Interpretation of Section 10(26) of the Income Tax Act in relation to the constitutional provisions defining Scheduled Tribes.

D. Biswas, Actg. C.J.

1. This batch of writ appeals arises out of a common judgment and order dated June 22, 2005, (see NEEPCO Tribal Employees' Welfare Association v. Union of India passed by the learned single judge of this court in Writ Petition (C) No. 200(SH) of 2001, Writ Petition (C) No. 340(SH) of 2002, Writ Petition (C) No. 14(SH) of 2004, Writ Petition (C) No. 15(SH) of 2004 and Miscellaneous Case No, 188 (SH) of 2001.

2. The writ 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.

3. Writ Petition (C) No. 200(SH)/2001 has been filed by the NEEPCO Employees Welfare Association, a registered association, represented by its organising secretary. The association comprised of members belonging to the Scheduled Tribe community serving under the NEEPCO. They have been enjoying the benefits of tax exemption envisaged under Section 10(26) of the Income Tax Act by virtue of their status as members of the Scheduled Tribe community under Article 366(25) while they were posted within the specified areas mentioned in Section 10(26). The Income Tax Officer (TDS), Shillong, by the impugned letter dated June 29, 2001, instructed the Director (Finance), NEEPCO Limited, Shillong, to start deduction of Income Tax under Section 192 with effect from April 1, 2001, from the salary bills of the members of the petitioner-association for the reason that they are ineligible for exemption under Section 10(26) of the Act. The reason for such a direction is that the member of any scheduled community coming from outside the Sixth Schedule Area is not exempted from paying taxes under Section 10(26). Consequent thereupon, the concerned authority of NEEPCO by the letter dated July 20, 2001, called upon the members of the petitioner-association to furnish exemption certificates from the Income Tax authorities for calculation and deduction of Income Tax. The Income Tax Officer, Ward-3, Shillong, by the impugned letter dated August 7, 2001, informed the NEEPCO authority that a member of a Scheduled Tribe community who is not ordinarily residing in the State of Nagaland, Manipur, Tripura, Arunachal Pradesh, Mizoram 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.

4. 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 of 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.

5 The petitioner in W.P. (C) No. 14(SH)/2004 was serving as a deputy manager in the Power Grid Corporation of India, Shillong. She belongs to Miri (Mishing) tribe which is a recognised Scheduled Tribe in the State of Assam. Her application for tax exemption certificate was rejected and, consequent thereupon, her employer started deducting tax at source from her salary compelling her to file her return. She filed her return for the year ending March 31, 1999, claiming a refund of Rs. 13,064. The claim has been refused by the Assessing Officer by the order