Gauhati High Court
Dr. Shri Lakhan Kma & Ors vs The Union Of India & Ors on 17 June, 2011
Author: Anima Hazarika
Bench: Anima Hazarika
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA,
MIZORAM & ARUNACHAL PRADESH)
(SHIILONG BENCH)
WRIT PETITION (C) NO. 174 [SH] OF 2007
WRIT PETITION (C) NO. 190 [SH] OF 2007
WRIT PETITION (C) NO. 210 [SH] OF 2007
1. WRIT PETITION (C) NO. 174 [SH] OF 2007
1. Dr. Shri Lakhan Kma,
S/o Smti. Shantina Kma &
Shri Sisir Kumar Das,
Resident of Lawsohtun, Block-3,
Shillong- 4, East Khasi Hills District,
Meghalaya,
2. Prof. Shri David Reid Syiemlieh,
S/o Smti. Q. Syiemlieh & (L)
Shri G.D. Reid,
R/o Khliehshnong, Malki,
Shillong, East Khasi Hills District,
Meghalaya.
..... PETITIONERS
-Versus-
1. The Union of India,
Represented by the Secretary
to the Taxation Department,
Govt. of India, New Delhi-1 .
2. The Commissioner of Income Tax
Department, N.E. Region, Ayakar
Bhawan, Shillong-1, Meghalaya.
3. The Assistant Commissioner of
Income Tax, Circle Shillong,
Ayakar Bhawan, Shillong-1,
Meghalaya.
4. The Income Tax Officer,
Income Tax, TDS, Shillong,
Ayakar Bhawan, Shillong-1,
Meghalaya.
..... RESPONDENTS
WP(C) Nos. 174 (SH) of 2007 and analogous Page 1 of 15
2. WRIT PETITION (C) NO. 190 [SH] OF 2007
1. U.P.D. Sawyan, S/O (L) LOisimon Sawian, Resident of Mawprem, Shillong, Mylliem Syiemship, East Khasi Hills, Meghalaya.
......PETITIONER
-Versus-
1. The Union of India, Represented by the Secretary Govt. of India, Ministry of Finance, New Delhi.
2. The Commissioner of Income Tax N.E. Region, Ayakar Bhawan, Shillong, Meghalaya.
3. The Assistant Commissioner of Income Tax, N.E. Region, Ayakar Bhawan, Shillong, Meghalaya.
.......RESPONDENTS
3. WRIT PETITION (C) NO. 210 [SH] OF 2007
1. Mr. Raju Jyrwa, S/o Mrs. Misi Jyrwa, Resident of Byrnihat, P.S. Byrnihat, District- Ri-Bhoi, Meghalaya, ..... PETITIONER
-Versus-
1. The Union of India, Represented by the Secretary to the Taxation Department, Govt. of India, New Delhi-1 .
2. The Commissioner of Tax Department, N.E. Region, Ayakar Bhawan, Shillong-1, Meghalaya.
3. The Assistant Commissioner of Income Tax, Circle Shillong, Ayakar Bhawan, Shillong-1, WP(C) Nos. 174 (SH) of 2007 and analogous Page 2 of 15 Meghalaya.
4. The Income Tax Officer, Income Tax, TDS, Shillong, Ayakar Bhawan, Shillong, Meghalaya.
..... RESPONDENTS
5. The Food Corporation of India, District Office Shillong, Marwein Building, Upper Lachumiere, Shillong- 1, Meghalaya.
.... PROFORMA RESPONDENT BEFORE THE HON'BLE MRS. JUSTICE ANIMA HAZARIKA THE HON'BLE MR. JUSTICE B.D. AGARWAL For the Petitioners : Mr. Mr. H.S. Thangkhiew, Sr. Advocate, Mr. V.G.K.Kyntia, Mr. S.P. Mahanta, Mr. A.K. Agarwal, Mrs. M. Wallang, Mr. H. Abraham, Mrs. R.M. Kharsyntiew Advocates.
For the respondents : Mr. R. Debnath, CGC, Mr. U. Bhuyan, Sr. Advocate.
Date of hearing : 14.06.2011 & 15.06.2011 Date of judgment : 17. 06.2011.
