Gujarat High Court
Snehlata Chandrakant vs M.S. Thanvi Or His Successor on 8 April, 1999
Author: A.R. Dave
Bench: A.R. Dave
JUDGMENT Rajesh Balia, J.
1. Rule. Service of rule is waived by the learned counsel for the respondent. Heard the learned counsels for the parties.
2. A short question is raised in this petition. The dispute relates to denial of benefit of s. 80U of the IT Act, 1961 ('the Act'), to the handicapped assessee, for the asst. yrs. 1991-92 to 1995-96 by the CIT, Gujarat II, Ahmedabad, vide his order dt. 15th December, 1998.
3. The facts necessary to be noticed are that for all these assessment years in question, the assessee did not claim benefit of handicapped assessee before the ITO and the assessments were allowed to be completed on that basis. Thereafter, on expiry of the period of limitation, applications were made in respect of each of the assessment years before the CIT, under s. 264 of the IT Act, with applications for condonation of delay to claim benefit of s. 80U, in respect of the assessment for the aforesaid assessment years. A certificate of Dr. Prabodh Desai dt. 11th January, 1997 was produced before the CIT stating that the assessee "is in his treatment for arthritis affecting both her knee joints for the last 15 years. She was operated in December, 1985 on her left knee. In spite of this, the condition of her knees has continued to worsen and from the year 1991, she has been disabled considerably. She also has flat feet and dilated talengiectases resulting in oedema of both her lower limbs." The certificate further states "I estimate that from the above-mentioned year 1991 her permanent physical disability has been 65 per cent in both her lower limbs." The said certificate shows Dr. Prabodh Desai as Consultant Orthopaedic Surgeon. The address was given as rooms & nursing home, near Nagri Hospital, Anandbaug, Ellisbridge, Ahmedabad.
4. The CIT noticed that Dr. Prabodh Desai, Consultant Surgeon on 11th January, 1997, has stated that the assessee was suffering from physical disability in both her lower limbs to the extent of 65 per cent since 1991. It is not understood how the extent of disability can be judged as 65 per cent existing in 1991, in the year 1997, thus, doubting the efficacy of the certificate for the periods in question. He further stated that the certificate under s. 80U should be from a doctor working in a Government hospital. The letter-head of Dr. Prabodh Desai does not indicate that he is working in a Government hospital. He referred to the salary certificate from Gujarat Cancer Research Institute showing a payment of Rs. 6,000 to Dr. Prabodh Desai as honorarium for working as a doctor in the Government hospital. The CIT further observed that doctor is attached as an honorary surgeon and has been paid honorarium for the whole year. Had he been working in Government hospital, he would have been having some designation of the post held by him. An honorary doctor cannot be said to be working with a Government hospital.
5. Thus, considering the two reasons along with the fact that the assessee has not laid any claim before the AO the CIT did not find the order of the AO to be erroneous which warranted the revision of the order. The petitioner challenges the said order. It may be noticed that for the subsequent years 1996-97 and 1997-98, the petitioner has been given the benefit of s. 80U on the very same certificate.
6. Two-fold contentions have been raised before us. Firstly, that the CIT could not have sat over the certificate issued by the concerned doctor who is an expert in his field, if the certificate was otherwise the one on the basis of which the benefit could be claimed under s. 80U. Secondly, it has been urged that rejection of the certificate as not of a doctor working in the Government hospital is, on the face of it, incorrect inasmuch as, on his own finding, the doctor was attached as honorary surgeon with the Gujarat Cancer Research Institute. It is not the case that the institute was not a Government hospital within the meaning of the term as defined in the Expln. to s. 80DD which is applicable to the provisions of s. 80U and also as per the Expln. attached to it.
7. The law requires only that the certificate should be from a physician, a surgeon or an oculist or a psychiatrist, as the case may be, working in a Government hospital. The statute does not inhibit a further limitation in what capacity such physician, surgeon, oculist or psychiatrist should be working in that Government hospital. Reading an inhibition that he should only be working as a doctor regularly employed by the Government, was not warranted.
8. The learned counsel for the respondent urged that the certificate being of 1996, it has been given effect from the future years but as it could not relate to the earlier years, the CIT has rightly not thought it fit to act on the certificate, in exercise of his revisional jurisdiction, particularly when no such claim was made before the ITO. The order of the ITO as such could not have been held to be erroneous which would warrant exercise of revisional jurisdiction under s. 264.
9. Having given our careful consideration, we are not impressed by the contentions raised in defence. Having found a good cause and condoned delay, the fact that claim has been made at a late stage, by itself, would not be a ground for rejecting the same.
