JUDGEMENT
Anoop Sharma, Judicial Member -
(1.)IN this appeal by the assessee against the order of the Appellate Asstt. Commissioner, Bombay, dated 10-4-1985 for the assessment year 1982-83, the only issue which arises for consideration is whether a person suffering from heart disease is eligible to a deduction of Rs. 10,000 Under Section 80-U of the Act.
(2.)The assessee, an individual in this case aged 68 years, was suffering from heart disease. Initially, a total income of Rs. 41,225 was declared. However, subsequently, this income was revised to Rs. 31,255 after availing of the deduction of Rs. 10,000 Under Section 80-U. The case of the assessee was that since he was suffering from Ischaemic heart condition which reduced his earning capacity, he was entitled to the deduction Under Section 80-U. The Income-tax Officer, however, concluded that such a disease could not be termed as a disability or handicap which reduced the earning capacity of the assessee. After examining the returns of income for subsequent years on merits, the ITO concluded that the earning capacity had not diminished, and in view of the Board's circular dated 29-9-1978, the assessee was not entitled to the deduction Under Section 80-U. The AAC, on appeal, after considering the decision of the Tribunal of Ahmedabad Bench as well as Chandigarh Bench of the Tribunal, confirmed the view of the ITO and further held that the disease with which the assessee was suffering could not restrict him to be engaged in gainful employment and that it did not constitute an actual physical disability preventing him from actually earning income.
Before us, great reliance was placed by the learned counsel for the assessee on a decision of Ahmedabad Bench of the Tribunal given in I.T.A. No. 248 (Ahd.)/81 dated June 1982, copy of which was provided to us. It was argued that in this case also the assessee, who suffered from coronary heart disease, was held to be eligible for the deduction provided in Section 80-U. It was, therefore, pleaded that in the present case similar deduction should be allowed.
(3.)WE have gone through the order of the Tribunal. WE are in respectful agreement with the reasoning given therein. However, the conclusion arrived at in that case was on the distinguishable facts of that case. Firstly, that was the case of an advocate who could not because of the ailment change over to any other business or profession. Secondly, the medical certificate furnished therein stated that he had become a cardiac cripple and had undergone a surgical operation, i.e., coronary bypass surgery. It was in those circumstances, taking a practical view, that the Bench, having satisfied itself on the facts and in the circumstances of that case, came to a conclusion that on account of this illness the assessee's earning capacity stood reduced. Moreover, Rule 11D, though it had come into effect with effect from 1-4-1985, was not considered by the Hon'ble Bench. However, in the present case, it is seen that the assessee derived Income on account of being a partner in various firms. His source of income is share income. From the records, it is not clear whether a medical certificate was filed or only an oral assertion was made regarding his illness. In any case, Rule 11D has come with effect from 1-4-1985 which is of a clarificatory nature and is as follows:
11D.A permanent physical disability shall be regarded as a permanent physical disability for the purposes of Clause (ii) of Sub-section (1) of Section 80U if it falls in any one of the categories specified below, namely: -
(a) permanent physical disability for more than 50 per cent in one limb; or
(b) permanent physical disability of more than 60 per cent in two or more limbs; or
(c) permanent deafness with hearing impairment of 71 decibels and above;
(d) permanent and total loss of voice.
It is accordingly seen that the intention of the legislature to give relief Under Section 80-U was only to those persons who suffer from a permanent physical disability of the one described in the Rule. In the modern tensionful way of life, it is not too uncommon for persons living in metropolitan cities to suffer from acute mental tension resulting in heart disease like the one in the present case. Such kind of a disease, in our opinion, cannot be termed as a permanent physical disability as occurring in Section 80-U. As regards the other decisions of the Tribunal relied upon by the learned counsel for the assessee, the same are distinguishable on facts where ailment or illness was not on account of heart. WE are, therefore, of the opinion that the authorities below were justified in rejecting the claim of the assessee for the deduction Under Section 80-U of the Act.