JUDGEMENT AND ORDER Agarwal, J Since an identical issue is involved in all the aforesaid three writ petitions, these are being disposed of by this common judgment.
[2] Heard the argument of Shri H.S. Thangkhiew, Mr. S.P. Mahanta, Shri VGK Kyntia, learned counsel for the writ petitioners and that of Shri U. Bhuyan, learned standing counsel appearing for the respondents.
WP(C) Nos. 174 (SH) of 2007 and analogous Page 3 of 15[3] Precisely, in all the aforesaid three writ petitions, the question whether off-springs of a tribal mother and a non-tribal father can enjoy immunity from paying income tax. In other words, whether such children of tribal and non-tribal parents are exempted from paying income tax as provided under Section 10 (26) of the Income Tax Act, 1961 (in short the "I.T. Act").
[4] For ready reference, Section 10 and sub-section (26) of the I.T. Act are extracted below:
"10 Incomes not included in total Income. -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 [States of Arunachal Pradesh, Manipur, Mizoram, Nagaland, Sikkim and Tripura] or in the areas covered by notification No. TAD/R/35/50/109, dated 23rd February, 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 (Reorganization) Act, 1971 (18 of 1971)] any income which accrues or arises to him.
(a) from any source in the areas, [or States aforesaid] or
(b) by way of dividend or interest on securities. "WP(C) Nos. 174 (SH) of 2007 and analogous Page 4 of 15
[5] The immediate cause for filing the writ petitions are that in the writ petitioner in W.P.(c) No. 190 (SH) of 2007, the Income Tax Department has issued an order to North Eastern Hill University to deduct tax at source from the bills of the writ petitioners from their salaries on the premise that the writ petitioners cannot be treated as scheduled tribes since their fathers are from advanced community and are not scheduled tribes. Similar action has been taken in W.P.(c) No. 210 (SH) of 2007. In this case also the Income Tax Department has issued a direction to the Food Corporation of India to deduct tax at source against all payments made against salaries, rent, business etc. However, in W.P.(c) No. 190 (SH) of 2007, the Income Tax authority has issued a notice to the writ petitioner to file his income tax return under Section 142 of the I.T. Act. All these directions and notices have been issued on the basis of the judgment of the Hon'ble Supreme Court of India rendered in the case of Anjan Kumar Vs. Union of India, reported in (2006) 3 SCC 257.
[6] Article 342 of the Constitution of India vests power upon the President to specify the tribes and tribal communities as scheduled tribes in a State or Union Territory. Article 366 (25), which defines "Scheduled Tribes"
means such tribes or tribal communities or parts or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution. Article 244 (2) of the Constitution of India provides that the provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the State of Meghalaya and certain other states. In view of these enabling provisions in the Constitution, Sixth Schedule has been incorporated which lays down the procedure for administration of tribal areas and Part II of the Table of the Sixth Schedule have included Khasi Hills District, Jaintia Hills District and Garo Hills District in the State of Meghalaya as tribal areas.WP(C) Nos. 174 (SH) of 2007 and analogous Page 5 of 15
[7] At this stage, it may also be mentioned here that pursuant to paragraph 11 of the Sixth Schedule to the Constitution of India, the Khasi Hills Autonomous Distinct Council has enacted a law, with the objective of protection and preservation of Khasi social custom of lineage. The nomenclature of the law is the "Khasi Hills Autonomous District (Khasi Social Custom of Lineage) Act 1997", briefly "Khasi Custom Act". This Act received the assent of the Governor on 23.02.2005 and published in the gazette Notification on 25.03.2005. This Act has, inter alia, provided for issuance of caste certificates "by the Registration Authority".
