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2015 (8) TMI 1155 - ITAT KOLKATADisallowance u/s 40(a)(ia) - applicability of provision of section 44AD - whether the provision of section 40(a)(ia) of the Act can be made applicable for the assessee when his income is determined in accordance with the presumptive scheme u/s 44AD of the Act? - Held that:- CIT(A) had called for the copies of the bills and had given a categorical finding that the material portion cannot be bifurcated from the total bill so as to get out of the ambit of the provision of section 194C of the Act. Admittedly, this finding was not refuted by the ld. DR during the course of hearing. - Decided against assessee. The legal provision of section 44AD of the Act shows an overriding effect over other provisions contained in section 28 to 43C of the Act, to hold that the provisions of section 40(a)(ia) of the Act cannot be invoked in the instant case as the income is directed to be determined on presumptive basis u/s 44AD of the Act. Decided in favour of the assessee. Whether section 40(a)(ia) of the Act, in fact and circumstances of the instant case, are applicable in respect of amounts payable on the date of balance sheet and not on the amounts paid before the end of the previous year does not warrant any deliberation as held in the facts and circumstances of the case, the provisions of section 40(a)(ia) per se are not applicable as the income of the assessee is directed to be determined u/s 44AD on presumptive basis. Accordingly, this ground becomes infactuous.
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