Binoy Kumar Morang and Smt. Moni Prava Payeng V. The Union of India and The Secretary to the Govt. of India, Department of Finance and The Chairman and The Chief Commissioner of Income Tax and The Commissioner of Income Tax TDS (NER) and The Income Tax Officer (TDS) and The Income Tax Officer and The Director of Fisheries and The Treasury Officer

WP(C)/1453/2018

AI Insights

The case involves two petitioners, members of the 'Mising Community', a recognized Scheduled Tribe in Assam, who challenged the deduction of Income Tax at source from their salaries by the Treasury Officer, Jonai. They claimed exemption under Section 10(26) of the Income Tax Act, 1961, which provides tax relief to Scheduled Tribes in specified areas. The respondents, including various government officials and departments, contested the applicability of this exemption to the petitioners, arguing that the Jonai belt was not included in the tribal areas specified under the relevant notifications. The court examined the historical context of the notifications and previous judgments, ultimately deciding in favor of the petitioners by recognizing their entitlement to the tax exemption.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 696109 (HC-ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH)
• Appeal Type: Others
• Pronouncement Date: 12-10-2020
• Assessment Year: misc
• Other Referred Cases: Hara Kanta Pegu and others Vs Union of India and Others, Pradip Kumar Taye and ORS. Vs Union of India and ORS.
• Laws Referred To: Income Tax Act, 1961, Constitution of India
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: S G I
• Assessee Lawyers: K SINGHA
• Keywords: Income Tax Act; Income tax exemption; Scheduled Tribe; Mising Community; Section 10(26)
• Section: 10(26)

Judgement Text

"Page No.# 1/10 GAHC010039052018 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/1453/2018 BINOY KUMAR MORANG AND ANR. D/O LT. LATIRAM MORANG R/ONO. 2 RIGBI P.O. RATANPUR DIST. DHEMAJI, ASSAM, PIN- 787060 2: SMTI. MONI PRAVA PAYENG Age: Occupation VERSUS THE UNION OF INDIA AND 7 ORS. REP. BY THE SECRETARY TO THE GOVT. OF INDIA, DEPARTMENT OF FINANCE, NEW DELHI- 110001. 2:THE CHAIRMAN Age: 0 Occupation : 3:THE CHIEF COMMISSIONER OF INCOME TAX Age: 0 Occupation : 4:THE COMMISSIONER OF INCOME TAX TDS (NER) Age: 0 Occupation : 5:THE INCOME TAX OFFICER (TDS) Age: 0 Occupation : Page No.# 2/10 6:THE INCOME TAX OFFICER Age: 0 Occupation : 7:THE DIRECTOR OF FISHERIES Age: 0 Occupation : 8:THE TREASURY OFFICER Age: 0 Occupation Advocate for the Petitioner : MR. K SINGHA Advocate for the Respondent : ASSTT.S.G.I. BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA JUDGMENT Date : 12-10-2020 1. Heard Mr. K. Singha, Advocate, learned counsel for the petitioners, Mr. S. Sarma, Advocate, learned Senior Standing counsel, Income Tax Department, Mr. B. Gogoi, Advocate for Respondent no.8, Mr. G. Pegu, Advocate for Respondent no.7. 2. This writ petition has been filed by the petitioners, who claim to belong to the ‘Mising Community’ of Assam, which is a recognized Scheduled Tribes Community. The petitioner no.1 is working as Junior Assistant in the Office of the Fishery Officer, Jonai under the Government of Assam, Department of Fisheries. The petitioner no.2 is working as L.D.A cum Typist and posted at Sub-Divisional Fishery Development Office, Jonai and is presently working in the said Office. Page No.# 3/10 3. The grievances of the petitioners relate to the deduction of Income Tax at source by the Treasury Officer, Jonai from the salaries payable to the petitioners. According to the petitioners since they are members of the recognized Scheduled Tribe of ‘Mising Community’, they are entitled to get the benefit of exemption from deduction of Income Tax at source as provided under Section 10 (26) of the Income Tax Act, 1961. 4. Under Section 10 of the Income Tax Act, in computing total income of any person, the income falling under various categories under the different Sub-sections of Section 10, shall be excluded from computation of total income. The relevant provision of Section 10(26), which reads as follows:- \"10. In computing the total income of a previous year of any person, any income falling within any of the following clauses shall not be included-... (26) in the case of a member of a scheduled tribe as defined in clause (25) of article 366 of the Constitution, residing in any area specified in Part I or Part II of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution or in the (State of Arunachal Pradesh, Manipur, Mizoram, Nagaland and Tripura) or in the areas covered by Notification No.TAD/R/35/50/109, dated the February 23, 1951, issued by the Governor of Assam under the proviso to sub-paragraph (3) of the said paragraph 20 (as it stood immediately before the commencement of the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971)) (or in the Ladakh region of the State of Jammu and Kashmir), any income which accrues or arises to him,- (a) from any source in the areas (or States aforesaid), Page No.