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TMI Blog2023 (5) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... e allowed as deductable expenses - whether the claim of the assessee made in the revised return has rightly been considered by the Ld. CIT(A) without having any findings on it returned by the AO? - second round of litigation - HELD THAT:- We are of the considered view that when factual aspect qua claim made by the assessee has not been examined by the AO the Ld. CIT(A) without issuing notice to the assessee or without calling any remand report from the AO could not have decided the same. A.Rs for the parties to the appeal have unanimously contended that in such circumstances to decide the issue once for all the issue should be remitted back to the AO to decide the claim of the assessee afresh after providing opportunity of being heard by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion amounting to Rs. 10,00,000/- to Mr. Alliance Intermediaries Network P. Ltd. for use of their account. 4. The learned CIT(A) grossly erred in confirming the order of AO towards addition of commission paid to M/s. Alliance Intermediaries Network Pvt. Ltd. amounting to Rs. 10,00,000/- 5. The learned CIT (A) ought to have given due consideration to the fact that the said amount was paid to M/s. Alliance Intermediaries Network Pvt. Ltd. by account payee cheques issued from the Account of the appellant. 6. The learned CIT(A) ought to have given due consideration to the fact that an affidavit duly signed by Shri Jayesh Sampath, one of the director of M/s. Alliance Intermediaries Network Pvt. Ltd., admitting the recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO thereafter framed the assessment on 20.03.2014 at the income of Rs.7,58,670/-. 3. The assessee challenged the assessment order before the Ld. CIT(A) which was dismissed. Thereafter the assessee filed the appeal before the Tribunal which has restored the matter back to the AO to make fresh assessment after allowing opportunity to the assessee to cross examine Shri Mukesh Choksi vide order dated 14.06.2017. 4. Thereafter in accordance with the directions issued by the Tribunal the AO passed the order dated 03.10.2018 under section 143(3) read with section 147 and 254 of the Act by assessing the total income at Rs.7,58,670/-. 5. The assessee carried the matter before the Ld. CIT(A) by way of filing appeal who has partly allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. Moreover, the contention of the assessee that Shri Jayesh Sampath, one of the another Directors of the said concern of Shri Mukesh Choksi, had filed an affidavit accepting having received the said sub-brokerage payment, is not very relevant since it is an open secret that Shri Mukesh Choksi was the mastermind and all the others only worked under his control. As regards, the assessee's claim of expenses on account of salary wages of Rs. 9,00,000/- and the deductions u/s Chapter VI-A of Rs. 92,924/-, it is observed that the AO has not at all examined the various evidences in respect of this claim which were submitted before the Hon'ble ITAT and also before him in the 2nd round of proceedings and therefore cannot be considered to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as deductable expenses. 9. Undisputedly in the first round of litigation the assessee has not claimed deduction of Rs.10,00,000/- claimed to have been paid as brokerage to M/s. Alliance Intermediaries Network Pvt. Ltd. It is also not in dispute that in the revised return the assessee has claimed this amount of Rs.10,00,000/- having been paid to M/s. Alliance Intermediaries Network Pvt. Ltd. which has not been considered by the AO in the order dated 03.10.2018 passed under section 143(3) read with section 147 254 of the Act while giving appeal effect to the Tribunal order dated 14.06.2017. It is also not in dispute that the Ld. CIT(A) has considered the amount of Rs.10,00,000/- claimed by the assessee in its revised return and made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- made by the assessee has not been examined by the AO the Ld. CIT(A) without issuing notice to the assessee or without calling any remand report from the AO could not have decided the same. The Ld. A.Rs for the parties to the appeal have unanimously contended that in such circumstances to decide the issue once for all the issue should be remitted back to the AO to decide the claim of the assessee afresh after providing opportunity of being heard by considering the revised return as a valid one. However, rest of the addition made by the AO and confirmed by the Ld. CIT(A) are not to be disturbed. 13. In view of what has been discussed above, impugned order passed by the Ld. CIT(A) is hereby set aside to the extent of addition of Rs.10,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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