Decided on May 27,1982



S.K.Chander, - (1.) THIS appeal by the assessee is directed against the order of the AAC dated 1-2-1982, relating to the assessment year 1980-81. The issue involved in this appeal is whether, on the facts and in the circumstances of the case, the assessee is entitled to deduction under Section 80U(ii) of the Income-tax Act, 1961 ("the Act").
(2.) The assessee is an individual and has income from shares from the firm, Parkash Soap Factory, interest from bank and business as well as house rent as stated by the ITO in his impugned order, dated 30-6-1981. For this assessment year, the assessee filed the original return on 29-9-1980 declaring a total income of Rs. 20,470. This return was revised subsequently and, in this revised return, the assessee, inter alia, claimed relief under Section 80U(ii) of the Act. The assessee also filed a certificate from a medical practitioner as proof of permanent physical disability. The ITO examined this claim but came to the conclusion that "the assessee's case is not covered under this section for the simple reason that disease, not a permanent physical disability from which the assessee is suffering, had not the effect of reducing substantially his capacity to engage in a gainful employment or occupation". After making the above observation, the ITO gave the figures of income assessed for the three assessment years immediately preceding the assessment year under appeal to prove the point. The assessee went up in appeal. The AAC considered the submissions of the assessee but, taking into consideration Circular No. 246 [F. No. 178/3/1977-IT(A-II)], dated 20-9-1978 issued by the CBDT enumerating certain types of disabilities to which the section could apply, came to the conclusion that "pulmonary tuberculosis with bronchial asthma is not covered under this circular". He, therefore, held that the assessee was not suffering from any permanent physical disability and, as such, not entitled to relief under Section 80U(#). Hence, the present appeal.
(3.) THE parties have been heard. It is not in dispute that the assessee is suffering from pulmonary tuberculosis with bronchial asthma for the last 20 years. THE assessee had also filed a certificate from a registered medical practitioner, Dr. V.K. Gupta, M.B.B.S., Ex. HCNS, Ambala Cantt. This certificate, given by the doctor, certified that Shri Om Parkash s/o late L. Makhan Lal, partner of Parkash Soap Factory, Ambala Cantt., is suffering from pulmonary tuberculosis with bronchial asthma and was under his treatment for the last two years. THE doctor has further certified that the disease being of permanent physical disability, had substantially reduced Shri Om Parkash's capacity to engage in a gainful occupation. As stated earlier this certificate is dated 31-3-1981. On these facts, the claim of the assessee is to be considered for relief under Section 80U(ii).;

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