held in favour of revenue as under:
Section 44AF starts with the words "notwithstanding anything to the contrary contained in Sec. 28 to 43C", whereas section 43B starts with the words "notwithstanding anything contained in any other provisions of this Act".

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.

Hence, disallowance could be made by invoking the provisions of Sec. 43B in respect of the statutory liabilities, even though the assessee offered his income to tax on presumptive basis