assessee, Hon'ble Mr. Justice A.M. Bhattacharjee, was Judge o f Sikkim High Court during accounting period from 1-4-1976 to 31-3- 1980 relevant to assessment year 1980-81 and he is still Judge of said High Court. He has residential house in Siliguri in District of Darjeeling, West Bengal. Besides income of Rs. 1,000 from salary as per return filed Rs. 1,452 from house property his income from salary as per return filed by him in sum of Rs. 43,500 has been assessed to income-tax by ITO, Special Ward, Silguri,. He in original return showed his status as 'resident' and 'ordinarily resident'. However, second return was filed by him in which he claimed his status as 'non-resident'. His objection has been that his income from salary as Judge of Sikkim High Court was not taxable. His objection concurrently failed before ITO and in appeal before AAC. Hence, this second appeal. 2. Arguments of learned counsel for assessee in support of objection taken by him are as under: (1) Sikkim was acceded to Indian with effect from 26-4-1975 as result of which Article 371F was inserted in Constitution by Constitution (36th Amendment) Act, 1975. Clause (n) of said article reads as under: "(n) President may, by public notification, extend with such restrictions or modifications as he thinks fit to State of Sikkim any enactment which is in force in State in India at date of notification;" Income-tax Act, 1961 ('the Act') in terms of said clause had not been extended to State of Sikkim and, as such, Act is not applicable to Sikkim. (2) word 'India' used in section 1 of Act and so also at other places in 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 purpose of Act. (3) Such interpretation is further reinforced by clause (25A) of section 2 of Act. Union territories of Dadra and Nagger Heavily, Goa, Daman and Diu, and Pondicherry did not form party of India in 1961 when Act came into force and, therefore, Act was expressly extended to those terriers by Taxation Laws (Extension to Union Territories) Regulation, 1963 with effect from 1-4- 1963. No such extension was made to State of Sikkim. (4) assessee had though residential house at Siliguri in State of West Bengal in India, but he did not stay outside Sikkim for any period amounting in all to 90 days or more in any year since April 1977 and, as such, he was not 'resident' within meaning of section 6 of Act. Income earned by him in Sikkim was, therefore, not taxable. (5) Income received by him in Sikkim cannot be taken as income deeded to accrue or arise in India within meaning of section 9 of Act. only plausible provision applicable to assessee is clause (iii) of section 9(1) which reads as under: "(iii) income chargeable under head 'Salaries' payable by Government to citizen of India for services outside India;" assessee is, no doubt, citizen of India and he has been paid by Government for services outside India but said income is not chargeable under head 'Salaries. For this purpose reference is made to section 15 of Act, relevant portion of which is as under: "The following income shall be chargeable to income-tax under head 'Salaries' - (a) any salary due from employer or former employer to assessee in previous year, whether paid or not;" Judge of High Court is constitutional functionary and he has no employer. Salary or remuneration by whatever name it may be called, cannot be made taxable without existence of employer-employee relationship. Remuneration received by him, therefore, is not chargeable under head 'Salaries. For proposition that Judge of High Court has no employer and there is no relationship of master and servant vis-a-vis remuneration paid to him, following judgments of Hon'ble Supreme Court have been relied him, following judgments of Hon'ble Supreme Court have been relied upon: Union of India v. Sankalchand Himatlal Sheth AIR 1977 SC 2328 at p. 2377, Union of India v. Gopal Chandra Misra AIR 1978 SC 694 at p. 710 and Hargovind Pant v. Dr. Raghukul Tilak AIR 1979 SC 1109. 3. appeal is vehemently opposed by learned departmental representative. According to him, Sikkim must be taken as part of India with effect from 26-6-1975 even for purpose of Act.'India' appearing in section 1 and at other places of Act is deemed to include Sikkim with effect from 26- 4-1975, since, according to article 1 of Constitution, territory of India shall comprise - (a) territories of States; (b) Union territories specified in First Schedule of Constitution; and (c) such other territories as may be acquired. In support, learned departmental representative has further drawn our attention to Eighth Schedule of Act in which list of backward areas has been given for purpose of section 80HH of Act and whole of State of Sikkim has been included in list of 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 purpose of this Act. said clause was required to be inserted with purpose, namely, application of section 6 to said Union territories in respect of any period. Thus, according to him, assessee cannot claim status of non-resident. Alternatively, it is contended by him that salary of Judge of High Court is chargeable to income-tax under head 'Salaries'. He drew our attention to article 221 of Constitution which mentions that there shall be paid to Judges of each High