TMI Blog1998 (11) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... 80U of the Act ?" The assessee is an advocate and had claimed deduction under section 80U of the Income-tax Act, 1961, on the ground that he is suffering from coronary heart disease, which amounts to permanent disability and has substantially affected his capacity to engage himself gainfully. To that effect a certificate from a registered medical practitioner that the assessee is suffering from permanent physical disability was also produced as required under the proviso to section 80U as it stood at the relevant point of time, For the assessment years 1974-75 to 1976-77, the claim of the assessee was allowed by the Income-tax Officer. Later on though assessments were sought to be reopened under section 147(b) but the same were cancelled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edical evidence against the fact of decreased income. However, on totality of circumstances, it concluded that the capacity for work of a person with such a heart disease would be substantially reduced. On these findings, the assessee was held entitled to relief under section 80U. In the first instance it has been urged by learned counsel for the Revenue that a man suffering from coronary heart disease cannot be considered to be suffering from permanent physical disability in view of the circulars of the Central Board of Direct Taxes, referred to by the learned Appellate Assistant Commissioner in his order, which is of September 20, 1979. Though learned counsel candidly stated that the rules specifying permanent physical disability envisa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erverse or are vitiated because the same are founded on irrelevant considerations or partly relevant and partly irrelevant consideration or have been arrived at by ignoring relevant material on record or are based on no material, Unless for any of such reason which takes away the binding nature of the fact arrived at by the final fact-finding Tribunal such finding does not give rise to question of law. The Tribunal after evaluating the material before it, namely, the expert medical reports about the nature of disease and its effect on the physical capacity of the person suffering from it and growth in annual income returned by the assessee has come to the conclusion that seemingly the balance of evidence is tilted in favour of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suffering has resulted in reducing his capacity to gainful employment. In such circumstances, in the context of the provision with which we are concerned, the substantial reduction in capacity to engage in gainful employment can have only relevance to its relation to the extent it has affected the potential capacity of a disabled person which otherwise he could have exploited to his advantage. It is not a case of quantifying or measuring the effect of disability on the actual earning. But its effect on what he could have earned without disability, or what opportunity he could have availed of in the absence of such disability, There is no limit prescribed in the statute that a person having income beyond a particular level is not entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act cannot be disallowed for, had he not suffered from a permanent physical disability, he could have earned more." That is the approach which was approved by the court with which we respectfully agree. We may make it clear that it does not mean that earning is not a relevant consideration. It certainly is relevant consideration. But this cannot be the sole consideration for deciding the issue. As the Tribunal after taking into consideration all the facts has reached a finding about reduction in capacity in our opinion, it is a question of appreciating and evaluating evidence and does not give rise to a question of law. As a result of the aforesaid discussion, the question referred to us is answered in the affirmative, in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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