# 4/10 or (b) by way of dividend or interest on securities;\" 5. In terms of the provisions of Section 10 (26) of the Income Tax Act, 1961 members of Scheduled Tribes as defined in clause (25) of the Articles of 366 of Constitution residing in any area specified in part 1 or Part. II of Table appended to Paragraph 20 of the 6 schedule of the Constitution of India or in the states of Arunachal Pradesh, Manipur, Mizoram, Nagaland and Tripura or in the areas covered by Notification No. TAD/R/35/50/109 dated 23.02.1951 issued by the Governor of Assam, the Income of such persons as mentioned above, which accrues or arises to such persons, will be exempt from payment of income tax on such accrual of income. 6. In support of their contentions, the petitioners rely on the Caste Certificates to contend that they belong to the ‘Scheduled Tribes’ recognized in the State of Assam. The petitioners further refer to the orders of the Governor dated 23.02.1951 vide Notification No. TAD/R/35/50/109. This is followed by another Notification by the Governor being Notification No. TAD/REV/73/50/43 dated 13.03.1951 whereby the areas in the plains of ‘Sadiya Frontier Tract’, Balipara Frontier Tract and Tirap Frontier Tract’ which were left out in the earlier Notification dated 23.02.1951 as areas not included in the Tribal areas, were included into the Tribal belt. 7. A reference has also been made by the petitioners to the Extract of the “Protected Belts and Blocks in Assam” Department of Revenue (settlement), Dispur, Government of Assam to show that Murkongselek Jonai Tribal belt is shown to be included as a protected belt in the Dhemaji District. The Notification No. TAD/REV/73/50/43 dated 13.03.1951 is also referred to in the said extract. 8. Upon a perusal of these documents referred to by the counsel for the petitioners, it is apparent that the Murkongselek, Jonai Tribal belt is the area, where the petitioners are residents of as members of the Protected Scheduled Tribe (Plains) of ‘Mising’ Community Page No.# 5/10 which is a recognized and protected Community in the State of Assam. Accordingly, they submit that they satisfy the 3 (three) conditions necessary to avail of the benefit under Section 10 (26) of the Income Tax Act, 1961. The 3 (three) conditions are as under— a) The assessee must be a member of Scheduled Tribes prescribed by the Constitution of India, b) The assessee must be residing in any specified area as referred in Section 10 (26) of the Income Tax Act, c) The income must have accrued or arisen from any source in the areas as specified therein. 9. The learned counsel of the petitioner accordingly submits that appropriate directions and orders be passed by this Court, directing the respondent /authorities to allow the benefit conferred under section 10 (26) of the Income Tax Act, 1961 in so far as the petitioners are concerned. The learned counsel for the petitioner also refers to similar orders passed by this court in the case of Hara Kanta Pegu and others Vs Union of India and Others reported in 2016 SCC OnLine Gau 521 (2017) 392 ITR 247. 10. Per Contra, the learned counsel for the respondent, Mr. Sarma disputes the claims of the petitioners and relies on the affidavit filed by the Department. According to Mr. Sarma, the Department Authorities will only consider the claims of persons who are covered under the Notification mentioned Under Section 10 (26) of Income Tax Act 1961. According to Mr. Sarma, the Notification which finds mention under Section 10 (26) of Income Tax Act 1961 is the Notification No. TAD/R/35/50/109 dated 23.02.1951 issued by the Governor of Assam under proviso to sub- paragraph (3) of Paragraph 20 of 6th schedule to the Constitution of India. According to Mr. Sarma, the claims made by the petitioners cannot be entertained in view of the fact that the Notification No. TAD/R/35/50/109 dated 23.02.1951 does not include the Jonai belt. According to Mr. Sarma, it is apparent from the Notification dated 23.02.1951 that the areas of Sadiya Frontier Tract had been excluded from the Tribal areas specified in part B of the Table appended to Paragraph 20. Page No.