[8] With a view to check issuance of Scheduled Castes and Scheduled Tribes certificates at random with ulterior and oblique motive by various authorities, the National Commission of Scheduled Tribes has also issued various instructions as to how such certificates can be issued. Similarly, the Government of India has also issued circulars to the State Governments/ Union Territories emphasizing that such certificates should be issued only on fulfillment of certain pre-conditions and proper care should be taken before issuance of such certificates. The circulars are dated 28.04.1984 and 25.05.1986, whereas, the instructions of National Commission for Scheduled Tribes have been issued on 03.08.2009. Under the aforesaid circular a person claiming to be Scheduled Castes or Scheduled Tribes by birth, the following requirements to be fulfilled:
"(i) that the person and his parents actually belong to the community claimed;
(ii) that the community is included in the Presidential Orders specifying the Scheduled Castes and Scheduled Tribes in relation to the concerned states;
(iii) that the persons belong to the State and to the area within that State in respect of which the community has been scheduled;WP(C) Nos. 174 (SH) of 2007 and analogous Page 6 of 15
(iv) if the person claims to be a Scheduled Caste, he should profess either the Hindu or the Sikh religion;
(v) if the person claims to be a Scheduled Tribe, he may profess any religion;
(vi) that he should be permanent resident on the date of notification of the Presidential Order applicable in his case."
[9] Section 2 (h) of the Khasi Custom Act has defined Khasi to mean "a person belonging to Khasi tribe who may be a Khasi, Jaintia, Pnar, Synteng, War, Bhoi or Lyngngam or who is recognized or deemed as such under prevailing Khasi Custom or this Act." Section 2 (n) speaks about the Registration Authority. Section 3 has laid down the criteria for declaring a person as a Khasi. Under Section 5 a particular authority has been constituted for issuing caste certificates. The aforesaid provisions of law are also incorporated in this judgment for effective disposal of the writ petitions.
"2. Definitions- In this Act, unless there is anything repugnant in the subject or context:-
"(h) Khasi" means a person belonging to Khasi tribe who may be a Khasi, Jaintia, Pnar, Synteng, War, Bhoi or Lyngngam or who is recognized or deemed as such under prevailing Khasi Custom or this Act."
"(n) "Registration Authority" means such person or authority as the Executive Committee may, by a notification in the Gazette, appoint to be the registration authority for the purpose of exercising all or any of the powers, duties or functions of the registration authority under this Act and the rules made thereunder for the whole or any part of the district as may be specified in the notification;"WP(C) Nos. 174 (SH) of 2007 and analogous Page 7 of 15
"3. Khasi Social Custom of Lineage:- (1) On or after the commencement of this Act, every person born of a legal marriage-
(a) whose parents are or were both Khasi, shall be a Khasi of the Kur, Jait or Clan of the mother, or
(b) whose mother is or was a Khasi and the father a non-Khasi, shall be a Khasi of the Kur Jait or clan of the Khasi mother if and only if the person and his/her Khasi mother fulfill the following requirements namely,
(i) they can speak Khasi, unless prevented from knowing the language by circumstances beyond their control,
(ii) they observed and are governed by Khasi matrilineal system of lineage, the Khasi laws of inheritance and succession and the Khasi laws of consanguinity and kinship.
(iii) had not, at anytime, in writing or otherwise voluntarily renounced the Khasi status.
(iv) had not adopted the personal law of the non-
Khasi father or husband as the case may be or a personal law of a society incompatible with Khasi personal laws and customs, and,
(v) had not lost or been deprived of Khasi status by judgment or order of any competent court or by operation of any such judgment or order, or under the provision of this Act or WP(C) Nos. 174 (SH) of 2007 and analogous Page 8 of 15
(c) whose father is or was a Khasi and the mother a non-Khasi and the Khasi father and every such person fulfill the requirements specified in sub-clauses (i) to
(v) of clause (b) of sub-section (1) of this section shall be a Khasi belonging to such Khasi, Kur, Jait, or clan in accordance with the prevailing Khasi customs applicable to such Khasi father or belonging to such new Kur, Jait, or clan as may be adopted under any prevailing Khasi customs applicable to the Khasi father or by "Tang Jait"
"5. Authority to make registration and grant of Khasi tribe certificate:
(1) Subject to the other provisions of this Act and such condition and restrictions, as may be prescribed, the registration authority shall be the only authority having jurisdiction to register as a Khasi a person who is or deemed to be a Khasi under this Act and to grant a Khasi tribe certificate to the person"
" (2) xxxx xxxxx xxxxxx"
[10] The admitted fact is that all the writ petitioners are off-springs of a Khasi non-tribal father. According to the learned counsel for the petitioners all the petitioners have adopted Khasi language and they observe Khasi matrilineal system of lineage and are permanent residents of Khasi Hills District and they also derive income from tribal areas, which has been exempted from payment of taxation under Section 10(26) of the I. T. Act. On these premises, the learned counsel for the petitioner submitted that the impugned notices, either to submit income tax return or for deduction of tax at source are out and out illegal and without jurisdiction.
