TMI Blog2019 (5) TMI 1806X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Since, the Tribunal while passing the impugned order has not considered those decisions and the impugned order is completely silent about the decision relied upon by the assessee. Therefore, in our considered view there is a mistake in the impugned order to the extent of not considering the decisions relied upon by the assessee. Constructed area - Finding of the Tribunal is not based on the constructed area but only for recording the complete facts the percentage of the construction was mentioned in the impugned order. Even the AO as well as ld. CIT(A) while allowing the deduction in respect of cost of one plot of land and construction of house has not taken the percentage of covered area as ground for disallowance. Since the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate proceedings although some of them were directly applicable on the issue in hand. Had these decisions been considered, perhaps the subjected order might have been different. 3. 1.1Mistake 1.1: The decision in the case of ACIT vs. Narendra Mohan Uniyal (2009) 34 SOT 152 (Del) (DPB 13-17), was directly relevant and applicable on the facts of the present case. Particularly in the context of the fact of the adjacent plots and the land of one plot being opportunent to the land of the other plot No. 4 where construction is admitted. A bare reading of this said decision suggest that the fact of the case in hand were rather on a stronger footing. 3.1.2Mistake1.2: Further the case of CIT vs. Sardarmal Kothari (2008) 217 CTR 414 (Mad) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dated 09/10/2015 (DPB 112) wherein, the Hon ble ITAT has held even a 6%construction on a big sized plot, to be eligible for a deduction u/s 54 of the Act holding that the law doesn t prescribe any particular manner or the quantum of the construction but it should be a residential house. However, there is absolutely no whisper of such contention and the ITAT Jaipur decision in the entire subjected order. 3.3. Mistake 3:- The Hon ble ITAT at page 5 para 2.4 has observed that: The other three separate adjacent plots No. 1,2 and 3 measuring 492.75 sq. yards, 486 sq. yards and 480.33. sq. yards (totalling to 1459.08 sq. yards) respectively are vacant and these are not being used by the assessee. However, there was nothing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n others). Thus, the Hon ble ITAT has recorded an incorrect finding of the fact and ignored the submission made before it.The submission made before the ld. CIT (A) were also relied upon before the Hon ble ITAT. 3.5Mistake 5: Lastly, decisions were cited also on the point of a liberal interpretation of incentive position because in this case, the eligibility of the assessee stood proved therefore, the incentive provisions were to be interpreted liberally while applying the same. However, there is no whisper on this aspect and appears have completely escaped the kind intention of the Hon ble ITAT. At the time of hearing, the ld. AR of the assessee has submitted that the assessee does is not press the miscellaneous application in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh after considering the decisions relied upon by the assessee. 4. On the other hand, the ld. DR has submitted that the relied sought by the assessee in the miscellaneous application does not fall in the category of rectification of mistake apparent on record U/s 245(2) of the Act. The assessee is seeking review of the decision taken by the Tribunal on merits which is not permissible. 5. Having considered the rival submissions as well as relevant material on record we note that the assessee has relied upon by the various decisions as reiterated in the miscellaneous application. As regard mistake no. 1 the copies of the decisions relied upon by assessee are also on record of the appeal file and those decisions have some relevance on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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