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2015 (5) TMI 990 - AT - Income TaxDisallowance of provision of expenses under section 40(a)(ia) - non deduction of tds - Held that:- The amendment made to section 40(a)(ia) of the Act vide Finance Act, 2010 which states that the due date of deposit of TDS will be the date of filing of return u/s 139(1) is applicable retrospectively and further that of the Hon'ble Calcutta High Court in the case of “CIT v. Virgin Creations” [2011 (11) TMI 348 - CALCUTTA HIGH COURT] wherein it has been held that the amendment to section 40(a)(ia) by the Finance Act, 2010 is to be considered as retrospective in as much as it is only toward mitigating a hardship and, thus, is to be considered as curative in nature. The Ld. A.R. of the assessee has been fair enough to admit that even the Ld. CIT(A) has passed the impugned order without verification of the details submitted by the assessee. Even there is no finding that whether the liability was ascertained for which the provision was made and whether the identity of the prospective payees was established or not. The Ld. A.R. has fairly admitted that the entire issue requires re-examination at the end of the AO. We therefore set aside the impugned findings of the Ld. CIT(A) on this issue and restore the matter to the file of the AO for examination afresh and then to pass a speaking order in accordance with law after duly considering all the relevant contentions of the assessee on this issue. Disallowance on account of AIR mismatch - Held that:- In the absence of any material brought by the revenue authorities that the assessee has received amount more than the professional fees which has been declared by him in the P&L account and when the professional income declared by the assessee far exceeds the professional fees shown in the AIR information, then additions solely based on the AIR information are not sustainable. Un-reconciled amount as per the AIR information has held that the addition cannot be made solely on the basis of AIR information, especially, when the assessee denies any such receipt as the burden to prove such receipts is on the AO as the assessee cannot be asked to prove the negative. - Decided in favour of assessee.
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