WP(C) Nos. 174 (SH) of 2007 and analogous Page 9 of 15[11] The learned counsel for the petitioners also contended that all the petitioners are possessing certificates of scheduled tribes, issued from the various Executive authorities of the State of Meghalaya and as such, they cannot be subjected to payment of income tax. The learned counsel also submitted that the judgment of the Hon'ble Supreme Court rendered in Anjan Kumar (supra) is a judgment in personam and stemming out of a couple of non-scheduled tribe area and as such the law laid down in the said case is not applicable in the present case.
[12] Nearly six decades ago, a question came up before the Gauhati High Court as to who can be regarded as a member of Khasi tribe in the case of Wilson Reade Vs. C.S. Booth (AIR 1958 Assam 128). In that case the appellant's nomination for Legislative Assembly election was rejected on the ground that the appellant was an Anglo- Indian and was thus not a member of the scheduled tribes, as such, he was not entitled to be nominated as a candidate for the seat reserved for members of the tribe. Their Lordships declared that the appellant was a member of the Khasi community with the following analogy.
"26.The petitioner's father, no doubt, was of a European descent and he is domiciled in the territory of India and was born within such territory; but not necessarily of parents habitually residents therein and not established there for temporary purposes only. His father did not habitually reside in India. It has been found from the evidence that he used to go to England during holidays. This argument is tried to be countered by the respondent on the ground that according to the provisions of the General Clauses Act, the word parents in Art. 366 (2) will include mother and as admittedly the mother of the petitioner was habitually a resident of India, he is covered by the definition. In the view which we have taken earlier, it is not necessary to go into this question in great detail and WP(C) Nos. 174 (SH) of 2007 and analogous Page 10 of 15 decide it. It may however be reasonably contended that having regard to the context, the word parents should necessarily mean male parent and will not include the mother. Having considered carefully the evidence on the record, we are of opinion that the petitioner has fully established that he was a member of the Khasi community, and thus his nomination paper was wrongfully rejected and he must succeed. Section 100 (a), (b) and (c) of the Representation of the People Act read as follows:
"(1) Subject to the provisions of Sub-s.(2), if the Tribunal is of opinion-
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act; or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected, the Tribunal shall declare the election of the returned candidate to be void"
This section clearly provides that if it is found that the nomination of the petitioner has been wrongfully rejected, that by itself is a valid, ground for declaration of the election of the returned candidate to be void, and it is necessarily to be held that the results of the election have been materially affected by such a wrongful rejection."
[13] The learned counsel for the petitioners also pressed into service another judgment of Gauhati High Court given in the case of Commissioner WP(C) Nos. 174 (SH) of 2007 and analogous Page 11 of 15 of Income Tax Vs. Smt. A.M. Marbaniang, reported in (1993) Supp, (1) GLR 348 to contend that the members of the scheduled tribes are exempted from payment of income tax as stipulated in Section 10 (26) of the I.T. Act. In our considered opinion the said authority is not directly applicable in the cases at hand inasmuch as in the aforesaid case there was no dispute that the appellant was not a scheduled tribe. To put it differently, now we are examining the cases of few persons who are off-springs of intra-customary marriage.
[14] In the case of Anjan Kumar (supra), the appellant was the offshoot of a marriage between two different communities. The appellant's father was a person from general community whereas his mother belonged to scheduled tribes community. The SDJM, Goa (Bihar) issued a certificate to the appellant on the ground that the appellant's mother belonged to Oraon tribe, which is recognized as scheduled tribe in the State of Madhya Pradesh. From this fact itself, it is apparent that neither the place of residence of the appellant was a declared scheduled tribe area, nor he was a tribal. On the basis of scheduled tribe certificate, the appellant appeared in UPSC examination; however, his posting was withheld on the ground that the appellant could not claim his appointment against the quota for scheduled tribe.
