IMPORTANT POINT
The right to appeal should not be compromised due to ineffective service of notice, and administrative errors must not preclude access to justice.

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. 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, t