CHANDRAVADAN M GANDHI Vs. FOURTEENTH INCOME TAX OFFICER
LAWS(IT)-1989-4-5
INCOME TAX APPELLATE TRIBUNAL
Decided on April 05,1989

Appellant
VERSUS
Respondents

JUDGEMENT

R.N. Singhal, Accountant Member - (1.)THIS appeal by the assessee is directed against refusal of relief Under Section 80U which is available by way of deduction from total income on account of total blindness or a permanent physical disability which has the effect of reducing substantially the assessee's capacity to engage in a gainful employment or occupation.
(2.)The assessee suffered from chronic recurrent acute Bronchial Asthma and in support thereof produced a certificate from a Doctor. The ITO rejected the assessee's claim saying that it was not covered by the provisions of Section 80U. The AAC confirmed the ITO's finding and decision.
Before us, it is pointed out that in Board's circular dated 2-1-1984 it was clearly envisaged that there could be physical handicaps, such as deafness, dumbness and mental retardation which would qualify for exemption Under Section 80U and the list of ailments given in Board's earlier circular dated 20-9-1978 should not be regarded as exhaustive but should be regarded as illustrative. Tribunal's four decisions are cited in support of the contention that relief Under Section 80U should be allowed in this case.

(3.)WE have carefully considered the assessee's submissions. First of all, it is to be noted that the Doctor's certificate dated 14-4-1983 says that the assessee has been under his treatment since 1970. WE are dealing with the case for assessment year 1981-82. So, the Doctor's certificate also talks of this ailment for about 10 years prior to the period of relevant previous year. Against this background, we can consider the Tribunal's decisions cited by the assessee's learned counsel. They are as follows: -
(i) In the case of Shri Khemraj Jain [IT Appeal Nos. 162 and 163 (Hyd.) of 1985] for the assessment year 1982-83 and 1983-84.

In that case, the assessee was suffering from Asthma since last 25 years and on account of this long duration the Tribunal came to the conclusion that the disease had led to permanent physical disability and had reduced substantially the asseessee's capacity to engage himself in gainful employment. Obviously, this case is distinguishable, firstly, because the assessee's history is of hardly 10 years against that of 25 years in the cited case and, secondly, because in a coastal town like Bombay humidity otherwise also causes breathing problems in most of the cases, while at a place like Hyderabad it would not be so, meaning thereby that a case of Asthma of 25 years in Hyderabad would be really an acute case as compared to a case of 10 years in Bombay.

(ii) Indore Bench decision in Anand Prakash Saksena v. ITO [1983] 3 ITD 151. In that case, the assessee was an LAS officer and had become almost deaf. On account of that deficiency, he could not attend usefully some meetings etc. On page 154 of the report, the Tribunal took note of the position that the assessee had been in employment since the year 1951 and if he were not suffering from the said permanent physical disability, he could have been promoted to the post of Chief Secretary of the State or might have been appointed to a higher post in the Central Government. On this basis, he was held as entitled to relief Under Section 80U. In the instant case, our assessee is neither in employment nor has he been denied any promotion. The nature of physical disability is also different because serious impairment of hearing is not at all comparable with Bronchial Asthma. This case also does not help the assessee. (Hi) Bombay Bench 'E' decision in Jyoti L. Gandhi v. First ITO [1983] 3 ITD 295.

That was a case of mental disability and hence distinguishable clearly from the assessee's case.

(iv) Chandigarh Bench decision in Om Parkash v. ITO [f982] 1ITD 1060.

That was the case of Pulmonary Tuberculosis with Bronchial Asthma. Obviously, Pulmonary Tuberculosis is a permanent disability which mere Bronchial Asthma is not. This case is also distinguishable.



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