-1-

IN THE HIGH COURT OF BOMBAY AT GOA

TAX APPEAL NO. 64 OF 2014

COMMISSIONER OF INCOME TAX.,

... Appellant

Versus

M/S. BORKAR PACKAGING PVT. LTD.,

... Respondent

Ms. Asha A. Desai, Advocate for the Appellant.

Mr. S. R. Rivankar, Advocate for the Respondents.

Coram:- F. M. REIS &

K. L. WADANE, JJ.

Date:- 13th January, 2015

ORAL ORDER

Heard Ms. Asha Desai, learned Counsel appearing for the

Appellant and Shri Rivankar, learned Counsel appearing for the Respondent.

2.

We have heard extensively the learned Counsel appearing for

the Appellant and the Respondent.

3.

The main contention of Ms. Asha Desai, learned Counsel

appearing for the appellant, is that the returns which were filed by the

Assessee-Respondent herein were not within the time prescribed under

Section 139(1) of the Income Tax Act, 1961, as though such returns had to

be filed on or before 30.10.2007, the Respondent filed such returns

electronically on 30.10.2007 but, however, the ITR – V form was sent by the

TXA-64-14

-2-

Respondent by ordinary post was received by the Appellant only on

18.01.2008. The learned Counsel further points out that as such the returns

which were filed electronically, cannot be treated filing of the returns within

time prescribed and, as such, the Respondents were not entitled for the

benefits in terms of Section 80(1)C of the Income Tax Act, 1961. Learned

Counsel further pointed out that in order that the Assessee-Respondent can

be entitled to claim such deductions, the returns have to be filed within the

time stipulated under Section 139(1) of the Income Tax Act, 1961. Learned

Counsel has thereafter taken us through the impugned Order passed by the

Income Tax Appellate Tribunal and pointed out that the Judgment of this

Court relied upon therein is not applicable to the facts of the present case.

Learned Counsel as such submits that there are substantial questions of law

which arise in the present Appeal for consideration of this Court.

4.

On the other hand, Shri S. R. Rivankar, learned Counsel

appearing for the Respondent, has pointed out that the fact finding

authorities below have come to the conclusion that the electronically

generated returns were in fact filed by the Respondent-Assessee on

30.10.2007. The learned Counsel further submits that the time prescribed for

filing such returns in terms of Section 139(1) of the Income Tax Act, 1961, is

30.10.2007 and, as such, according to him, the Assessee has duly complied

with the filing of returns within the time prescribed. Learned Counsel further

pointed out that there was congestion in the electronic system and, as such,

TXA-64-14

-3-

there was a delay in submitting the ITR-V form to the Appellants which

ultimately was sent by the Respondents in January, 2008. Learned Counsel

further pointed out that the contention of the learned Counsel appearing for

the Appellant that the returns have not been filed within the time prescribed

under Section 139(1), cannot be accepted as, according to him, in case of

any defect in such returns, it was incumbent upon the Appellants to exercise

the procedure under Section 139(9) of the Income Tax Act and call upon the

Assessee-Respondent to rectify such defects. Learned Counsel further

pointed out that the very fact that the Appellants did not find any defect would

itself suggest that the returns filed electronically were within the time

prescribed in terms of the provisions of Section 139(1) of the Income Tax Act.

Learned Counsel as such submits that in view of the findings of fact arrived

at by the authorities below, the question of any interference in the impugned

Order under Section 260-A of the Income Tax Act would not arise. Learned

Counsel further pointed out that the Board circular no. 5/2007 is not

applicable to the facts of the present case as, according to him, such