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TMI Blog1985 (11) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... led before the ITO and in appeal before the AAC. Hence, this.second appeal. 2. Arguments of the learned counsel for the assessee in support of the objection taken by him are as under : (1) Sikkim was acceded to Indian with effect from 26-4-1975 as a result of which Article 371F was inserted in the Constitution by the Constitution (36th Amendment) Act, 1975. Clause (n) of the said article reads as under : "(n) the President may, by public notification, extend with such restrictions or modifications as he thinks fit to the State of Sikkim any enactment which is in force in a State in India at the date of notification;" The Income-tax Act, 1961 ('the Act') in terms of the said clause had not been extended to the State of Sikkim and, as such, the Act is not applicable to Sikkim. (2) The word 'India' used in section 1 of the Act and so also at other places in the Act does not, therefore, included Sikkim. Thus, Sikkim is though part of India with effect from 26-4-1975 for other purposes but is not part of India for the purpose of the Act. (3) Such interpretation is further reinforced by clause (25A) of section 2 of the Act. Union territories of Dadra and Nagger Heavily, Goa, Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect from 26-6-1975 even for the purpose of the Act.'India' appearing in section 1 and at other places of the Act is deemed to include Sikkim with effect from 26-4-1975, since, according to article 1 of the Constitution, the territory of India shall comprise -. (a) the territories of the States; (b) the Union territories specified in the First Schedule of the Constitution; and (c) such other territories as may be acquired. In support, the learned departmental representative has further drawn our attention to the Eighth Schedule of the Act in which list of backward areas has been given for the purpose of section 80HH of the Act and whole of the State of Sikkim has been included in the list of the backward areas with effect from 1-4-1976. It is further argued by him that clause (25A) of section 2 is of no assistance to interpret that 'India' does not include Sikkim for the purpose of this Act. The said clause was required to be inserted with a purpose, namely, application of section 6 to the said Union territories in respect of any period. Thus, according to him, the assessee cannot claim the status of non-resident. Alternatively, it is contended by him that salary of the Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary and is a high constitutional dignitary. 4. It is admitted by both the parties that the Act has not been extended to Sikkim. Despite our strenuous efforts, we also could not find any such notification under article 371F of the Constitution extending the Act to Sikkim. Sikkim, no doubt, was admitted into Indian Union as the 22nd State in the First Schedule but thereby all the laws applicable to the Indian territory were not authomtacally extended to Sikkim. On the other hand, there is a special provision in clause (k) of article 371F that all laws in force immediately before the appointed day in the territories comprising State of Sikkim or any part thereof shall continue to be in force there in until amended or repealed by a competent Legislature or other competent Legislature or other competent authority. There is still a clear provision in clause (n) of article 371F that the President may by public notification, extend with such restrictions or modifications as he thinks fit to the State of Sikkim any enactment which is in force in a State in India at the date of the notification. Thus, the word 'India' used in the Act cannot be construed to comprise the State of Sikkim ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a High Court Judge has no employer has been obviously made by the Hon'ble Mr. Justice Bhagwati in the context that he is independent and supreme within his allotted sphere. The observation has to be taken in the light of the earlier observation 'plainly and unquestionably, therefore, a High Court Judge is not subordinate either to the Executive or to the Legislature ... He has a constitutional function to discharge.' In the context of these observations alone, it should be taken that a High Court Judge had no employer but such observation should not be stretched too far to construe that he is an independent person liked a sovereign and the salary received by him is not a salary. It should not be forgotten that no constitutional functionay is above the Constitution. The Constitution lays down qualifications of a person for appointment of a Judge of the High Court and the authority for such appointment. The Judge of the High Court is bound by the Constitution and the laws. He cannot act according to his own wishes and whims. He has to take an oath that he shall uphold the sovereignty and integrity of India and that the shall perform the duties of his office duly and faithfully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not an employment under the Government of India. The Hon'ble High Court was concerned with the only question as to whether the appointment of Shri Raghukul who was memebr of the Rajasthan Public Service Commission, as Governor of Rajasthan was valid, since, according to article 319 of the Constitution, on ceasing to hold office, a memebr of a State Public Service Commission is not eligible for any other employmnent either under the Government of India or under the Government of a State. The Hon'ble High Court held in that case that the appointment of Shri Raghukul as Governor of State of Rajasthan was not invalid, sice ti was not an employnment under the Government of India. But thereby it should not be taken that a Governor was not in employment of the Union of India. 9. Furthermore, section 23D of the Supreme Court Judges (Conditions of Service) Act and sectioin 22D of the High Court Judges (Conditions of Sergvice) Act make it abundantly clear that salary of a High Court Judge is his income chargeable under the head 'Salaries' under section 15 of the Income-tax Act. 10. The general tests to be applied for finding out if there is employer and employee relationship are these ..... X X X X Extracts X X X X X X X X Extracts X X X X
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