GENERAL LIFESCIENCE DISTRIBUTORS GMBH,MUMBAI vs. COMMISSIONER OF INCOME TAX (APPEALS)-54, MUMBAI

O R D E R Per N.K. Choudhry (JM): These appeals have been preferred by the Assessee against the orders both dated 11/05/2023 impugned herein passed by the Ld. Commissioner of Income-tax (in short, Ld. Commissioner) under section 250 of the Income- tax Act, 1961 (in short, the Act) for the A.Y.2012-13, whereby the Ld. Commissioner upheld the Assessment order dated 27/12/2019 passed under section 144 read with section 147 of the Act as well as the penalty order dated 21/09/2021 passed under section 271(1)(c) of the Act, respectively.

2 ITA 2422 & 2423/Mum/2023 General Lifescience Distributors Gmbh 2. First we are inclined to decide appeal i.e. as a lead case which pertains to confirmation of assessment order. At the outset, we observe that assessment order dated 27/12/2019 under section 144 read with section 147 of the Act was passed, against which the Assessee though preferred its appeal by e-filing, mode on 21/12/2022, however, inspite of affording various opportunities of being heard by the Ld. Commissioner, neither appeared nor substantiated the delay of approximately 33 months in filing the appeal before the Ld. Commissioner. Therefore, the Ld. Commissioner in the constrained circumstances and in the absence of substantive material and / or reasonable cause, which the Assessee has failed to establish, dismissed the appeal of the Assessee in limine on the point of limitation. The Assessee being aggrieved, is in appeal before us.

3 ITA 2422 & 2423/Mum/2023 General Lifescience Distributors Gmbh 3. That I was the erstwhile shareholder and ex-director in the company by the name and style General Lifescience Distributors Gmbh, incorporated in Seychelles bearing Registration Number 046004 having address at Suite 9, Ansuya Estate, Revolution Avenue, Victoria, Mane, Seychelles.

6. That while in operation, the company General Lifescience Distributors Gmbh was involved in the business of import and export of pharmaceutical products.

4. The Assessee, on the basis of aforesaid facts as stated in the affidavit mainly claimed that its director, Mr. Jacob Sporon Fielder, who was mainly operating the business of the Assessee company was in fact detained by the Police in the jurisdiction of United Kingdom from March, 2018 to October, 2021 and on expiry of detention in the United Kingdom, he returned to India, somewhere in the month of October, 2021 and after returning he realized that there have been proceedings initiated by the revenue department against the Assessee, which resulted into passing of an ex-parte assessment dated 27/12/2019 under section 144 r.w.s. 147 of the Act against which though the appeal was filed by the wife of the Assessee in manual form; however, the same was not entertainable. Therefore, the Assessee, in order to regularize the appeal filed manually, filed an appeal on-line in the income-tax portal on 21/12/2022 along with an application for condonation of delay in filing the appeal on-line. As the Assessee company is no longer in existence, and, therefore, asked erstwhile shareholder/Director Mr.Jacob Sporon Fielder to sign the instant appeal as Mr. Jacob Sporon Fielder, had no access to telephone or internet and, therefore, could not manage the business activities and comply with the statutory notices, which resulted into initiation of multiple proceedings against him under various laws. However, on return to India in October, 6 ITA 2422 & 2423/Mum/2023 General Lifescience Distributors Gmbh 2021, it took some time to take stock of various proceedings and the legal remedies to be pursued. Thereafter the appeal was filed electronically on 22/12/2022 along with an application for condonation of delay. Hence, considering peculiar facts and circumstances of the case, the delay occurred before the Ld. Commissioner may be condoned by imposing any condition including reasonable cost etc., which the Assessee undertakes to comply with. Considering the peculiar facts and circumstances as the Assessee’s main Director/shareholder Mr. Jacob Sporon Fielder, who was operating the Assessee company, in fact, was entangled in various litigations including detention in the jurisdiction of United Kingdom from March, 2018 to October, 2021 and, therefore, could not pursue the assessment proceedings, which resulted into passing the assessment order dated 27/12/2019 as ex-parte under section 144 read with section 147 of the Act. As the director, Mr. Jacob Sporon Fielder was in detention during the year 2019, 2020 & 2021 upto October, therefore, could not file the appeal before the Ld. Commissioner upto October, 2021. Further, after coming to India, took stock of the various proceedings and started pursuing the legal remedies and consequently on 22/12/2022 filed the appeal electronically before the Ld. Commissioner. Though there is gap of one year as the Assessee’s director returned back to India in the month of October, 2021, but the appeal was filed only on 22/12/2022, therefore, the Assessee through tried to demonstrate the reasons for not filing the appeal in time before the Ld. Commissioner, however, something is lacking in the said claim of the Assessee, as the gap of one year is not convincing. However, if one consider the facts and circumstances in its entirety, then the claim of the Assessee seems to be genuine which requires lenient view; hence we, by considering the peculiar facts and circumstances as the assessment order dated 7 ITA 2422 & 2423/Mum/2023 General Lifescience Distributors Gmbh 27/12/2019 was passed as ex-parte U/s 144 read with section 147 of the Act and thereafter from March 2020 onwards Covid-19 period was started and the Hon’ble Apex Court excluded the period from March 15, 2020 to February 28, 2022 while computing the period of limitation for filing of any suit, appeal, application, or proceeding ; Ld. Commissioner decided the appeal filed by the Assessee in limine but not on merit; even otherwise no prejudice shall be caused to the Revenue Department if the case is directed to be decided on merit; substantial justice also demands that proper adjudication of the case is required to be done; hence, we are inclined to set aside the ex-parte order passed by the Ld. Commissioner and consequently, remanding the instant case to the file of the Ld. Commissioner or decision on merit, but subject to deposit of Rs.51,000/- in the Prime Minister’s National Relief Fund (PMNRF) within 30 days of receipt of this order. Suffice to say, the Ld. CIT(A) shall afford reasonable opportunity to the Assessee and in case of further default, the Assessee shall not be entitled for any leniency.

5. Coming to 27/12/2019 passed under section 144 read with section 147 of the Act, against which the appeal filed by the Assessee was dismissed by the Ld. Commissioner as ex-parte, as we have already set aside the order passed by the Ld. Commissioner in quantum appeal and remanded the case to the file of the Ld. Commissioner for decision afresh, hence, impugned order in this case also set aside and case is remanded in the same terms to the file of the Ld. Commissioner but subject to deposit of Rs.51,000/- in the Prime Minister’s National Relief Fund (PMNRF) within 30 days of receipt of this order. Suffice to say, the Ld. CIT(A) shall afford reasonable opportunity to the Assessee and in case of further default, the Assessee shall not be entitled for any leniency.

8 ITA 2422 & 2423/Mum/2023 General Lifescience Distributors Gmbh

Order pronounced in the open court on 22/11/2023.