KANWAR NARAIN GUPTA v. INCOME TAX OFFICER
[Citation -1985-LL-1030-6]

Citation 1985-LL-1030-6
Appellant Name KANWAR NARAIN GUPTA
Respondent Name INCOME TAX OFFICER
Court ITAT
Relevant Act Income-tax
Date of Order 30/10/1985
Assessment Year 1983-84
Judgment View Judgment
Keyword Tags physical disability • medical certificate • gainful employment • erroneous in law • legal profession
Bot Summary: 1983-84, the disease has advanced rendering the assessee to a permanent physical disability, in view of the fact that the assessee has lost powers of speaking as well as of writing. Counsel for the assessee contends that the assessee is entitled to s. 80U relief. Counsel for the assessee has stated at the bar that he is meeting the assessee, who is an Advocate, to have instructions from him and has found that the assessee has lost power of writing as well as of speaking. Departmental Representative contends that for s. 80U deduction, it is for the assessee to prove that the assessee is suffering from permanent physical disability, which the assessee has not proved. Counsel for the assessee, who is meeting the assessee to have instructions has stated at the bar that the assessee is not able to perform his duties for legal profession, in view on the fact that the assessee has lost powers of speaking, writing and moving, of account of parkinsonsms and is suffering from a permanent physical disability, which statement is to be relied upon. No doubt, Shri Sud contends that the medical certificate does not show t h a t the assessee is suffering from a permanent physical disability and the assessee is not entitled to s. 80U relief and the statement of the ld. The advocate, who is meeting the assessee, is aware of his condition and is stating at the bar that the assessee on account of parkinsonism has suffered from a permanent physical disability in the previous year relevant for the assessment year under consideration.


assessee has preferred this appeal against order dt. 22nd Feb., 1984 of Shri S. K. Kundra, AAC of IT, Bhatinda Range, Bhatinda, who dismissed appeal against order dt. 30th Dec., 1983 of Shri A. S. Saini, ITO, D-ward, Bhatinda. relevant facts, in brief, are that assessee is Individual, who is Advocate. previous year, relevant for asst. yr. 1983-84, ended on 31st March, 1983. assessee filed return of income and made claims, inter alia, for deduction under s. 80U of IT Act, 1961, hereinafter to be referred to as Act, for sum of Rs. 10,000 on ground that due to illness in August, 1982 professional income had considerably reduced for loss of speech, rigidity of joint and Tremors. Reliance was placed on medical certificate dt. 17th June, 1983 of Dr. Ashok Kumar Sharma, D.O.M.S., M.B.B.S., Janta Eye Hospital, Bhatinda filed alongwith return. ITO relying on Board s Circular No. 246 dt. 20th Sept., 1978, which was shown to counsel of assessee, observed that disease/illness was not identical with disease noted in above Circular. Therefore, deduction claimed under s. 80-U was not acceptable. Accordingly, he rejected claim of assessee referred to above. In appeal assessee failed before AAC, though it was pleaded before him that assessee was suffering from parkinsonism along with Hypertension, that disease has caused slurring in speech and had effected joint and both hands had developed tremors. It was further pealded that assessee is entitled to relief under Circular No. 375 dt. 2nd Jan., 1984, as well as on Reader s Digest Great Encyclopaedic Dictionary wherein parkinsonism was described. For rejecting pleas of assessee and dismissing appeal, AAC held that in his opinion Parkinsonism or Shaking Palsy in its advance form is not permanent physical disability of type envisaged for purposes of deduction under s. 80U of Act. assessee being further aggrieved has preferred this appeal. Shri R. K. Aggarwal ld. counsel for assessee, contends that assessee has been suffering from parkinsonism disease, since year 1979. Therefore, in previous year, relevant for asst. yr. 1983-84, disease has advanced rendering assessee to permanent physical disability, in view of fact that assessee has lost powers of speaking as well as of writing. He further contends that in view of Board s Circular No. 375 dt. 2nd Jan., 1984 categories of physical handicaps such as, deafness, dumbness and mental retardation are entitled to deduction under s. 80U of Act. Therefore, assessee is entitled to s. 80U deduction under this Board s Circular on facts and circumstances of case. Relying on paper book and extracts of Text book of practice of Medicine page 6 and Circular No. 375 as well as paper book from pages 3 & 4 Parkinson s Disease, Booklet for patients and their families by R. B. Godwin-Austen, page 1 of Supplementary paper Book, which show that Department has accepted income of assessee in asst. yrs. 1984-85 and 1985-86 at nil and extract from Oxford Textbook of Medicine pages 5 to 15, ld. counsel for assessee contends that assessee is entitled to s. 80U relief. ld. counsel for assessee has stated at bar that he is meeting assessee, who is Advocate, to have instructions from him and has found that assessee has lost power of writing as well as of speaking. His condition is such that he is not fit for legal profession particularly on account of his physical condition due to parkinsonism and, therefore, assessee is entitled to deduction under s. 80U of Act. On other hand, Shri Sud, ld. Departmental