{"id":281633,"date":"2023-01-14T11:00:21","date_gmt":"2023-01-14T05:30:21","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=281633"},"modified":"2023-01-20T10:56:00","modified_gmt":"2023-01-20T05:26:00","slug":"proviso-section-1026aaa-income-tax-act-unconstitutional-sikkimese-women-marrying-non-sikkimese-men-after-april-2008-cant-be-denied-tax-emeption-supreme-court-shah-nagarathna-legal-updates-research","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2023\/01\/14\/proviso-section-1026aaa-income-tax-act-unconstitutional-sikkimese-women-marrying-non-sikkimese-men-after-april-2008-cant-be-denied-tax-emeption-supreme-court-shah-nagarathna-legal-updates-research\/","title":{"rendered":"Sikkimese women can’t be denied tax exemption merely for marrying non-Sikkimese men after April 2008; SC strikes down Proviso to Section 10(26AAA) of Income Tax Act"},"content":{"rendered":"

Supreme Court<\/strong>: In a big win for Sikkimese, the bench of MR Shah and BV Nagarathna, JJ has held that:<\/p>\n

    \n
  1. The exclusion of Old Indian settlers, who have permanently settled in Sikkim prior to merger of Sikkim with India on 26.04.1975 from the definition of \u201cSikkimese\u201d in Section 10(26AAA) of the Income Tax Act, 1961<\/a> is unconstitutional and hence struck down. Consequently, all Indians\/old Indian settlers, who have permanently settled in Sikkim prior to the merger of Sikkim with India on 26.04.1975, irrespective of whether his\/her name is recorded in the register maintained under the Sikkim Subjects Regulations, 1961 read with Sikkim Subject Rules, 1961 or not, are entitled to the exemption under Section 10(26AAA) of the Income Tax Act<\/em>.<\/li>\n
  2. Exclusion of \u201ca Sikkimese woman, who marries a non-Sikkimese after 01.04.2008\u201d from exempted category as per the proviso to Section 10(26AAA) of the 1961 Act is without any reasonable justification and hence, struck down for being unconstitutional.<\/li>\n<\/ol>\n

    While the judgment was authored by MR Shah, J, Nagarathna, J wrote a detailed concurring opinion, assigning additional reasons and directions to the Union of India. <\/u><\/p>\n

    The ruling came after the writ petitioners successfully argued before the Court that by excluding the Indians from the definition of Sikkimese, the exemption granted under Section 10(26AAA) of the Act 1961, is not available to the Indian Settlers resulting in discrimination. There is no valid ground for discriminating against this section of the residents of Sikkim alone. Further, the Proviso to Section 10(26AAA), insofar as it excludes from the exempted category, \u201cSikkimese women\u201d who marries a non-Sikkimese after 01.04.2008, is discriminatory and violative of Articles 14<\/a>, 15<\/a> and 21<\/a> of the Constitution of India<\/a> as the exclusion is based on gender<\/u><\/em>. It was submitted that a woman is not a chattel and has an identity of her own, and the mere factum of being married ought not to take away that identity. <\/u><\/em><\/p>\n

    Issues<\/strong><\/span><\/h3>\n
      \n
    1. Indians, who have settled in Sikkim prior to the merger of Sikkim with India on 26.04.1975, whether \u201cSikkimese\u201d as per the definition under Section 10(26AAA)<\/li>\n
    2. Constitutionality of exclusion of \u201ca Sikkimese woman, who marries a non-Sikkimese after 01.04.2008\u201d from exempted category as per the proviso to Section 10(26AAA) of the 1961 Act<\/li>\n<\/ol>\n

      Issue 1: Indians, who have settled in Sikkim prior to the merger of Sikkim with India on 26.04.1975, whether \u201cSikkimese\u201d as per the definition under Section 10(26AAA)? <\/strong><\/span><\/h3>\n

      \n

      They are all Sikkimese! All old settlers entitled to the exemption under Section 10(26AAA) of the Income Tax Act: Supreme Court<\/a><\/p><\/blockquote>\n