Vinod Chandran, J

We are faced with an interesting situation wherein the assessee claims a deduction as allowable, under a different provision from that claimed in the return; denied however, for reason of the proper procedure of revision of return having not been resorted to. The question of law framed by the revenue who is in appeal is re-framed as follows:

When at the time of assessment, the claim for deduction made in the return is disallowed, whether the assessee is entitled to make an alternate plea by way of mere submission before the Assessing Officer, especially when the statute interdicts even a revision, as per Sub-section(5) of Section 139, after one year from the relevant assessment year or completion of assessment, whichever is earlier ?

We are also inclined to frame an alternate question of law as arising from the order of the Tribunal: Has not the Tribunal erred insofar as allowing the claim under Section 80 G of the Income Tax Act since even if the assessee carried out the air-conditioning of the town hall through a charitable institution certified under the provision, the same would not be a donation as provided under Section 80G eligible for deduction as one made to a charitable institution?

2. Limited facts required to be stated are as follows.

The assessment for the assessment year 2004-05 was completed by Annexure A. The Assessee had through the Mammen Mappilai Charitable Trust expended an amount of Rs.1 crore for the purpose of air conditioning of Mammen Mappilai Hall which is owned by the Kottayam Municipality. The hall is in the name of the founder of the assessee and the assessee had taken up on itself the task of maintaining re-furnishing and modernising the said hall in memory and in honour of the founder. The assessee claimed in its return, deduction under Section 37 of the Income Tax Act, 1961 as an expense incurred wholly and exclusively for business purposes.

3. The Assessing Officer rejected the claim in view of the binding precedent in [2006] 284 ITR 69 (Ker) Malayala Monorama Co. Ltd. v. Commissioner of Income-Tax. The assessee then raised an alternate contention that, it is entitled to deduction under Section 80G as a donation granted to a charitable trust. The said claim was rejected on merits as also for reason that the returns did not indicate it having been given as a donation to the charitable trust. The appellate authority allowed the claim and remanded the matter for the limited purpose of verification of the receipt of donation and the certificate under Section 80 G issued to the trust. The Tribunal affirmed the same.

4. The learned Counsel for the revenue placed before us an order of the Hon'ble Supreme Court reported in [2006] 284 ITR 323(SC) Goetze (India) Ltd., v. Commissioner of Income-Tax wherein a claim made other than by way of a revised return was held to be not permissible. The assessee in opposition relied on a Division Bench decision of the High Court of Bombay in which a decision of the Hon'ble Supreme Court, reported in NTPC Limited v. Commissioner of Income-Tax[1998] 229 ITR 383 was relied on to allow an identical claim. The decision of High Court of Bombay is reported in 2012 (349) ITR 336 (Commissioner of Income-Tax v. Pruthvi Brokers and Shareholders Pvt. Ltd. wherein Goetze(India)Ltd. was noticed but distinguished. The learned Counsel appearing for the assessee also contended that when the claim is allowable under Section 80G and not includable in the taxable income as per the Income-Tax Act, there can be no deduction merely for the reason of the claim having not been made before the Assessing Officer. That would lead to the assessee being pinned down to the claim of deduction made under the return; applying the principles of estoppel; which has been deprecated by the Hon'ble Supreme Court in (1965) 56 ITR 67 (Commissioner of Income-Tax v. V.MR P. Firm Muar. AIR 1986 (SC) 2111 Commissioner of Income-Tax v. Mahalekshmi Sugur Mills Ltd., was also placed before us