KRISHNANKUMAR V. THE UNION OF INDIA.

WP(C)/23181/2016

AI Insights

The case involves two petitioners, Krishnankumar and Akber Ali, who sought directions for their passports to be marked with 'Emigration Check Not Required' (ECNR) status, claiming entitlement as Income Tax payees. The respondents, including the Union of India and various passport authorities, conceded that Income Tax payees are generally entitled to ECNR status but contended that the petitioners had not provided sufficient proof of actual tax payment, only token payments. The court examined the purpose of ECNR status, which is to exempt individuals who are capable of self-protection abroad from the need for government emigration clearance, typically aimed at protecting less literate or semi-literate workers from exploitation. The court concluded that the petitioners, being skilled workers who paid only nominal taxes, did not meet the criteria for ECNR status.

• Counselvise Citation: [2016] 140 COUNSELVISE.COM (IT) 678623 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 25-08-2016
• Assessment Year: misc
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: N NAGRESH
• Assessee Lawyers: ANCHAL VIJAYAN
• Keywords: Emigration Check Not Required; ECNR; Income Tax payees; Passport status

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR THURSDAY, THE 25TH DAY OF AUGUST 2016/3RD BHADRA, 1938 WP(C).No. 23181 of 2016 (W) ---------------------------- PETITIONER(S): ------------- 1. KRISHNANKUMAR, S/O. THANKAVELU, PULIKKAPARAMBIL, PULIKKAPARAMBIL HOUSE, CHERPULASSERY P.O., PALAKKAD DISTRICT. 2. AKBER ALI, S/O. MOHAMMADALI VALAYANKATTIL, VALAYANKATTIL HOUSE, KARALMANNA P.O., CHERPALCHERRY, PALAKKAD DISTRICT. BY ADV. SRI.ANCHAL C.VIJAYAN RESPONDENT(S): -------------- 1. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, EXTERNAL AFFAIRS, NEW DELHI-21. 2. THE REGIONAL PASSPORT OFFICER, REGIONAL PASSPORT OFFICE, ERNAKULAM-682 036. 3. THE PASSPORT OFFICER, PASSPORT SEVA KENDRA, 2ND FLOOR, ROWDHA TOWERS, POOTHOLE ROAD, THRISSUR-680 004. BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: msv/ WP(C).No. 23181 of 2016 (W) --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ----------------------- P1 COPY OF THE RELEVANT PAGES OF THE PASSPORT NO.N 0376021 OF THE 1ST PETITIONER. P2 COPY OF THE PAN CARD NO.DDAPP 8060 F OF THE 1ST PETITIONER. P3 COPY OF THE RELEVANT PAGES OF THE PASSPORT NO.K.9739497 OF THE 2ND PETITIONER. P4 COPY OF THE PAN CARD NO.BABPV 7706 C OF THE 2ND PETITIONER. P5 COPY OF THE APPOINTMENT RECEIPT DATED 5.7.2016 WITH APPOINTMENT ID 100008404978216 ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER. P6 COPY OF THE ITR V ACKNOWLEDGMENT FOR THE ASSESSMENT YEAR 2014-2015 OF THE 1ST PETITIONER. P7 COPY OF THE ITR V ACKNOWLEDGMENT FOR THE ASSESSMENT YEAR 2015-2016 OF THE 1ST PETITIONER. P8 COPY OF THE ITR V ACKNOWLEDGMENT FOR THE ASSESSMENT YEAR 2016-2017 OF THE 1ST PETITIONER. P9 COPY OF THE APPOINTMENT ID 100008359158416 ISSUED BY THE 3RD RESPONDENT TO THE 2ND PETITIONER. P10 COPY OF THE ITR V ACKNOWLEDGMENT FOR THE ASSESSMENT YEAR 2014-2015 OF THE 2ND PETITIONER. P11 COPY OF THE ITR V ACKNOWLEDGMENT FOR THE ASSESSMENT YEAR 2015-2016 OF THE 2ND PETITIONER. P12 COPY OF THE ITR V ACKNOWLEDGMENT FOR THE ASSESSMENT YEAR 2016-2017 OF THE 2ND PETITIONER. P13 COPY OF THE RECEIPT ISSUED FROM STATE BANK OF INDIA, CALICUT TO THE 1ST PETITIONER FOR REMITTANCE OF RS.504/- TOWARDS INCOME TAX FOR THE ASSESSMENT YEAR 2014-2015. P14 COPY OF THE RECEIPT ISSUED FROM STATE BANK OF INDIA, CALICUT TO THE 1ST PETITIONER FOR REMITTANCE OF RS.684/- TOWARDS INCOME TAX FOR THE ASSESSMENT YEAR 2015-2016. P15 COPY OF THE RECEIPT ISSUED FROM STATE BANK OF INDIA, CALICUT TO THE 1ST PETITIONER FOR REMITTANCE OF RS.1133/- TOWARDS INCOME TAX FOR THE ASSESSMENT YEAR 2016-2017. msv/ -2- -2- WP(C).No. 23181 of 2016 (W) --------------------------- P16 COPY OF THE PASSPORT OF SHIHABUDEEN NO.N1848602 ISSUED ON 31.8.2015. P17 COPY OF THE APPLICATION SUBMITTED BY SHIHABUDEEN ON 20.7.2016. P18 COPY OF THE ACKNOWLEDGMENT LETTER FOR RE-ISSUE OF NORMAL PASSPORT TO SHIHABUDEEN. P19 COPY OF THE NEW PASSPORT OF SHIHABUDEEN NO.P1437987 ISSUED ON 21.7.2016. P20 COPY OF THE PASSPORT OF MULLAKOYA NO.N3031452. P21 COPY OF THE ACKNOWLEDGMENT LETTER ISSUED TO MULLAKOYA FROM PASSPORT SEVA KENDRA, MALAPPURAM DTD.1.8.2016. P22 COPY OF THE PASSPORT OF KUNHIKOYA NO.N4315783. P23 