TMI Blog2007 (2) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... petitions were filed claiming exemption from payment of income-tax on the ground that the writ petitioners are members of the Schedules Tribes as defined in clause (25) of article 366 of the Constitution residing in the area specified either in Part I or Part II of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution. Precisely, the dispute raised by the writ petitioners centres around the scope and ambit of section 10(26) of the Income-tax Act, 1961, vis-a-vis the constitutional provisions. Before the question is addressed, we may recapitulate the factual background of each case in brief. Writ Petition (C) No. 200(SH)/2001 has been filed by the NEEPCO Employees Welfare Association, a registered association, repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any area specified in Part I or Part II of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution will not be eligible for exemption under section 10(26) of the Act even though he may presently reside and derive income from any of the States or areas mentioned therein. The petitioner in W. P. (C) No. 340(SH)/2002 is also a member of the Scheduled Tribe recognised in the State of Assam. She is also aggrieved by the impugned notice dated July 23, 2002, issued under section 142 of the Income-tax Act directing her to file the return bf her income. Her claim is that she is a member of the Kachari community in the State of Assam which is recognised as a Scheduled Tribe under the provisions of the Constitution. The pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judge, by the judgment under appeal, dismissed the writ petitions precisely on the following observation: "37. Having regard to the underlying legislative intendment in incorporating the exemption provision in the form of section 10(26) of the Act and the interpretation which section 10(26) of the Act has received in the hands of the apex court as well as of this court in the earlier decisions as well as the judicially evolved principles bearing on the relevant aspect of statutory interpretation, I am of the considered view that a person to be qualified for the exemption contemplated in the above provision of the Act has to be essentially a member of a Scheduled Tribe notified under the Scheduled Tribes Order to be so for the area(s), mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as mentioned in clause (26) of section 10 of the Income-tax Act; and (c) the income must accrue or arise to him from any source in such area(s) or by way of dividend or interest on securities. There is no dispute with regard to the above proposition culled out from the provisions of the Income-tax Act read with the definition of Scheduled Tribes in clause (25) of article 366 of the Constitution. Dr. A. K. Saraf, learned senior counsel argued that the writ petitioners are members of the Scheduled Tribe community as notified under article 342 and they are serving in the State of Meghalaya which is an area specified in the Table appended to the Sixth Schedule. Therefore, by virtue of their status as members of the Scheduled Tribe, they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may quote hereinbelow the relevant provisions of the Constitution as well as the Act: "Article 366. Definitions.-In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say- (25) 'Scheduled Tribes' means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 342 to be Scheduled Tribes for the purposes of this Constitution. Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. They would, however, be entitled to exemption from payment of income-tax if their respective tribe has also been notified as Scheduled Tribe in the State of Meghalaya and in Bodoland in relation to the areas where they are presently residing. All the writ petitioners are transferred from different areas mentioned in the Table to paragraph 20. Therefore, their residence in the State of Meghalaya and in Bodoland cannot be construed to be "fleeting". The question would have been altogether different had their stay been casual passing or purely temporary. The word "residing" occurring in section 10(26) cannot be given restricted interpretation confining the benefit of exemption only to the local members of the Scheduled Tribes. We are unab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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