9911796707
TMI Blog1991 (6) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 80U of the Income-tax Act, 1961 as claimed by the assessee. He was of the opinion that deduction under section 80-U was not allowable for those assessment years " since the conditions laid down in section 80-U were not fulfilled ". Accordingly notice under section 263 dated 17-1-1989 was issued to the assessee, proposing to revise, modify or cancel the assessment orders for making fresh assessment in accordance with law. Before the Commissioner the assessee himself was present. 3. According to the Commissioner, it was explained to the assessee that his earnings had increased over the years from Rs. 31,950 in the assessment year 1982-83 to Rs. 55,390 in the assessment year 1988-89 and further that he was the General Manager of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f demand for the assessment year 1985-86 dated 6-11-1985 showing total income assessed at Rs. 8,730 and copy of the Tribunal's order dated 28-7-1989 for the assessment years 1986-87 to 1988-89 in the case of V. N. Gopal in [IT Appeal Nos. 1226 to 1228 (Mad.) of 1989]. The arguments of the assessee's counsel were to the following effect. In the course of assessment proceedings for the assessment year 1985-86 the assessee had filed a certificate dated 5-11-1985 from Dr. S.P. Prabhakar, Madras. In the said certificate the Doctor certified that the assessee had got a total permanent disability of left-hand of more than 50% as a result of major crush injury. Earlier, for the assessment year 1982-83 the assessee had filed another medical certific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interests of the revenue due to the following reasons : 2. While completing the assessment, the Income-tax Officer has allowed a deductionof Rs. 10,000 each for the assessment years 1986-87 and 1987-88 and Rs. 15,000 for the assessment year 1988-89 under section 80U as claimed by you. Since the conditions laid down under section. 80U are not fulfilled, deduction under section 80U is not allowable for all these assessment years. 3. I, therefore, propose to revise, modify or cancel the order of the ITO for the assessment years 1987-88 to 1988-89 under the powers vested in me under section 263 of the Income-tax Act, 1961 for making fresh assessments in accordance with law. 4. You are hereby given an opportunity of being heard at my office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt physical disability of left hand of more than 50% the same had not affected in any way his capacity to engage himself in a gainful employment and that his earnings had increased over the years. He also stated that the assessee had been elevated by his employer to the rank of General Manager from the post of Dy. General Manager earlier. Thus it would be seen that the non-mentioning in the show-cause notice dated 17-1-1989 by the Commissioner for invoking the provisions of section 263 of the ground used by him in his order under section 263 entails his order to be invalid as principles of natural justice were not observed. In similar circumstances, the Calcutta High Court in the case of CIT v. General Trade Agencies [1973] Tax LR 1383 held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O or the Commissioner concerned to decide. It is not a requirement under section 80U. The subjective satisfaction of the ITO or the Commissioner concerned is totally irrelevant. If the subjective satisfaction of the concerned officer was intended by the legislature, it would have been so provided as in section 271(1) wherein the words used are " if the ITO.... in the course of any proceedings under the Act, is satisfied that any person ......". The underlying intention of the certificate from the R.M.P. under section 80U is that the Doctor should satisfy himself hat because of the permanent physical disability, the assessee's capacity to engage in gainful employment or occupation has been substantially reduced. Further, the substantial redu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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