JUDGMENT : BHARGAV D. KARIA, J. 1. Heard learned advocate Mr. Manish J. Shah for the appellant and learned Senior Standing Counsel Mr. Karan Sanghani for the respondent-State. 2. This Tax Appeal is preferred under section 260A of the Income Tax 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? C. Whether on the facts and in the circumstances of the case, the order of the Hon’ble ITAT can be stated to be perverse?” 3. The appeal is admitted for consideration of the above substantial questions of law. 4. Having regard to the controversy arising in this appeal which is in narrow compass, with the consent of the learned advocates for the respective parties the same is taken up for final hearing. 5. Brief facts of the case are that the appellant filed return of income for A.Y. 2007-08 declaring total income of Rs. 30,235/- on 20.03.2018. Thereafter, a notice under section 148 of the Act was issued for reopening of the assessment on 27.03.2014. Assessment order under section 143(3) read with section 147 was passed by the Assessing Officer on 20.03.2015 making addition of Rs. 17,71,655/-. 6. Being aggrieved, the appellant preferred Appeal by filing Form No. 35 before the Commissioner of Income Tax (Appeals)-3 Surat. In Form No. 35, the appellant mentioned address of communication being “33-34, Intercity Township, Near Kiran Motors, Puna-Kumbharia Road, Surat-395 010”. 7. The CIT (Appeals) passed an order upholding the capital gain of Rs. 11,95,050/- to be bogus vide order dated 08.03.2017. In Form No. 35, the appellant mentioned address of communication being “33-34, Intercity Township, Near Kiran Motors, Puna-Kumbharia Road, Surat-395 010”. 7. The CIT (Appeals) passed an order upholding the capital gain of Rs. 11,95,050/- to be bogus vide order dated 08.03.2017. The appellant was not served with the copy of the order and accordingly, the appellant preferred application under the Right to Information Act, 2005, which was disposed of by order dated 21.06.2023 wherein, it was informed to the appellant that the order passed by the CIT(Appeals) 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 appeal before the Tribunal along with an application to condone the delay of 2208 days in preferring appeal along with affidavit explaining the cause for delay. 12. The Tribunal, however, dismissed the appeal on the ground of limitation by observing as under: “8. I have heard the rival arguments made by both the sides and perused the material available on record. I find that assessee filed the appeal after expiry of more than 6 years ( 2208 days). Admittedly, the assessee filed the appeal knowing the result of her sister case (Smt. Prabhaben Prakashbhai Patel (Gami) in ITA No.3497/AHD/2015 for A.Y, 2007-08, order dated 14.06.2021. The Tribunal order in sister's case is dated 14,06.2021, whereas the assessee under consideration filed the appeal before this Tribunal on 25.05.2023, this clearly shows that assessee wants to take advantage of covered case (sister's case), otherwise, as I have noted above that assessee never thought to file the appeal within the period of 6 years. The Tribunal order in sister's case is dated 14,06.2021, whereas the assessee under consideration filed the appeal before this Tribunal on 25.05.2023, this clearly shows that assessee wants to take advantage of covered case (sister's case), otherwise, as I have noted above that assessee never thought to file the appeal within the period of 6 years. Therefore, considering the above facts, I find that there was no sufficient cause explained by the ld Counsel, for not presenting the appeal within the limitation period, hence delay should not be condoned. 9. At the cost of repetition, I state that delay in filing the present appeal for assessment year 2007-08 is more than 6 years and I note that when assessee’s sister case (appeal) was decided by the Tribunal in favour of assessee’s sister, then only, after observing the favourable results, the 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 cannot be blamed. The assessee himself stated that in Form No.35, the old address was mentioned by him. It is like putting the cart before the horse, that is, assessee did mistake himself and thereafter saying that he is correct. The Revenue authorities sent the order of ld CIT(A), on time, on the address mentioned by the assessee in Form No.35, therefore, assessee cannot make excuse now stating that he did not get the order of CIT(A) on time, hence delay has occurred, which may be condoned, such approach is not acceptable to condone the delay of more than 6 Years. 11. Moreover, the Assessee himself filed the appeal before Ld. CIT(A), and as per assessee’s instruction, the Authorized Representative (AR) of the assessee appeared before Ld. 11. Moreover, the Assessee himself filed the appeal before Ld. CIT(A), and as per assessee’s instruction, the Authorized Representative (AR) of the assessee appeared before Ld. CIT(A), therefore assessee should know, by common sense, the result of Ld.CIT(A) may come very soon and Conduct the necessary enquiries, as to why there was delay in delivering the order of Ld.CIT(A). A vigilant assessee after filing appeal before Ld.CIT(A) and after appointing AR which appeared before Ld.CIT(A) during appellate authorities, should know by commonsense that order of Ld.CIT(A) would likely to come very soon, if the order of Ld.CIT(A) Could not reach to assessee, then assessee himself or AR of the assessee Should have enquired in the office of Ld.CIT(A) that why appellate order Was not despatched to the assessee, rather than to wait for six years. Therefore, such huge delay of six years cannot be condoned merely 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 application and the order passed therein dated 21.06.2023 along with copy of the cover in which, the order was sent and returned by the Postal Department with remark “Left”. 