[15] Referring to various provisions of the Constitution of India, the Apex Court culled out a proposition of law as to who can be acknowledged as scheduled tribe, if the parents are from different communities. In our opinion, it would be profitable to reproduce the legal principle as laid down by the Apex Court, which are as under:
"14. In view of the catena of decisions of this Court, the questions raised before us are no more res integra. The condition precedent for granting tribe certificate being that one must suffer WP(C) Nos. 174 (SH) of 2007 and analogous Page 12 of 15 disabilities wherefrom one belongs. The offshoots of the wedlock of a tribal woman married to a non-tribal husband - Forward Class (Kayastha in the present case) cannot claim Scheduled Tribe status. The reason being such offshoot was brought up in the atmosphere of Forward Class and he is not subjected to any disability. A person not belonging to the Scheduled Castes or Scheduled Tribes claiming himself to be a member of such caste by procuring a bogus caste certificate is a fraud under the Constitution of India. The impact of procuring fake/ bogus caste certificate and obtaining appointment/ admission from the reserved quota will have far-reaching grave consequences. The meritorious reserved candidate may be deprived of reserved category for whom the post is reserved. The reserved post will go into the hands of non-deserving candidate and in such cases it would be violative of the mandate of Articles 14 and 21 of the Constitution of India."
[16] We have already noted earlier Section 3 of the Khasi Customs Act, which lays down the pre- conditions for a person who can claim himself or herself as a Khasi. Having compared to the criteria laid down in Section 3 of the aforesaid Act, we do not find any conflict, inconsistency or incongruity in the law laid down by the Hon'ble Supreme Court of India, with that of the law of the Meghalaya.
[17] In a nutshell, before claiming himself/ herself as a person of scheduled tribe, one has to establish that he or she has adopted all the WP(C) Nos. 174 (SH) of 2007 and analogous Page 13 of 15 customs and culture of a tribal community, including adoption of tribal customs, language and permanently residing in a tribal area. In other words, a person who can prove that he/ she is not availing the facilities of a forward class and has assimilated himself/ herself and has been recognized and accepted by the tribal community will certainly be entitled to all the benefits that are admissible to tribal people under the Constitution of India and various laws enacted in that regard.
[18] In this way, we hold that the judgment of Anjan Kumar (supra) is a judgment in rem. However, the application of the legal principle laid down therein has to be decided on the facts and circumstances of each case.
[19] In the writ petitions before us, Income Tax Department has issued notices of filing of returns and deduction of tax at source solely on the basis of the judgment of Anjan Kumar (supra), without ascertaining whether the petitioners are not members of scheduled tribe.
[20] In writ petition (c) Nos. 174 and 210 (SH) of 2007, the I.T.O, TDS, Shillong has issued direction of deduction of tax at source even without issuing notice to the writ petitioners. Thus, in our opinion, it is in violation of the principles of natural justice. Consequently, the impugned notices of deduction of TDS are hereby set aside. The Income Tax authorities are hereby directed to issue appropriate notices at the first instance to the writ petitioners to show cause as to why they are liable to pay income tax and on receipt of the replies, the authority shall be at liberty either to accept the explanations or if necessary, the concerned officer may make an enquiry about the status of the petitioners.
[21] In writ petition (c) No. 190 (SH) of 2007, the Assistant Commissioner of Income Tax Department, Shillong has issued notice on 20.06.2007 to the writ petitioner under Section 142 of the I.T, Act 1961 for WP(C) Nos. 174 (SH) of 2007 and analogous Page 14 of 15 filing of income tax return. In reply to the said notice, the writ petitioner has already submitted a reply, contending that he is a member of scheduled tribe (Khasi) by birth and a copy of caste certificate has also been submitted to the authority. Hence, the Income Tax authority is at liberty to verify the claim of the writ petitioner vis-à-vis the admissibility of the caste certificate. Till these exercises are carried out, the impugned notices are hereby set aside. The stay orders are hereby made absolute.
[22] In the result, the writ petitions stand allowed subject to the observations made in this judgment.
JUDGE JUDGE
Eam/
WP(C) Nos. 174 (SH) of 2007 and analogous Page 15 of 15