The Tribunal erred by misapplying delay standards and procedural provisions, failing to recognize sufficient cause under Section 253(5) for the petitioner’s late cross-objection.

JUDGMENT :

BHARGAV D. KARIA, J.

ORDER IN SPECIAL CIVIL APPLICATION NO. 7988 OF 2025:

1. Heard learned advocate Mr. Manish Shah for the petitioner and learned Senior Standing Counsel Ms. Maithili Mehta for the respondent.

2. By this petition under Article 227 of the Constitution of India, the petitioner has challenged legality and validity of the order dated 16.10.2024 passed by the Income Tax Appellate Tribunal, Rajkot Bench, Rajkot (for short ‘the Tribunal’) in Misc. Application No. 8/RJT/2022 arising out of Cross Objection No.1/Rjt/2004.

3. Having regard to the controversy involved which is in narrow compass, with the consent of the learned advocates for the parties, the matter is taken up for hearing.

4. Rule returnable forthwith. Ms. Maithili Mehta, learned Senior Standing Counsel waives service of notice of rule for the respondent.

5. Learned advocate Mr. Manish Shah appearing for the petitioner submitted that the Tribunal has rejected the Misc. Application filed by the petitioner though it is mentioned in the order that there was typographical error in quoting the number of days of delay while rejecting cross-objection filed by the petitioner in the Appeal preferred by the respondent before the Tribunal.

6. The brief facts of the case are as under:

6.1 A search was carried out at the residence and business premises of the petitioner on 16.2.1999.

6.2 An Assessment Order dated 30.3.2001 was passed under Section 158BC of the INCOME TAX ACT , 1961 (for short ‘the Act’).

6.3 Being aggrieved by the Assessment Order, the petitioner preferred an appeal before the Commissioner of Income Tax (Appeals) (For short ‘CIT (Appeals)’ who by order dated 31.7.2003 deleted certain additions and partly allowed the appeal filed by the petitioner.

6.4 Being aggrieved by the order passed by the CIT (Appeals), Revenue Department preferred an appeal before the Tribunal being IT (SS)A No.106/Rjt/2003.

6.5 The petitioner received a notice issued by the Tribunal intimating about filing of the appeal by the Revenue. The petitioner thereafter filed a cross-objection in the said appeal being CO No.1/Rjt/2004 belatedly by 31 days. The petitioner, therefore, filed an application in form of an affidavit to condone the delay along with Memo of the cross-objection in Form 36A.

6.6 The petitioner explained the cause for the delay in the affidavit and contended that the petitioner did not have any income earning activity at Rajkot for sometime and he had shifted to Ahmedabad with his family with help of a relative who offered him a job and hence the petitioner could not get the envelope containing the appeal memo in Form 36 and grounds of appeal filed by the revenue department in time and, therefore, the petitioner could not file the cross-objection within the prescribed time.

6.7 The Tribunal, by common order dated 23.1.2009, dismissed the appeal filed by the revenue on merits and also dismissed the cross-objection filed by the petitioner by stating that the cross-objection is filed after 8 to 9 months and the petitioner has not provided any valid reason to condone the delay. The para-4 of the order dated 23.1.2009 reads as under:

“4.The assessee has filed CO on 20.1.2004 i.e. it is out of time by 8 to 9 months. The assessee has filed application for condonation of delay. However, since the delay is considerable and no valid reasons has been given the CO of the assessee is dismissed as being time barred by limitation.”

Except the above observation, there is no finding of the Tribunal regarding the cross-objection filed by the petitioner.

6.8 The resp