Decided on October 05,2010

UNION OF INDIA Respondents


Dinakaran, CJ - (1.) THE assessee is the writ petitioner. THE relevant Assessment Years are 1995-1996 and 1996-1997. THE assessee has challenged the order of assessment dated 11.12.2009 on the file of the 4th respondent, namely, Assistant Commissioner of Income Tax, Circle ? I, Siliguri, confirming, the earlier assessment orders dated 09.07.2001 and 28.03.2001 for the Assessment Years 1995-1996 and 1996-1997 respectively based on the best judgment order passed under Sections 144/147 of the Income Tax Act, 1961.
(2.) THE impugned assessment order dated 11.12.2009 is passed in continuation of the Orders of this Court dated 15.07.2009 in W.P.(C) Nos. 31 and 38 of 2001. A perusal of the said Order dated 15.07.2009 in W.P.(C) Nos. 31 and 38 of 2009 reveals that the said writ petitions were originally disposed of by an Order dated 21.07.2005, which reads as hereunder: "In the result, the writ petition is closed on withdrawal with a direction to the parties to maintain status quo with regard to the matter till the final decision in the matter is taken by the Committee concerned. However, it is made clear that the Committee shall expedite the matter and dispose of the same, thus taking a decision in the matter as early as possible, preferably within 3 (three) months from the date of receipt of this order. ........................................... The parties are given liberty to approach this Court if they are aggrieved by the decisions of the Committee, if so advised. ................" Concededly the issue, then, was: whether the income of the non-Sikkimese residing in Sikkim is taxable? As the said question was referred to a Committee and the decision of the Committee was pending, this Court passed an Order dated 21.07.2005, as referred to above.
(3.) HOWEVER, as being mentioned, the said writ petitions No.31 and 38 of 2001 were taken for further hearing on 27.04.2006 and this Court passed an Order dated 27.04.2006 in W.P.(C) Nos. 31 and 38 of 2001, which reads as hereunder: "[1] .............................................................. [2] This Writ Petition was allowed to be withdrawn with a direction to the parties to maintain status quo in regard to the matter till the final decision is taken by the Committee. Vide Order dated 02.03.2006, on the prayer made by the State for extension of time as mentioned in Court's order dated 21.7.2005 the office was directed to list the main Writ Petition on 05.06.2006 for necessary orders. [3] The issue, which was involved in this Writ Petition is under consideration in Writ Petition No. 13 of 2006. [4] Let this Writ Petition be listed under heading To Be Mentioned on 15.05.2006 along with Writ Petition No. 13/2006." By virtue of Section 4 of the Finance Act, 2008, Section 10 (26 AAA) of Income Tax Act, 1961 was inserted, which reads as hereunder: "4. In section 10 of the Income-tax Act, - (a) after clause (26AA) as omitted by the Finance Act, 1997, the following clause shall be inserted and shall be deemed to have been inserted with effect from the 1st day of April, 1990, namely: - `(26AAA) in case of an individual, being a Sikkimese, any income which accrues or arises to him- (a) from any source in the State of Sikkim; or (b) by way of dividend or interest on securities; Provided that nothing contained in this clause shall apply to a Sikkimese woman who, on or after the 1st day of April, 2008, marries an individual who is not a Sikkimese. Explanation.- For the purpose of this clause, "Sikkimese" shall mean ? (i) an individual, whose name is recorded in the register maintained under the Sikkim Subjects Regulation, 1961 read with the Sikkim Subject Rules, 1961 (hereinafter referred to as the "Register of Sikkim Subjects"), immediately before the 26th day of April, 1975; or (ii) an individual, whose name is included in the Register of Sikkim Subjects by virtue of the Government of India Order No. 26030/36/90-I.C.I., dated the 7th August, 1990 and Order of even number dated the 8th April, 1991; or (iii) any other individual, whose name does not appear in the Register of Sikkim Subjects, but it is established beyond doubt that the name of such individual's father or husband or paternal grandfather or brother from the same father has been recorded in that register;'" (emphasis supplied);

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