9911796707
TMI Blog1991 (12) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... in 1978 Shri Ajit started getting complaint of Angina Pectoris and so he was under treatment of Dr. Sudhir Naik of Hyderabad and Dr. A.S. Godbole of Bombay, both well known cardiologists. In May 1981 Shri Ajit was facing lot of difficulties in performing his stunt required for his roles in Hindi Feature Films. He, therefore, underwent a thorough inspection again under Dr. Sudhir Naik, who suggested immediate operation for permanent cure and to safevouch successful performance of the stunts necessary for the roles of villain in films. For this purpose they advised him to proceed to USA for this surgery without further delay. He as well Dr. A.S. Godbole advised that the surgery should be performed by Dr. Cooely in Stulkes Hospital, Houston Texas, USA, where Dr. Sudhir Naik himself was attached years before. In fact Dr. Sudhir Naik made arrangements for admission of Shri Ajit in this hospital. Under this expert medical advice Shri Ajit proceeded to Houston Texas, USA to undergo the said operation. He was accompanied, as an attendant, by his son Shri Zahid Ali Khan as per recommendation of the said Dr. Naik. Foreign exchange of 18,550 US Dollars was allowed by the Exchange Controller ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1945] 13 ITR (Suppl.) 21 (CA), the ITO disallowed the assessee's claim for deduction of Rs. 1,29,190 in the following manner :----- " 5. In the present case the operation was more essential to enable the assessee to live as a healthy man and it was only when this was achieved that he could indulge in his profession. Therefore, the expenditure incurred on medical expenses relating to open heart surgery at USA is not wholly and exclusively for his profession. In fact the expenses are to be considered as of personal expenses and thus the assessee's claim regarding deduction of expenses cannot be accepted and accordingly the claim of the assessee is hereby rejected. " 6. In appeal before the CIT (Appeals), the assessee once again pressed for the deduction of Rs. 1,29,190. However, the CIT (Appeals) preferred to uphold the action of the ITO as under :---- " 4. On perusal of the orders of the ITO and consideration of the submissions made by the A.R., I am of the opinion that the conclusion arrived at by the ITO after detailed consideration of the facts of the case and the submissions, as well as case laws cited in the assessment orders cannot be said to be unjustified. I agree wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have been dried up. Relying on the decision of the Hon'ble Supreme Court, in the case of CIT v. Malayalam Plantations Ltd. [1964] 53 ITR 140, he submitted that since the expression, 'for the purpose of business' is wider in scope than the expression 'for the purpose of earning profits', the assessee's claim for deduction of the entire amount of Rs. 1,29,190 should be accepted. Relying on the decision of the Hon'ble Supreme Court, in the cases of Sassoon J. David Co. (P.) Ltd. v. CIT [1979] 118 ITR 261, CIT v. Delhi Safe Deposit Co. Ltd. [1982] 133 ITR 756 and Indian Aluminium Co. Ltd. v. CIT [1972] 84 ITR 735, he submitted that since the expenditure incurred by the assessee was in respect of his profit earning apparatus, the same should be treated as expenditure incurred wholly and exclusively for the purpose of the profession and should, therefore, be allowed under section 37(1) of the Act. He also relied on the decision of the Hon'ble Bombay High Court, in the case of Mehboob Productions (P.) Ltd. v. CIT [1977] 106 ITR 758, wherein the Hon'ble High Court was pleased to accept the assessee's claim for deduction of the amount spent for the medical treatment of its director, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion to the decision of the Hon'ble Bombay High Court, in the case of Mehboob Productions (P.) Ltd. be submitted that the facts and circumstances obtaining in the instant case are clearly distinguishable from the facts and circumstances obtaining in that case. In the instant case, the assessee had incurred expenditure in his personal capacity, while in the reported case, the expenditure was incurred by the company on its director, who was the spirit behind the existence of Mehboob Productions Pvt. Ltd. He also pointed out that in the reported case, the expenditure was incurred by an assessee, on a person, whose services were indispensable for its very existence. As regards the assessee's claim for partial allowance of the expenditure incurred by him, the learned representative for the department submitted that the same should not be accepted, as one cannot visualise two hearts, one used for the purpose of the profession and the other used for personal purposes. In this connection, he gave an illustration of a telephone or a motor car, wherein partial allowance is granted to an assessee, if a telephone or a motor car is used for business as well as personal purposes. This is so, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilm 'Mother India' produced by the assessee was nominated by the Academy. The Hon'ble High Court held that the expenditure so incurred (reimbursed) by the assessee was wholly and exclusively for the purpose of the business carried on by the assessee. However, in the instant case, like any other individual, the assessee incurred expenditure on getting operated for his heart ailment. In other words, the expenditure incurred by the assessee was purely of personal nature, which does not qualify for deduction under section 37(1) of the Act. In view of the language used within the parentheses of that section, we can appreciate the hardship of an assessee, engaged in some profession. However, it is not within our domain to stretch the language of the section, with a view to help such an assessee. We entirely agree with the submissions made on behalf of the revenue that there is an in built limit in the language used in section 37(1) of the Act, as held by the Hon'ble Supreme Court, in the case of Madhav Prasad Jatia. In that case, the Hon'ble Supreme Court held that even though the language used "for the purpose of business" in section 10(2)(xv) of the Income-tax Act, 1922 [corresponding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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