TaxTMI 
TaxTMI 
2018 (8) TMI 198
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.... 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 purp....
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....t there was no claim made in the return, as to the amounts being allowable as a donation nor any evidence produced to prove such donation. The first appellate authority looked at the photocopy of the receipts issued by the Trust and its order of approval under Section 80G and directed verification of the originals on satisfaction of which the claim was directed to be allowed. The Tribunal affirmed the limited remand made in first appeal. The Revenue is in appeal on the compelling ground that without a revision of return as permitted by the statute there can be no such consideration. We notice that Goetze (India) Ltd and Pruthvi Brokers are distinguishable on facts and on law. Goetze was a case in which the return was filed and later a specific claim of deduction, not raised in the return, was sought to be urged before the Assessing Officer by way of a letter. The claim was disallowed on the ground that there was no provision under the Income-Tax Act, to amend the return other than by revision of return. In Pruthvi Brokers the claim of deduction was made in the return but the figures were relatable to another year; which was sought to be altered to the amounts relevant for the subje....
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....ss of the documents produced in support of the claim. 8. Additional Commissioner of Income-Tax v. Gurjargravures [1978] 111 ITR 1 also was relied to find that "The above observations do not rule out a case for raising an additional ground before the Appellate Assistant Commissioner if the ground so raised could not have been raised at that particular stage when the return was filed or when the assessment order was made, or that the ground became available on account of change of circumstances or law. There may be several factors justifying raising of such new plea in appeal, and each case has to be considered on its own facts. If the Appellate Assistant Commissioner is satisfied he would be acting within his jurisdiction in considering the question so raised in all its aspects. Of course, while permitting the assessee to raise an additional ground, the Appellate Assistant Commissioner should exercise his discretion in accordance with law and reason. He must be satisfied that the ground raised was bona fide and that the same could not have been raised earlier for good reasons. The satisfaction of the Appellate Assistant Commissioner depends upon the facts and circumstances of eac....
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....n filed before 31.03.2006. We agree with the learned Standing Counsel that the assessee had ample time to file a revised return especially when the claim as raised in the return for an earlier assessment year was found to be not allowable by the jurisdictional High Court. However, we are not convinced that the said fact alone would dis-entitle the assessee from making the claim at the appellate stage. 11. We are fortified in taking such a view by the decision of the Hon'ble Supreme Court in (1965) 56 ITR 67. Therein the question was with respect to the assessee having acted in accordance with the instructions of the Central Board of Revenue which took into account the devaluation of currency in Malaya due to occupation of Japan. A scheme was framed for the benefit of Indian Nationals doing business in Malaya; who were hit by the reintroduction of Malayan Currency after the British re-occupied Malaya, resulting in drastic devaluation of the Japanese currency, which together with the Malayan currency was in vogue at the time of Japanese occupation. The losses suffered by such assessees during the assessment year 1942-43 and 1946-47 were allowed to be set off against the profit o....
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....r income is not taxable under the Income Tax Act, it cannot be taxed on the basis of estoppel or any other equitable doctrine. Equity is out of place in tax law; a particular income is either exigible to tax under the taxing statute or it is not. If it is not, the Income Tax Officer has no power to impose tax on the said income." 12. Hence for the mere reason that the assessee had not claimed the provision under which the deduction was allowable in the return cannot preclude the assessee from claiming it either before the first appellate authority or the Tribunal. Merely for the reason that the assessee had made a wrong claim in the return under Section 37 and as an alternate plea, relied on another provision, for deduction, it would not disable an alternate claim under Section 80 G. In any event the assessee would not have been disabled from making such a claim before the appellate authority as held by a three Judge Bench of the Hon'ble Supreme Court in NTPC. We agree with the decision of the Bombay High Court, which followed NTPC. 13. Mahalekshmi Sugar Mills, according to us, on the quite distinct facts as also the law applied, has no application and has been quoted out of....
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.... claimed business expenditure under Section 37; which, as held by this Court in a similar matter, was not allowable. The assesee then claimed before the A.O that there was yet another provision under the Act, under which the deduction could be allowed. This was submitted before the Assessing Authority, who declined it on merits for reason of no evidence produced. Before the First Appellate Authority also the claim was made, which stood allowed; which decision was affirmed by the Tribunal. 15. In the facts and circumstances of this case we hence answer the first question of law framed in favour of the assessee and against the Revenue that there could have been a deduction considered under Section 80G, by the Assessing Officer without a revised return being filed since the claim for deduction was made; but under a wrong provision. The necessary facts for a claim to be set up was available in the return. 16. We then notice that the first appellate authority has considered the claim under Section 80G prima facie, and found it to be tenable. The appellate authority had directed consideration of the claim by the Assessing Officer which is permissible, as has been laid down by the Hon&#....