Court such salaries as are specified in Second Schedule to Constitution. Second Schedule further mentions that there shall be paid to Judges of High Courts, in respect of time spent on actual services salaries at following rates per mensem, that is to say Chief Justice- Rs. 4,000, any other Judge - Rs. 3,500. Further reference has been made by him to section 22D of High Court Judges (Conditions of Service) Act, 1954 and section 23D of Supreme Court Judges (Conditions of Service) Act, 1958 which reads as under: Section 22D of High Court Judges (Conditions of Service) Act: "Exemption from liability to pay income-tax on certain perquisites or allowance received by Judge-Notwithstanding anything contained in Income-tax Act, 1961 (43 of 1961), - (a) value of rent-free official residence provided to Judge under sub- section (1) of his income chargeable under head 'Salaries' under section 15 of Income-tax Act, 1961." Section 23D of Supreme Court Judges (Conditions of Service) Act: "Exemption from liability to pay income-tax on certain perquisites received by Judge-Not with standing anything contained in Income-tax Act, 1961 (43 of 1961), value of rent-free official residence provided to Judge under sub- section (1) of section 23 shall not be included in computation of his income chargeable under ahead 'Salaries' under section 15 of Income-tax Act, 1961." From these provision, it is learned departmental representative argument, quite plain that income of Judges of Supreme Court and High Courts is chargeable under head 'Salaries' under section 15. Observations of Hon'ble Supreme Court in aforesaid three cases cited by learned counsel of assessee, learned departmental represtative contended, were made in different context and it cannot be said that there was no relationship of employer and employee between Judges of High Court and State, though Judge of High Court is constitutional functionary and is high constitutional dignitary. 4. It is admitted by both parties that Act has not been extended to Sikkim. Despite our strenuous efforts, we also could not find any such notification under article 371F of Constitution extending Act to Sikkim. notification under article 371F of Constitution extending Act to Sikkim. Sikkim, no doubt, was admitted into Indian Union as 22nd State in First Schedule but thereby all laws applicable to Indian territory were not authomtacally extended to Sikkim. On other hand, there is special provision in clause (k) of article 371F that all laws in force immediately before appointed day in territories comprising State of Sikkim or any part thereof shall continue to be in force there in until amended or repealed by competent Legislature or other competent Legislature or other competent authority. There is still clear provision in clause (n) of article 371F that President may by public notification, extend with such restrictions or modifications as he thinks fit to State of Sikkim any enactment which is in force in State in India at date of notification. Thus, word 'India' used in Act cannot be construed to comprise State of Sikkim therein. It is to be noticed that Union territories of Dadra and Nagar Heavily were admitted into Indian Union on 11-8-1961 and Goa, Daman and Diu on 20-12-1961 and Pondicherry on 16-8- 1962 and Act was extended thereto with effect from 1-4-1963 and for purpose of section 6 , said territories were taken as part of India in respect of any period. There was no such externdion of Act to State of Sikkim. learned counsel for assessee rightly contended that inclusion of whole of State of Sikkim as backward area in Eighth Schedule does not make Act applicable thereto, since any part of land to which Act is not applicable can be included in backward area for obvious purpose of development of that area. 5. We, therefore, hold that assessee, though is citizen of India, should be taken as non-resident for purpose of Act since as is evident from his affidavit, which we believe, he did not stay outside Sikkim for any period or periods amounting in all to 90 days or more in any year since April 1977. 6. However, he cannot claim exemption from tax on his salary. Salary drawn by him as Judge of High Court of Sikkim, as will be discussed presently, is income chargeable under head 'Salaries' payable by Government to citizen of India for service outside India and, as such, said income is deemed to accrue to him in India within meaning of section 9. Our attention had been drawn by learned counsel for assessee to these observations of Hon'ble Mr. Justice Krishna Iyer in Sankalchand Himatlal Sheth's case (supra): "... So it is that we must emphatically state Judge is not Government servant but constitutional functionary. He stands in different category. He cannot be equated with other 'services' although for convenience certain rules applicable to latter may, within limits, apply to former ...." (p. 2377) We may further read that in same case, Hon'ble Mr. Justice Bhagwati (as then he was) observed 'a High Court Judge had no employer, he occupies high constitutional office which is coordinate with executive and Legislature'. But these observations should not be taken to mean that Judge of High court is as independent as sovereign; he, in words of Hon'ble Mr. Bhagwati, is as