2012 (11) TMI 390 - AT - Income Tax

Recalling of Tribunal s Order - non filing of the copy of judgement of Hon ble Gujarat High Court - Held that - The issue was not decided by ignoring the judgement of Hon ble Gujarat High Court rendered in the case of Radhe Developers 2011 (12) TMI 248 - GUJARAT HIGH COURT but in fact, it was restored back to the file of CIT(A) to decide the matter afresh in the light of this judgement as the same was not made available till the order was dictated - no apparent mistake in the tribunal order. No sale of any flat with terrace alleged area of 1700 sq. ft in two years under consideration - no verification is called for on this issue as has been directed by the Tribunal - Held that - This issue was very much before the CIT(A) in AY 2006-07 as to whether if one of the flats is having built up area of 1700 sq. ft and 1480 sq. ft or has been noted by CIT(A) in his order and he directed the A.O. to verify this aspect and to decide the issue as per law & in 2005-06 it is noted by CIT(A) of his order that the next ground which has been stressed by the A.O. is that there were 2 flats with built up area of 1700 sq. ft. each which disentitled the assessee for deduction, thus no merit in the assessee s contention that no issue in dispute regarding built up area of the flats existed - no apparent mistake in the tribunal order on this aspect also - misc. applications of the assessee dismissed - against assessee.

Summary

Issues:
1. Non-filing of judgment of Hon'ble Gujarat High Court in time.
2. Discrepancy in built-up area of units in assessment years 2005-06 and 2006-07.

Analysis:
1. The appellant contended that the judgment of Hon'ble Gujarat High Court in the case of Radhe Developers was not filed in time, requesting the tribunal order to be recalled. However, the tribunal clarified that they had not ignored the judgment but had sent the matter back to the CIT(A) for reconsideration in light of the late judgment. The tribunal directed the CIT(A) to consider the judgment and make a fresh decision. Therefore, the tribunal found no apparent mistake in its order regarding this issue.

2. The appellant also argued that there was no issue regarding the built-up area of units exceeding 1500 sq. ft in the assessment years 2005-06 and 2006-07. However, upon review, the tribunal found that in the assessment year 2006-07, the CIT(A) had indeed addressed the issue of a flat with a built-up area of 1700 sq. ft and directed the AO to verify it. Similarly, in the assessment year 2005-06, the CIT(A) noted the presence of two flats with a built-up area of 1700 sq. ft each, affecting the assessee's deduction eligibility. The tribunal upheld the CIT(A)'s decision to verify the factual aspects and make a decision based on the law. Therefore, the tribunal concluded that there was no apparent mistake in its order concerning the built-up area discrepancy in both assessment years.

In light of the above analysis, the tribunal dismissed both miscellaneous applications of the assessee, finding no apparent mistake in its orders.