The Indian Ministry of Home Affairs (MoHA) Monday filed a review petition in the Supreme Court of India against certain directions given by the court in a recent case concerning Sikkimese Nepalis.
On January 13, the court ruled that under Sikkim Income Tax Manual 1948, “[a]ll persons engaged in business were subjected to tax irrespective of their origin.” Put simply, the court held that the benefit of tax exemption provided in Section 10 (26AAA) shall be extended to all Sikkimese people.
Previously, the tax exemption excluded “old Indian settlers,” who permanently settled in Sikkim before the merger of the state into the Indian union on April 26, 1975, even if their names were recorded in the register maintained under the Sikkim Subjects Regulations of 1961, read with the Sikkim Subject Rules, 1961. The division bench comprising of Justices M R Shah and B V Nagarathna asked the state to make necessary amendments to the Explanation to Section 10 (26AAA) of the act.
Home Minister Amit Shah said the government “reiterated its position about the sanctity of Article 371F of the Constitution that safeguards the Sikkimese identity, which should not be diluted” in the review petition.
The court also truck down the proviso, an article or clause that introduces a condition, to Section 10 (26AAA), which excluded Sikkimese women who had married non-Sikkimese men after April 1, 2008, from the benefit of tax exemption because violated of Articles 14, 15 and 21 of the Indian Constitution. Justice Nagarathna particularly remarked:
When the Explanation refers to an ‘individual,’ it includes both Sikkimese men and women, in fact, all genders; it cannot have a restrictive or myopic reference to only Sikkimese men and exclude those Sikkimese women covered under the proviso. A proviso cannot overarch a provision.