N C SRINIVASAN Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) IN all these three writ petitions, the petitioner is common. The assessment years are 1975-76, 1976-77 and 1977-78. The petitioner is aggrieved by the common order of the second respondent, dated January 6, 1982, declining to grant the deduction claimed by the petitioner under section 80U(ii) of the INcome-tax Act, 1961, on the ground that the petitioner being a chartered accountant cannot be heard to say that he was not aware of the legal position under the statute, especially with regard to the deduction under section 80U of the Act The brief facts are following: The petitioner as mentioned above is a chartered accountant. Some time in January, 1974, he had a stroke on account of which he was partially disabled from attending to his regular work. IN the hope that he would be alright in due course, he did not claim the benefit of section 80U(ii) of the Act while submitting the income-tax returns. Unfortunately, the ailment became worse and he was obliged to retire from the partnership. Further, the petitioner was under the impression that as per the provision, only permanent disability will entitle an individual to invoke section 80U(ii) of the Act. Subsequently, he came to know of the clarification issued by the Central Board of Direct Taxes to the effect that the section can be invoked even for partial disability. Taking advantage of that, he initially moved the INcome-tax Officer for rectification under section 154 of the Act which was subsequently rejected on the ground that there was no error apparent on the face of the record to rectify the mistake.

(2.) THEREAFTER, he moved the Commissioner of Income-tax under section 264 of the Act. This petition was filed on May 22, 1981. That application was rejected by the Commissioner observing as follows"The petitioner is a practising chartered accountant and is a partner in more than six firms of chartered accountants. Therefore, it is difficult to hold that the petitioner was not aware of the legal position under the statute especially with regard to deduction under section 80U. The Central Board of Direct Taxes circular referred to above only lays down the procedural formalities to be observed in making a claim under section 80U. Therefore, it is difficult to hold that the petitioner was prevented by sufficient cause from filing the revision petition in time. The petitions are rejected as filed beyond limitation."Mr. S. V. Subramaniam, learned counsel for the petitioner, submitted that the reason given by the Commissioner that the petitioner being a chartered accountant cannot be heard to say that he was not aware of the legal position is not justifiable. According to learned counsel for the petitioner, as soon as the petitioner became aware of the position, within a year, the application was filed before the Income-tax Officer and there was no undue delay on the part of the petitioner. He also cited two decisions to the effect that because the particular individual was a lawyer or a chartered accountant, he cannot be taken as knowing the provisions or of the notifications issued by the Department and there is possibility of the practitioner missing the circular or the provision of law. In Concord of India Insurance Co. Ltd. v. Smt. Nirmala Devi, the Supreme Court held as follows"..... that the law is settled that mistake of counsel may in certain circumstances be taken into account in condoning the delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an under-hand way.