Op/24343/1999 Of B.indiramma v. The Income Tax Officer, Ward 2, Quilon

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 OP.No. 24343 of 1999(W) --------------------------------- PETITIONER(S): ------------------------ B.INDIRAMMA, LEGAL HEIR OFLATE SRI.S.P.CHANDRASEKHARAN NAIR,SHANMUGHAVILASOM, KALANJOOR,PATHANAMTHITTA DISTRICT. BY ADV. MR.KMV.PANDALAI RESPONDENT(S): ------------------------ 1.THE INCOME TAX OFFICER,WARD 2, QUILON.WARD 2, QUILON. 2.THE COMMISSIONER OF INCOME TAX,TRIVANDRUM.TRIVANDRUM. BY MR.JOSE JOSEPH, SC, COUNSEL GOVT. OF INDIA MR.P.K.R.MENON, SENIOR ADVOCATE MR.GEORGE K. GEORGE, SC FOR IT THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.40833/1999 IN OP. NO.24343/1999 21.05.2009 DISMISSED SD/- P.R.RAMACHANDRA MENON, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ASSESSMENT ORDER DT. 31.3.94 PASSED BY THE IST RESPONDENTFOR 92-93. P2:- COPY OF THE NOTICE DT. 28.5.97 ISSUED BY THE IST RESPONDENT. P3:- COPY OF THE NOTICE DT. 28.5.97 ISSUED BY THE IST RESPONDENT. P4:- COPY OF THE REVISION PETITION DT. 1.4.98 FILED BEFORE THE 2NDRESPONDENT. P4(a):- COPY OF THE MEDICAL CERTIFICATE DT. 10.3.1998 ISSUED BY THE DISTRICTHOSPITAL , KOLLAM. P5:- COPY OF THE CLARIFICATORY NOTE DT. 15.6.98. P6:- COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DT. 28.12.98. TRUE COPY TSS P.A. TO JUDGE P.R. RAMACHANDRA MENON J. (C.R)~~~~~~~~~~~~~~~~~~~~~~~ O.P. No. 24343 of 1999 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 21[st] day of May, 2009 JUDGMENT The petitioner has approached this Court challenging Ext.P6order passed by the second respondent, whereby the revision petitionfiled by him has been rejected, upholding Ext.P3 order passed by theIst respondent, substantially varying and modifying Ext.P1 order passedearlier, wrongly invoking the power under section 154 of the IncomeTax Act for rectifying the mistake apparent on the face of the record. 2. With regard to the sequence of events, it is to be noted that thepetitioner is a physically handicapped person with substantial extent ofdisability and was enjoying the benefit of deduction as provided undersection 80 U of the Income Tax Act (Act in short). It is the case of thepetitioner that assessment with respect to the year 1992-93 wasfinalized by the first respondent as per Ext P1 order and the liabilityfixed on the petitioner was satisfied by him. Subsequently, the Istrespondent issued Ext.P2 notice stating that the matter required to bere-examined, stating that the deduction under Section 80U alreadyallowed in the case of the petitioner was liable to be withdrawn,particularly since the certificate produced by the petitioner did not show that he was having permanent disability of more than 50%, which iscited as a mandatory requirement by virtue of the relevant ruleamended with effect from 01.04.1992. that he was having permanent disability of more than 50%, which iscited as a mandatory requirement by virtue of the relevant ruleamended with effect from 01.04.1992. 3. Immediately on receipt of Ext P2 notice, the petitionerpreferred a petition objecting the same, despite which, the firstrespondent passed Ext.P3 order denying the benefit of deduction to thepetitioner, for the reason that the petitioner did not have the requisiteextent of disability of 50% so as to make him eligible to avail the benefitunder Sec.80U of the Act, which in turn was subjected to challenge byfiling Ext.P4 revision before the second respondent. Along with therevision petition, the petitioner had also produced Ext P4(a) DisabilityCertificate, showing that his permanent disability was assessed at '55%'by the Medical Board of the District Hospital, Kollam. However, thesecond respondent did not choose to accept the said certificate andpassed Ext.P6 order confirming Ext.P3 passed by the Ist respondent,observing that the petitioner was not entitled to have the benefitprovided under Sec.80U, which is sought to be interfered with, in thepresent writ petition. 4. The learned counsel for the petitioner, referring to the relevantrule position, submits that the prescription of the minimum extent ofpermanent disability at '50%' was brought into effect only from 01.04.1992 on amending the relevant rules. It is stated that, earlier,there was no such stipulation and the petitioner was required to satisfythe mandate under Section 80U, as it stood then. For the purpose ofconvnience of reference, the relevant rule i.e, Rule 11D, after theamendment brought into effect from 01.04.1992, is extracted below: "11D, Permanent physical disabilities, etc for the purposes of deduction section 80 U - For the purposes of section 80 U - (i) permanent physical disability shall be regarded as permanent physical disability, it it falls in any one of thecategories specified below, namely;categories specified below, namely; (a) permanent physical disability of more than 50 per centin one limb; orin 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; or (d) permanent and total loss of voice (ii) mental retardation shall be regarded as a mentalretardation if intelligence quotient is less than 50 on a testwith a mean of 100 and a standard deviation of 15 such asthe Wechsle scale (iii) blindness shall be regarded as a permanent physicaldisability, if it is incurable and falls in any one of thecategories specified below xxxxxxxxxxx Section 80 U of the Act is reads as under : 80U Deduction in case of a person with disability (1) In computing the total income of an individual, being aresident who, at any time during the previous year, iscertified by the medical authority to be a person withdisability, there shall be allowed a deduction of a sum offifty thousand rupees: Provided that where such individual