Rajmohan Doley And 4 ORS v. The Union Of India And ORS

THE HIGH COURT OF TRIPURA _A_G_A_R_T_A_L_A_ WP(C) No.208 of 2014

1. Sri Raj Mohan Doley, S/o Promod Kr. Dolley, Asstt. E. Er.(Production) presently resident of ONGC Quarter No.A-56, ONGC North Colony, Badharghat, Agartala, Tripura.

2. Sri Haliram Rabha, S/o Lt. Dhaneswar Rabha, Asstt. E. Er(Production), presently resident of ONGC Quarter, ONGC Complex, Badharghat, Agartala, Tripura.

3. Sri Rameswar Narjary, Chief Engineer (Drilling), presently resident of ONGC Quarter, ONGC Complex, Badharghat, Agartala, Tripura.

4. Sri Rajeev Pegu, S/o Gambhir Pegu Superintending Engineer (Production), presently resident of ONGC Quarter, ONGC Complex, Badharghat, Agartala, Tripura.

5. Sri Sishudhar Doley, S/o Late Kulamon Dolley, S.E(Drilling), presently resident of ONGC Quarter, ONGC Complex, Badharghat, Agartala, Tripura.

............... Petitioners.

- Vs -

1. The Union of India, represented by the Secretary to the Government of India Ministry of Finance, New Delhi, Pin - 110 001.

2. The Commissioner of Income Tax, NE Region, Aaykar Bhawan, Mahatma Gandhi Road, P.O. Shillong, Meghalaya, PIN - 793 001.

WP(C)208 of 2014 Page 1 of 5

3. The Commissioner of Income Tax (TDS), NE Region, Aaykar Bhawan, G.S. Road, Guwahati - 5, Assam, PIN - 781 005.

4. The Income Tax Officer (TDS), City Centre, 5th Floor, Paradise Choumuhani, P.O. Agartala, West Tripura, PIN - 799 001.

5. The Oil and Natural Gas Corporation Ltd. represented by it's Chairman-cum-Managing Director, Jeevan Bharati Building, Tower - II, 125, Indira Chowk, Cannought Place, New Delhi - 110 001.

6. The Asset Manager, ONGC Tripura Asset, Badharghat, P.O - O.N.G.C., Agartala, West Tripura, PIN - 799 014.

7. D.G.M(F & A) - Incharge, ONGC Tripura Asset, Badharghat, P.O - O.N.G.C, Agartala, West Tripura, PIN - 799 014. ................... Respondents.

_B_E_F_O_R_E_ HON'BLE THE CHIEF JUSTICE MR. DEEPAK GUPTA HON'BLE MR. JUSTICE U B SAHA For the petitioners : Mr. D Chakrborty, Advocate. For the respondents : Mr. P K Biswas, Asstt. S.G., Ms. P Dhar, Advocate.

Date of hearing & Judgment : 26.02.2015.

Whether fit for reporting : No.

JUDGMENT & ORDER (ORAL) ( Deepak Gupta,CJ ) The main prayer made by the petitioners in this petition is for quashing of the circular dated 4th March, 2014 whereby all the employees of the Oil and Natural Gas Corporation Ltd. (ONGC) who belong to the Scheduled Tribes category have been directed to WP(C)208 of 2014 Page 2 of 5

furnish 'No Deduction Certificate' in terms of Section 197 of the Income Tax Act.

2.

This question is no longer res-integra. A Full Bench of this Court was constituted to answer the following six questions. "(1) Whether, a member of a Scheduled Tribe as defined in Clause 25 of Article 366 of the Constitution of India is entitled to grant of exemption under section 10(26) only when he is working 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 and Tripura or when he is posted anywhere in the country?

(2) What is the scope and ambit of the words "residing" in the opening portion of section 10(26) of the Act? (3) Whether, a person belonging to the Scheduled Tribes and falling within the meaning of Clause 25 of Article 366 but not originally belonging to the areas specified in Part I or Part II of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution and not belonging to the States of Arunachal Pradesh, Manipur, Mizoram, Nagaland and Tripura is entitled to benefit of section 10(26) when posted in such areas?

(4) Whether, a person who is a member of the Scheduled Tribes and belongs to the areas specified in Part I or Part II of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution or belongs to the States of Arunachal Pradesh, Manipur, Mizoram, Nagaland and Tripura is entitled to benefit of exemption under section 10(26) of the Act when he is posted outside these areas? (5) Whether, a member of the Scheduled Tribes is bound to obtain a certificate of exemption from the Income Tax Authorities in terms of section 197 of the Act?

(6) Whether, such certificate, if obtained, is valid for the entire service career of the member of the Scheduled Tribes or not?" WP(C)208 of 2014 Page 3 of 5

3.

The Full Bench vide its decision rendered on 20th February, 2015 in WP(C) No.73 of 2014 [Shri Chandra Mohan Sinku and others Vs. Union of India and others] has answered these questions in the following terms :

"30.

In view of the above discussion, we answer the six questions as follows :

(a) A member of a Scheduled Tribe would be entitled to the benefit of Section 10(26) only when he is posted in the specified areas. Once he is posted outside the specified areas then he ceases to reside in the specified are and the income does not accrue to him in the specified area.

(b) The scope and ambit of the word 'residing' has to be given its natural meaning that a person has an abode and is living in a particular area for his work and livelihood for a reasonably long length of time. However, whether a person is actually residing or not is a question of fact to be decided on the facts of each case. (c) Question no.3 is answered in favour of the assessees by holding that any member of a Scheduled Tribe declared to be so under Article 342 of the Constitution, even though he does not belong to the specified area, would be entitled to benefit of Section 10(26) when posted to at a station in the specified area and residing therewith in connection with his employment.

(d) Question no.4 is answered by holding that a member of Scheduled Tribe originally hailing from the specified area would not be entitled to the benefit of exemption under Section 10(26) when he is residing outside the specified areas.

(e) A member of Scheduled Tribe is bound to obtain a certificate of exemption in terms of Section 197.

(f) Question no.6 is answered by holding that the validity of the certificate will be for one assessment year only." WP(C)208 of 2014 Page 4 of 5

4.

In view of the reasoning given in the Full Bench judgment and the answers given to questions 5 and 6 quoted hereinabove, there is no merit in the petition which is accordingly dismissed. JUDGE CHIEF JUSTICE WP(C)208 of 2014 Page 5 of 5