Representative contends that for s. 80U deduction, it is for assessee to prove that assessee is suffering from permanent physical disability, which assessee has not proved. He further contends that medical certificate furnished by assessee does hot prove it and, therefore, assessee is not entitled to s. 80U relief. Reliance is placed on orders of authorities below. I have heard rival submissions and gone through record before me. I am of opinion that appeal of assessee is to succeed. reasons are: that s. 80U(ii) of Act says that if individual suffers from permanent physical disability (other then blindness) being permanent physical disability specified in rules made in this behalf by Board, and which has effect of reducing substantially has capacity to engage in gainful employment or occupation, he will be allowed deduction of sum of ten thousand rupees. In this case, there is medical certificate, which shows that assessee has been suffering from Parkinsonism along with Hypertension, which has caused slurring in speech and had effected joints which had developed rigidity, while both hands had developed tremors. There is no doubt that Dr. Ashok Kumar Sharma has not added words in aforesaid certificate that assessee is having permanent physical disability on account of perkinsonism. It is also on record that assessee has been suffering from this disease since 1979. It is on record that assessee is in advance stage of this disease. legal profession wants lawyer (advocate) to show his performance before Courts or judicial functionaries, which is there if advocate in having power of speaking. It is also noted that advocate should have power of writing though it is not so important as that of power of speaking. disease admittedly takes away power of speaking of its victim. Therefore, in case of advocate, parkinsonism is disease, which has effect of reducing substantially his capacity to engage in gainful occupation. It is further proved from supplementary paper book page 1, which shows that assessee (advocate) was having income in year 1977-78 about Rs. 17,000 but in years 1984-85 and 1985-86 it is nil , which proves that disease has effect of reducing substantially his capacity to engage in gainful occupation. Further Board s Circular No. 375 shows that it has improved upon Circular No. 246 favourably for assessee because vide it deafness, dumbness and mental retardation has been taken in category of physical handicaps entitled under s. 80U relief. Therefore, parkinsonism in its advance form is worst than deafness and dumbness as it takes away power of speaking and writing as well as moving on account of rigidity in joints. These three factors cause substantially in capacity to engage oneself in occupation or earning income from profession. Besides, ld. counsel for assessee, who is meeting assessee to have instructions has stated at bar that assessee is not able to perform his duties for legal profession, in view on fact that assessee has lost powers of speaking, writing and moving, of account of parkinsonsms and is suffering from permanent physical disability, which statement is to be relied upon. No doubt, Shri Sud contends that medical certificate does not show t h t assessee is suffering from permanent physical disability and, therefore, assessee is not entitled to s. 80U relief and statement of ld. counsel for assessee at bar cannot take place of medical certificate. He further contends that statement at bar of advocate should not take preference to medical certificate of Doctor, who is expert. I am not inclined to accept contention of Shri Sud in view of fact that Doctor is mainly expert and, therefore, its certificate is nothing else than opinion of expert in writing. advocate, who is meeting assessee, is aware of his condition and is stating at bar that assessee on account of parkinsonism has suffered from permanent physical disability in previous year relevant for assessment year under consideration. Therefore, it is his statement at bar, which is substantive place if evidence, as statement of advocate at bar is always taken as such by Courts and judicial functionaries on account of prevalent convention in system of justice in India. Further Doctor has not mentioned in certificate that assessee is not suffering from permanent physical disability, rather contents of certificate show that it is there. Besides, Board s Circular No. 375 does not show that permanent physical disability is basis for relief under s. 80U of Act, because Circular No. 375 has allowed relief under s. 80U even to individual, who are suffering from deafness, dumbness and mental retardation. Mental retardation and deafness are curable and there are instruments, which removes defnness and individual, who is suffering from deafness can hear by use of hearing-aid. Therefore, if victim is suffering from parkinsonism, who has lost power of speech and is belonging to legal profession, then such victim (advocate) is entitled to s. 80U relief due to effect of reducing substantially capacity of assessee (advocate) to engage in gainful occupation. In view of above discussion and reasons thereto, I hold that assessee is entitled to relief under s. 80U on totality of facts and circumstances as mentioned above. Therefore, orders of authorities below are erroneous in law and facts and as such are set side. In result, appeal is allowed. *** KANWAR NARAIN GUPTA v. INCOME TAX OFFICER
Report Error