TaxTMI 
TaxTMI 
TaxTMI 
2024 (12) TMI 564
X X X X Extracts X X X X
X X X X Extracts X X X X
....ax Act,1961 (for short 'the Act'] on the following substantial questions of law arising out of the order dated 29.12.2023 passed by the Income Tax Appellate Tribunal, 'SMC' Bench, Surat (for short 'the Tribunal'] in ITA 372/SRT/23 for A.Y. 2007-08: "A. Whether on the facts and in the circumstances of the case, the Hon'ble ITAT erred in law and in the facts of the case, in holding that, there is a delay in filing appeal before the Hon'ble ITAT when the appeal had been filed within prescribed time period from the date of actual receipt of the order appealed against? B. Whether on the facts and in the circumstances of the case, the Hon'ble ITAT erred in law and in the facts of the case, in not condoning the delay in filing appeal before it....
X X X X Extracts X X X X
X X X X Extracts X X X X
....als) dated 08.03.2017 was sent on the address mentioned in the Form No. 35 i.e. Trikam Nagar Society No. 1, L.H. Road, Surat, through Speed Post on 17.02.2017 which was returned by the Postal Department with the remark "Left". 8. The appellant therefore, obtained the copy of the order dated 08.03.2017 passed by the CIT (Appeals) on 12.05.2023 on coming to know about the same in view of the outstanding demand being reflected in the income tax portal. 9. The appellant thereafter preferred RTI application on 23.05.2023 which was disposed of by order dated 21.06.2023 mentioning the same. 10. The appellant was also provided with the copy of the envelop in which, the order was sent through Speed Post. 11. The appellant thereafter preferred ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he assessee took the steps to file the appeal. The assessee in present case filed this appeal very late, with the intention to take the advantage of covered case in assessee's own sister case. Till the time assessee's sister case was not decided by the Tribunal, the assessee did not file appeal, however, when Tribunal decided assessee's sister case in favour of her, then only, the assessee under consideration, filed the appeal, this clearly shows mala Jide intention to take the advantage of the covered case, hence delay should not be condoned. 10. The Assessee filed the appeal before Ld. CIT (A) himself and stated the address on Form No. 35. On the address mentioned in Form No. 35, the order of Ld. CIT (A) was delivered, hence Department ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ely because there was inadvertent mistake on the part of the assessee to Mention old address in Form No. 35. 12. xxx xxx xxx 13. Considering the above facts and circumstances and respectfully following the latest binding judgment of Hon'ble Supreme Court in the case of Majji Sannemma @ Sanyasirao (supra), the delay should not be condoned. Accordingly, I do not condone the delay, and therefore assessee's appeal is dismissed." 13. Learned advocate Mr. M.J. Shah for the appellant submitted that the Tribunal has recorded the incorrect facts of service of the order passed by the CIT(Appeals) upon the appellant. Learned advocate Mr. M.J. Shah has relied upon the paper book of the documents filed before the Tribunal which included the RTI app....
X X X X Extracts X X X X
X X X X Extracts X X X X
....refore submitted that the impugned order passed by the Tribunal is perverse as the Tribunal has failed to consider the relevant factors for not filing the appeal by the appellant and has considered irrelevant factors for dismissing the appeal on the ground of limitation. 19. Learned advocate Mr. Shah has further pointed out from Form No. 35 in the appeal filed before the CIT (Appeals) wherein, the appellant has mentioned the address for communication and service of notice. It was pointed out that CIT(Appeals) sent the order at the address mentioned in the cause title of the Form 35 and not at the address mentioned by the appellant to which the notice to be sent. It was therefore, submitted that there was no effective service of the order p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rm No. as 33-34, Intercity Township, Near Kiran Motors, Puna-Kumbharia Road, Surat-395 010". It is also not in dispute that the respondent did not serve the order passed by the CIT (Appeals) on the aforesaid address. 24. The appellant received the order passed by the CIT(Appeals) on 12.05.2023 and immediately thereafter, on 24.05.2023, the appeal was preferred before the Tribunal. Therefore, there is no delay on the part of the appellant to prefer the appeal after receipt of the order of the CIT (Appeals). This fact is further fortified from the information provided by the appellant in the Right to Information Act,2005, which was also produced before the Tribunal by the appellant. 25. In view of the above facts, the impugned order passed ....