# 6/10 11. Upon hearing the learned counsels for the parties, and upon perusal of the case records, it is seen that the benefit of Section 10 (26) of Income Tax Act 1961 is to be given effect to in respect of members belonging to ‘Protected Scheduled Tribes recognized by the Government of India in respect of various States of Union. Although the Notification No. TAD/R/35/50/109 dated 23.02.1951 by Governor of Assam notifies areas which are not included in Tribal areas, but the subsequent Notification No. TAD/REV/73/50/43 dated 13.03.1951 also by the Governor of Assam includes the areas in the plains of Balipara Frontier Tract, Abor Hills and Mishimi Hills Districts (Sadiya Frontier Tract) and the Tirap Frontier Tract, which were earlier not included in Tribal areas, into Tribal areas. As such it can be said that the subsequent notification dated 13.03.1951 is in continuation to the earlier notification dated 23.02.1951. 12. The effect of the exemption granted under Section 10 (26) of Income Tax Act, 1961 as an issue came up before this court as well as the Apex Court on earlier occasions. The extent of the benefit conferred upon members of Scheduled Tribes and the import of Section 10 (26) of Income Tax Act, 1961 has been elaborately discussed and dealt with by a Full Bench of this court in the case of Pradip Kumar Taye and ORS. Vs Union of India and ORS., reported in 2010 (2) GLR 367. In the said Judgment, it is held that in the context of the Section 10 (26) of Income Tax Act, 1961, it is a special treatment under the scheme of the Constitution of India in the various aspects of the application of the Constitution of India, in so far as members of the Scheduled Tribe as concerned. In the said Judgment this court has held that “residing in the area specified” as mentioned under Section 10 (26) of Income Tax Act, 1961 cannot be given a narrow meaning to confer benefits only on the members of Scheduled Tribes, who fall within the scope of the said Section. The relevant paragraph of the Judgment is extracted herein below— “Examined thus, the crucial expression “residing in any area specified” occurring under section 10(26), in our view, cannot be given a narrow and restricted meaning to imply that the members of a Scheduled Tribe migrating from their place of origin, which happens to fall in one of the areas specified in the said sub- Page No.# 7/10 section, to another area although once again falling within the areas specified in the sub-section, would not get the benefit of the exemption under section 10(26). If a literal meaning is to be given to the expression “residing in any area specified”, in our view, section 10(26) is capable of producing a result that any member of a Scheduled Tribe irrespective of the fact whether such a Scheduled Tribe is a Scheduled Tribe, in relation to those territories specified in the said sub-section or not, is entitled to the bene fit of the said subsection. It is not the case of either the petitioners or the revenue that the Parliament, white enacting section 10(26) intended such result. Therefore, the expression “residing in any area specified” must be interpreted in the context of the said sub-section. The context of the sub-section is that it is a special provision with reference to the specified areas of the country, that is, the areas comprising North East and Jammu & Kashmir of the country, which received a special treatment under the scheme of the Constitution in the various aspects of the application of the Constitution. It may also be worthwhile remembering that even in the matter of reservation of seats either in the Lok Sabha or the various Legislative Assemblies, the Scheduled Tribes of the State of “Assam” are treated exclusively under article 330(3) and 332(1). Therefore, in our view, the expression “residing in any area specified”, occurring under section 10(26) is used by the Parliament synonymously with the expression “in relation to any area specified” under the said sub-section. In our view, the expression “residing in any area specified” is not meant to be restrictive of the benefit provided under the said sub- section in the case of members of the Scheduled Tribes, who, otherwise, fall within the scope of the said section, Page No.