10. Since the insertion of the provision, the statute has provided the conditions on the fulfilment of which an assessee is entitled to the benefit of deduction under s. 80U. It also provided the mode of proof to establish physical disability of the assessee. Initially the requirement was only that physical disability must be certified by a registered medical practitioner, only for the first year of assessment. By the Finance (No. 2) Act of 1991, s. 80U was substituted w.e.f. 1st April, 1992 which required that physical disability is to be certified by a physician, surgeon, oculist or a psychiatrist, as the case may be, working in a Government hospital, and which has the effect of considerably reducing the capacity for normal work or engaging in a gainful employment or occupation. The AO has not been made further arbiter of correctness of certificate, once the condition is fulfilled. Under s. 80U, as it stood prior to its present form before 1st April, 1992, that is to say, before the commencement of the asst. yr. 1992-93, the requirement of laying a claim to benefit under s. 80U was that such individual produces before the AO, in respect of the first assessment year for which deduction is claimed under this section in the case covered by clause (ii) of sub-s. (1), namely, where the assessee's claim is founded on suffering from a permanent physical disability (other than blindness), a certificate as to permanent physical disability from a registered medical practitioner. The requirement of such registered medical practitioner working at the Government hospital or any other set-up was not envisaged. The requirement under the amended provision w.e.f. 1st April, 1992 is that the certificate should be by a physician, a surgeon, an oculist or a psychiatrist working in a Government hospital. The term used in the present provision is not that the doctor certifying permanent physical disability should be employed as a civil surgeon in a Government hospital on a regular salary or on regular basis. The requirement is only of working in a Government hospital which is of much wider import than being employed in a Government hospital on regular basis. A surgeon rendering honorary service at a Government hospital is as much a surgeon working on regular basis in a Government hospital under regular rules of employment.
12. In the present case, it is apparent that during the course of assessment for the asst. yr. 1996-97, claim to benefit under s. 80U had been laid for the first time w.e.f. the asst. yr. 1991-92. So far as the asst. yrs. 1996-97 and 1997-98 are concerned, the Revenue has found that conditions for grant of benefit under s. 80U, are satisfied on the anvil of the very same certificate of Dr. Prabodh Desai. Thus, for the purpose of the asst. yr. 1996-97, his capacity as a surgeon working in a Government hospital has been accepted and also the genuineness of certificate emanating from him.
13. We, therefore, find that the CIT apparently erred in rejecting the certificate as not of the surgeon working in a Government hospital merely because Dr. Desai was working as an honorary surgeon and not as a paid employee. As noticed above, it is not a case that the Gujarat Cancer Research Institute does not fall within the definition of a Government hospital within the meaning of the Expln. to s. 80DD, read with the Explanation attached to s. 80U.
14. Having prescribed the mode of laying claim for benefit under s. 80U, that is to say, by producing a certificate of a registered medical practitioner until the asst. yr. 1991-92 and thereafter, requiring production of certificate by a physician, a surgeon, an oculist or a psychiatrist, the provision has not empowered the AO with authority to adjudicate upon the correctness of this certificate. Obviously, the ITO not being supposed to be an expert in the field of medical sciences, the matter has been left to be certified by the experts in the field and after the amendment, the field of choosing such experts has also been limited to those who are working in Government hospitals. Even otherwise, ordinarily, the Courts do not trench upon the field of expert opinion which depends on specialised study and special knowledge of the subject. This is not to say that the AO or the Courts do not inquire into the genuineness of the certificate. If the certificate is found to be spurious, it can certainly be rejected, but if the certificate is found to be genuine and coming from the source required under the statute, the correctness of which cannot be made the subject-matter of further scrutiny by the AO or the Courts, with reference to general probabilities. We find in this case that the genuineness of certificate is not in doubt inasmuch as on the very same certificate, undoubtedly, the AO has allowed deduction under the provisions of s. 80U for subsequent years. Thus, genuineness, correctness and proper source of certificate under the Act have been accepted. It cannot be said that the doctor who satisfied the text of working in a Government hospital on the date of issue of certificate, cannot be considered to be so for one period and not for another period. Law has not prescribed that the certificate of permanent physical disability be obtained within particular time of the period for which deduction under s. 80U is claimed. It can be produced at any stage of the proceedings. Assuming for the sake of argument that it be so for the earlier years, we notice that for the first year of claim 1991-92, requirement under s. 80U as it stood then was not that certificate be of a surgeon working at a Government hospital but a certificate from any registered medical practitioner was needed to be produced and it enured for all subsequent years. If that be so, the certificate of Dr. Prabodh Desai, for the asst. yr. 1991-92 fulfils that condition and it being otherwise genuine certificate, the AO could not have rejected it on the ground that it does not come from prescribed source and genuineness of certificate not being in doubt, he could not have sat over the judgment of its correctness. Thus, viewed from any point of view, the order of the CIT suffers from the error apparent on the face of the record and cannot be sustained.
15. This petition is, accordingly, allowed. The impugned order is quashed and the CIT is directed to decide the question on the grant of benefit under s. 80U afresh in accordance with law.
16. Rule is made absolute with no order as to costs.