14. It was therefore submitted that the order passed by the CIT(Appeals) was never served upon the appellant. It was further submitted that the appellant filed the appeal before the Tribunal within the prescribed period of 60 days from the date of receipt of the order of the CIT(Appeals). It was submitted that the copy of the order of the CIT (Appeals) was obtained by the appellant on 12.05.2023 and the appeal was filed on 24.05.2023. 15. It was further submitted that the appellant filed the appeal before the Tribunal within the prescribed period of 60 days from the date of receipt of the order of the CIT(Appeals). It was submitted that the copy of the order of the CIT (Appeals) was obtained by the appellant on 12.05.2023 and the appeal was filed on 24.05.2023. 15. It was therefore, submitted that there is no delay on the part of the appellant to file appeal, however, there is delay of 2208 days from the date of order of CIT(Appeals). 16. In support of his submissions, reliance was placed on the decisions in case of N.Balakrishnan vs. M.Krishnamurthy reported in (1998) 7 SCC 123 and in case of Jayalakshmi Cloth Stores vs. ITO reported in (1981) 132 ITR 764 (AP) which were also relied upon before the Tribunal. 17. It was therefore, submitted that the appellate Tribunal ought to have condoned the delay and heard the appeal on merits instead of dismissing the appeal on the ground of limitation. 18. It was further submitted that the Tribunal has been swayed away by the order passed in case of sister of the assessee which is not a relevant factor for considering the question of delay in preferring appeal by the appellant. It was therefore 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 passed by the CIT(Appeals) till the appellant receive the copy of the same on 12.05.2023. 20. On the other hand, learned Senior Standing Counsel Mr. It was therefore, submitted that there was no effective service of the order passed by the CIT(Appeals) till the appellant receive the copy of the same on 12.05.2023. 20. On the other hand, learned Senior Standing Counsel Mr. Karan Sanghani appearing for the respondent submitted that the appellant has been served with the copy of the order at the address mentioned by the appellant in Form No. 35 and as the same was returned with remark from the postal department as “Left” would be an effective service of the order and therefore, the Tribunal has rightly dismissed the appeal on the ground of limitation. 21. It was further submitted that the appellant ought to have approached the Tribunal after knowing the fact that in case of the sister of the appellant, the appeal was allowed by the Tribunal and thereafter, the appeal was preferred by the appellant, otherwise the appellant did not have any intention to file appeal before the Tribunal. It was therefore, submitted that there is no explanation tendered by the appellant for delay caused in filing the appeal. 22. It was submitted that the Tribunal has rightly considered the factum of the fact that the appellant preferred the appeal only after the favourable result was pronounced in case of the sister of the appellant and hence, the Tribunal has rightly dismissed the appeal on the ground of limitation. 23. Having heard learned advocates for the respective parties and having considered the facts of the case it is not in dispute that appellant mentioned the address of the communication of notice etc. in Form 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. 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 by the Tribunal is found to be perverse as the Tribunal has recorded incorrect facts in para 10 of the order which is reproduced herein above, more particularly, by recording fact “on the address mentioned in Form No. 35, order of the CIT(A) was delivered hence, the department cannot be blamed.” The above findings of the Tribunal are contrary to the record as evident from the facts narrated here-in-above. In such circumstances, we are of the opinion that the Tribunal ought to have condoned the delay in preferring the appeal by the appellant and decide the case on merits. The impugned order passed by Tribunal is therefore, quashed and set aside. The questions proposed by the appellant and the substantial questions framed are answered in favour of the assessee and against the Revenue. The appeal is accordingly allowed. The delay of 2208 days in preferring appeal is hereby ordered to be condoned and the matter is remanded back to the Tribunal to be decided on merits of the case. It is clarified that we have not gone into merits of the matter. The Tribunal is at liberty to decide the same after providing an opportunity of hearing to the appellant in accordance with law.