ORDER
R. P. GARG, A.M. :
This is an appeal by assessee against the order of the Dy. CIT(A) for asst. yr. 1988-89 rejecting the claim of the assessee under s. 80U of the IT Act, 1961.
2. The assessee is a physically handicapped person and while claiming the deduction under s. 80U of the Act, filed a certificate from an Orthopaedic Surgeon before the ITO. On the basis of the certificate, the ITO noticed that the nature of disability was stated to be post-polio paralysis and the extent was stated to be post-polio paralysis and the extent was stated to be 60%. This was the certificate dt. 29th December, 1983 given by Dr. A. C. Reddy, Civil Surgeon, Orthopedics, Government General Hospital, Guntur. Another certificate dt. 4th December, 1986 from Dr. V. Bhaskara Rao, Orthopaedic Surgeon, Government General Hospital, Guntur, was filed which shows that the assessee had an attack of poliomyelitis in his childhood affecting the left lower limb and he had got paralysis of entire left lower limb with loss of power of the left hip, knee and ankle joints. According to the ITO, both certificates nowhere certified that the assessee had been suffering from a permanent physical disability conforming to r. 11D(a) of the IT Rules, 1962. According to him, it was only partial disability and not a total disability and that too occurred at the age of five. The assessee got himself educated and after completing the necessary education in the year 1966, he became a lecturer in VSR & NVR College, Tenali, in the year 1966. This, according to him, showed that the partial physical disability did not have the effect of reducing substantially the assessees capacity to engage in a gainful employment or occupation. The Dy. CIT(A), though agreed with the assessee that the assessee had been suffering from permanent physical disability, upheld the disallowance by stating that the permanent physical disability was not such which had the effect of reducing substantially his capacity to engage in a gainful employment. He observed that the assessee had been struck with this disability since childhood but this had not prevented him from acquiring the benefits of higher education and becoming ultimately a Lecturer earning salary as per the pay scales prescribed.
3. The learned counsel of the assessee, relying upon the decision of the Tribunal in the case of T. Raja Rama Mohana Rao vs. ITO, (1989) 28 ITD 534 (Hyd), R. Kedarnath vs. ITO (1991) 38 ITD 574 (Mad), Dr. Aroonbhai B. Vyasa vs. ITO (1992) 42 TTJ 87 (Ahd), and the decision of the Allahabad High Court in the case of Sardar Harpreet Singh vs. CIT (1991) 187 ITR 679 (All), submitted that when the assessee is suffering from more than 50% disability, it was an in built condition that it had the effect of substantially reducing his capacity to engage in gainful employment. Had he not been suffering from the disability, he would have employed himself in a more gainful employment.
4. The learned Departmental Representative, on the other hand, supporting the order of the Dy. CIT(A), submitted that the mere fact that the assessee has been in gainful employment is sufficient to take the case of the assessee out of the provisions of s. 80U. According to him, no interference is called for in the orders of the Departmental authorities.
5. I have heard the parties and considered the rival submissions. Sec. 80U entitles an assessee to claim a deduction if he is either totally blind of suffers from permanent disability which has the effect of reducing substantially his capacity to engage in a gainful employment or occupation. As held by their Lordships of the Allahabad High Court in the case of Sardar Harpreet Singh (supra), what is to be looked into by the authorities is as to whether the assessee suffers from a permanent physical disability which has the effect of reducing substantially his capacity to engage in a gainful employment or occupation and not that the assessee should be unemployed or should not be doing anything. Merely because the assessee is earning income from some business (in that case), deduction under s. 80U cannot be disallowed for, had he not suffered from a permanent physical disability, he could have earned more. In that case, like in the case before me, the assessee had produced a medical certificate which showed that he suffered from a permanent physical disability and the disallowance was made on the ground that the assessee was engaged in the conduct of the business of a company and earning income. In that context, their Lordships held that merely because the assessee was earning income from some business, deduction under s. 80U cannot be disallowed for, had he not suffered from a permanent physical disability, he could have earned more. In my opinion, this decision squarely applies in the present case as well. This view also gets force from the decisions of the Tribunal referred to above.
6. A limb, lower or upper, is an essential part of the human body. Loss of a limb undoubtedly affects the capacity of a person the capacity not only for moving about but also for achieving ones goals in various walks of life. In Income-tax language, it affects and/or reduces the capacity of an assessee to be gainfully employed. The mere fact that the assessee in the present case is a lecturer in a college and is earning such income as other lecturers having both the limbs are earning does not means that the loss of his one limb did not effect or reduce his capacity to be gainfully employed. One should not close ones enquiry by just knowing what a person is but should extend the horizon of ones vision to find out what he could have been had he not lost him limb. A lot of hurdles, obstacles and non-cooperative attitude and behaviors of the society come in his way affecting his career building. Imagine a situation, when a person with loss of one limb can reach up to the stage of being a lecturer, where he would have landed himself had he possessed all the limbs. He could have reached heights beyond imagination. In fact, there is no limb one can place on the human potential, on what he can achieve in his life. To limit it by saying that he had been lecturer and earning income is not warranted.
7. Sec. 80U of the IT Act grants a deduction. It should, therefore, receive a liberal construction, a construction to advance the object and not to restrict it by imposing conditions. Sec. 80U reads as under :
“80U. (1) In computing the total income of an individual, being a resident, who, as at the end of the previous year, –
(i) … ….
(ii) is subject to or suffers from a permanent physical disability (other than blindness) being a permanent physical disability specified in the rules made in this behalf by the Board, and which has the effect of reducing substantially his capacity to engage in a gainful employment or occupation, or
(iii) … …
there shall be allowed a deduction of a sum of fifteen thousand rupees :”
No doubt, as stated by the Dy. CIT(A), the word “and” cannot be made redundant and one should satisfy both the conditions to claim the deduction, but that should not be conditioned by a belief that it was not substantial. What substantially reduces the capacity of a person to engage in a gainful employment should not be judged by the fact, as their Lordships of the Allahabad High Court held, that he was earning income. It should be judged by the extent of the impairment of the limb. The assessee is certified to be permanently disabled by loss of 60% of his one limb. This, in my opinion, can be termed as “substantial”. This is what has been held by the Tribunal in the decisions referred to above. It may also be mentioned that the Board has issued a Circular No. 375 [F.No. 178/17/83-IT(A-I)] allowing deduction under s. 80U in certain circumstances, wherein also no further condition is prescribed to determine that the said disability or impairment of a limb should further be proved to be affecting substantially the capacity of a person to be gainfully employed. When a disability is of a particular extent, it is but nature that it affecting substantially the capacity of a person to be gainfully employed.
8. In these circumstances, I am of the opinion that the Dy. CIT(A) was not justified in upholding the disallowance of the claim of the assessee and I direct the Assessing Officer to allow the claim of the assessee under s. 80U.
9. In the result, the appeal is allowed.