is a person withsevere disability, the provisions of this sub-section shallhave effect as if for the words “fifty thousand rupees”, thewords “seventy-five thousand rupees” had beensubstituted. (2) Every individual claiming a deduction under thissection shall furnish a copy of the certificate issued by themedical authority in the form and manner, as may beprescribed, along with the return of income under section139, in respect of the assessment year for which thededuction is claimed: (1) In computing the total income of an individual, being aresident who, at any time during the previous year, iscertified by the medical authority to be a person withdisability, there shall be allowed a deduction of a sum offifty thousand rupees: Provided that where such individual is a person withsevere disability, the provisions of this sub-section shallhave effect as if for the words “fifty thousand rupees”, thewords “seventy-five thousand rupees” had beensubstituted. (2) Every individual claiming a deduction under thissection shall furnish a copy of the certificate issued by themedical authority in the form and manner, as may beprescribed, along with the return of income under section139, in respect of the assessment year for which thededuction is claimed: Provided that where the condition of disability requiresreassessment of its extent after a period stipulated in theaforesaid certificate, no deduction under this sectionshall be allowed for any assessment year, relating to anyprevious year beginning after the expiry of the previousyear during which the aforesaid certificate of disabilityhad expired, unless a new certificate is obtained from themedical authority in the form and manner, as may beprescribed, and a copy thereof is furnished along with the return of income under section 5. The learned counsel for the petitioner, placing reliance on the'proviso' asserts that the case of the petitioner being squarely coveredby the said proviso was never required to produce any further certificateshowing permanent disability as more than 50 %, particularly since noother stipulation was there. The mistake happened only because of thefact that the petitioner, though was not required to produce anysubsequent certificate and the certificate already produced by him withrespect to the immediate previous year was very much liable to beacted upon, unfortunately he produced a fresh certificate, which wasconsidered and analysed by the departmental authorities to arrive at afinding that, since the certificate produced by the petitioner did not showpermanent disability of more than 50 %, the benefit of the deduction asprovided under Section 80 U would not be available to him. 6. The learned standing counsel appearing for the departmentalauthorities submits that, after amendment of the Rule w.e.f. 1.4.1992, itwas mandatory for the petitioner to substantiate the fact that he washaving more than 50 % disability. The learned counsel submits that ifthe certificate already produced by the persons concerned even before1.4.92, stipulated that the permanent disability was of more than 50 %,the same could be acted upon and that it was not necessary for such 6. The learned standing counsel appearing for the departmentalauthorities submits that, after amendment of the Rule w.e.f. 1.4.1992, itwas mandatory for the petitioner to substantiate the fact that he washaving more than 50 % disability. The learned counsel submits that ifthe certificate already produced by the persons concerned even before1.4.92, stipulated that the permanent disability was of more than 50 %,the same could be acted upon and that it was not necessary for such persons to produce any fresh certificate. This Court finds it very difficultto accept the above proposition, particularly in view of the fact that sucha situation is not discernible from the terminology used under Section80 (U). The certificate to be produced by the persons concernedearlier, did not require to satisfy the percentage of disability in anymanner. On the other hand, it is only stipulated that the disability oughtto have been of such magnitude having the effect of 'reducingconsiderably' the power of an individual for normal work orengagement, for enabling the person concerned to avail such adeduction. When the requirement of the statute was only to suchextent, there was absolutely no necessity to show the extent orpercentage of disability in the certificates issued earlier. If the certificateissued by the concerned authority showed the disability of the personconcerned as having considerably affected the capacity of the person todo normal work, it was very much liable to be acted upon by thedepartmental authority for providing the benefit of deduction. Suchinstances are specified, even after amendment, by virtue of the provisoto the Section, which has already been extracted above. No otherinterpretation is possible, for the plain reason that, it cannot be takenthat the Law making authorities were unaware of the provision as itexisted earlier. That apart, the petitioner has also got a case that he was actually having the permanent disability of '55 %' so as to havecome within the purview of amended requirement, as evident fromExt.P4(a). Certificate issued by the District Medical Board, Kollam,which however has been quite conveniently ignored by thedepartmental authorities. 7. In the above facts and circumstances, the impugned orders(Exts. P3 and P6) passed by the authorities are set aside. It is declaredthat the petitioner is entitled to get the benefit of deduction.Consequential orders shall be passed accordingly, as expeditiously aspossible. The Writ Petition is allowed. No cost. P. R. RAMACHANDRA MENON, JUDGE kmd