# 8/10 but migrating to one of the places specified in the said sub-section but only descriptive of the limited number of Scheduled Tribes, which are residents of the areas specified under section 10(26) of the Income-tax Act”. (Emphasis Supplied) 13. Viewed from that perspective, once a community is declared to be a Scheduled Tribe Community and recognized as such by the state in relation to which such benefit is conferred on the Community, then the benefit sought to be conferred by the Legislature under Section 10 (26) of Income Tax Act, 1961 cannot be taken away by the mere fact that subsequent Notifications leading to amendment and/or modification of the earlier Notification are not found mentioned in Section 10 (26) of Income Tax Act, 1961. If such an interpretation is permitted then the legislative intent to confer benefits under section 10 (26) of Income Tax Act, 1961 will be rendered otiose. It will lead to an absurd conclusion that only members of those recognized Schedule Tribes belonging to the areas mentioned in Notification No. TAD/R/35/50/109 dated 23.02.1951 will avail benefits under section 10 (26) of Income Tax Act, whereas members of such or in certain cases members belonging to the same scheduled/protected Tribes which are declared to be such by orders passed by the appropriate Government, will continue to be outside the purview of Section 10 (26) of Income Tax Act, 1961 notwithstanding that members of same Scheduled Tribes who are residents of the areas mentioned in the Notification dated 23.02.1951 continue to enjoy the benefits under Section 10 (26) of Income Tax Act, 1961. 14. Accordingly, the Notification No. TAD/REV/73/50/43 dated 13.03.1951 must be held to be in continuation to the Notification No. TAD/R/35/50/109 dated 23.02.1951. And consequently the benefits conferred under Section 10 (26) of Income Tax Act, 1961, members of Scheduled Tribes covered under notification dated 23.02.1951 must be held to be available to members of Scheduled Tribe who are residents of areas included in the Tribal areas by notification dated 13.03.1951. Page No.# 9/10 15. Accordingly, the submissions of learned counsel of the respondent that the benefits conferred under section 10 (26) of Income Tax Act, 1961 cannot be conferred on the petitioners in view of the non- reference of Notification No. TAD/REV/73/50/43 dated 13.03.1951 under section 10 (26) of Income Tax Act, 1961 cannot be accepted. The benefit of Section 10 (26) of Income Tax Act, 1961, is dependent on the recognition of a community as a Scheduled Tribe community and/or protected community with reference to the states in question in which persons claiming such benefits reside. 16. In view of the above discussions, it is held that mere non-reference of subsequent circulars in Section 10 (26) of Income Tax Act 1961 cannot be permitted to be taken as a ground to take away a benefit conferred under the Constitutional Scheme and which is otherwise available to the scheduled /protected tribes of the state as declared by the appropriate Government. I am also in respectful agreement to the directions rendered by Division Bench of this court in Writ petition no. 4089/2013 (Sri Hara Kanta Pegu and Others Vs Union of India and Others). Accordingly, it is directed that the jurisdictional Income Tax Officer shall examine the claims of the petitioners seeking exemptions from payment of Income Tax under section 10 (26) of Income Tax Act, 1961 by identifying the area in which they reside and the salary as income in the context of Notification dated 23.02.1951 read with 13.03.1951 and deciding issue of the exemption under Section 10 (26) of Income Tax Act, 1961 accordingly as per provision of law. 17. The petitioners are permitted to file individual representations before the jurisdictional authority and the jurisdictional authority upon issuance of proper Notice and upon giving an opportunity of the being heard, decide the matter and pass orders as per provisions of law on the claims made for exemption from payment of Income Tax. This entire exercise is directed to be completed within 90 (Ninety) days from the date of receipt of the certified copies of this order. Page No.# 10/10 18. The writ petition, is accordingly, allowed and disposed of in terms of above directions. 19. No order as to Cost. JUDGE Comparing Assistant "