COPY OF ACKNOWLEDGMENT LETTER DTD.1.8.2016 ISSUED FROM THE PASSPORT SEVA KENDRA, MALAPPURAM TO KUNHIKOYA. P24 COPY OF THE FORM 26 AS IN RESPECT OF REMITTANCE OF INCOME TAX BY THE 1ST PETITIONER FOR THE ASSESSMENT YEAR 2015-2016. P25 COPY OF THE FORM 26 AS IN RESPECT OF REMITTANCE OF INCOME TAX BY THE 1ST PETITIONER FOR THE ASSESSMENT YEAR 2016-2017. P26 COPY OF THE FORM 26 AS IN RESPECT OF REMITTANCE OF INCOME TAX BY THE 2ND PETITIONER FOR THE ASSESSMENT YEAR 2014-2015. P27 COPY OF THE FORM 26 AS IN RESPECT OF REMITTANCE OF INCOME TAX BY THE 2ND PETITIONER FOR THE ASSESSMENT YEAR 2015-2016. P28 COPY OF THE FORM 26 AS IN RESPECT OF REMITTANCE OF INCOME TAX BY THE 2ND PETITIONER FOR THE ASSESSMENT YEAR 2016-2017. RESPONDENT(S)' EXHIBITS: ------------------------ NIL //TRUE COPY// P.S.TO JUDGE Msv/ P.B. SURESH KUMAR, J. ---------------------------------------------- W.P.(C) No.23181 of 2016 ---------------------------------------------- Dated this the 25th day of August, 2016 JUDGMENT The petitioners are claiming directions to the respondents to confer them “Emigration Check Not Required” (ECNR) status in their passports. The case of the petitioners is that Income Tax payees are entitled to ECNR status and though the petitioners are Income Tax payees, they are not assigned the said status. 2. A statement has been filed in this matter on behalf of the respondents on 06.08.2016. In the statement, it is conceded that Income Tax payees are entitled to ECNR status. However, the contention raised is that though the petitioners have produced copies of the Income Tax return filed by them, they have not produced any proof of payment of Income Tax. W.P.(C) No. 23181 of 2016 -2- Later, an additional statement has been filed on behalf of the respondents on 17.8.2016. In the additional statement, it is contended that the basis for exempting Income Tax payees from emigration clearance is that those who have established source of income in India and pay income tax on the same, do not require Government protection abroad, meant for illiterate/semi literate workers from exploitation by labour recruitment agents, foreign employers etc. It is also contended in the additional statement that the Central Government has issued instructions to the authorities under the Passports Act to reject applications for ECNR status based on token Income Tax payments made for the said purpose. 3. Heard the learned counsel for the petitioners as also the learned Assistant Solicitor General. 4. It is beyond dispute that emigration clearance is meant for the protection of illiterate/semi literate workers abroad who are unable to protect themselves from exploitation of all kinds. The list of the categories of persons who are W.P.(C) No. 23181 of 2016 -3- exempted from emigration clearance as furnished in the first statement filed on behalf of the respondents indicates that only those who are able to protect themselves from exploitation abroad are exempted from emigration clearance. It is thus evident that though Income Tax payees are exempted from emigration clearance, the intention is obvious that such persons must be persons who are able to protect themselves from exploitation abroad. 5. Coming to the facts of the present case, it is evident that both the petitioners have not passed SSLC. They are skilled workers. The first petitioner is an Aluminium Fabricator and the second petitioner is a Driver. Both of them have paid only nominal Income Tax for three years disclosing income just above the taxable limit. The returns for all the three years have been filed by them together on a given day. It is thus evident that they have paid Income Tax solely for the purpose of claiming the ECNR status. Since ECNR status is intended for people who may not require the protection of the W.P.(C) No. 23181 of 2016 -4- State abroad, going by the background of the petitioners, I do not think that the petitioners are entitled to ECNR status. If the argument of the petitioners is accepted, so long as there is no restriction in filing income tax return, anybody can get ECNR status by filing income tax return disclosing an income just above the taxable limit and thereby defeat the process of granting emigration clearance. In the circumstances, I do not find any merit in the writ petition and the same is accordingly dismissed. Sd/- P.B. SURESH KUMAR JUDGE bpr "