much part of State as executive Govenment. observation that High Court Judge has no employer has been obviously made b y Hon'ble Mr. Justice Bhagwati in context that he is independent and supreme within his allotted sphere. observation has to be taken in light of earlier observation 'plainly and unquestionably, therefore, High Court Judge is not subordinate either to Executive or to Legislature ... He has constitutional function to discharge.' In context of these observations alone, it should be taken that High Court Judge had no employer but such observation should not be stretched too far to construe that he is independent person liked sovereign and salary received by him is not salary. It should not be forgotten that no constitutional functionay is above Constitution. Constitution lays down qualifications of person for appointment of Judge of High Court and authority for such appointment. Judge of High Court is bound by Constitution and laws. He cannot act according to his own wishes and whims. He has to take oath that he shall uphold sovereignty and integrity of India and that shall perform duties of his office duly and faithfully and to best of his ability and knowledge and he shall uphold Constitution and laws. His tenure of service is also determined by Constitution. It is not that one appointed as Judge of High Court he cannot be removed from his office. There is procedure prescribed for his removal form office. Like other Government servants, he is entitled to pension and other benefits. True it is that, as observed by Hon'ble Mr. Justice Keiashna Iyer, 'he cannot be equated with other services'; but thereby it cannot be said that salary he revise is not salary for his employment. He is in fact servant of State and not of State Government or Central Government or President of India. This has been made quite clear by Hon'ble Mr. Justice Krishna Iyer in same paragraph 93 of his judgment in following words: "... To make Government-not State-the employer of superior Court Judge is to unwrite Constitution ...." (p. 2377) 7. observation of Hon'ble Mr. Justice Fazal Ali in case of Gopal Chandra Misra (supra) in paragraph 80 of judgment 'that there is no relationship between master and servant, employer and employee between t h e President and Judge of High Court', adverted to by learned counsel for assessee should not be construed to mean that High Court Judge is not employee at all. There is no quarrel with proposition that there is no relationship of master and servant, employer and employee between President and Judge of High Court but it cannot be said that Judge of High Court is not employee of State. Judge of High Court is hang dignitary and constitutional functionary and, therefore, word 'servant' is seldom used for him but thereby reality cannot be denied. Hon'ble Mr. Justice Fazal Ali in same paragraph 80 of judgment reproduced observation of Mr. Justice Krishna Iyer which included sentence-'to make Government-not State-the employer of superior Court Judge is to unwrite Constitution.' Strees is thereby given that State and not Government is employer of Judge of High Court. 8. Coming to case of Hrargovind Pant (supra) relied upon by learned counselffor assessee, we find that it is equally without help to assessee. It also lays down that office of Governor of State is not employment under Government of India. Hon'ble High Court was concerned with only question as to whether appointment of Shri Raghukul who was memebr of Rajasthan Public Service Commission, as Governor of Rajasthan was valid, since, according to article 319 of Constitution, on ceasing to hold office, memebr of State Public Service Commission is not eligible for any other employmnent either under Government of India or under Government of State. Hon'ble High Court held in that case that appointment of Shri Raghukul as Governor of State of Rajasthan was not invalid, sice ti was not employnment under Government of India. But thereby it should not be taken that Governor was not in employment of Union of India. 9. Furthermore, section 23D of Supreme Court Judges (Conditions of Service) Act and sectioin 22D of High Court Judges (Conditions of Sergvice) Act make it abundantly clear that salary of High Court Judge is his income chargeable under head 'Salaries' under section 15 of Income-tax Act. 10. general tests to be applied for finding out if there is employer and employee relationship are these: (a) master's power of selection of servant; (b) payment of wages or other remuneration; (c) master's right to control method of doing work; and (d) master's right of suspension or dismissal, (vide judgment of Hon'ble Supreme Court in case of Piyarelal Adishwar Lal v. CIT [1960] 40 ITR 17. All these tests hold good in case of employment of Judge of High Court. Constitution begins with preamble, 'We, People of India, having solemnly resolved to constitute India into Sovereign, Socialist, Secular, Democratic Republic'. It mention qualification of person to be appointed as judge of High Court and power to appoint has bene invested with President. terms and conditions of service, namely, his tenure of appoiintement, salary, pension and othe benefits have also been defined. Constitution has laid down reles for discharge of his duties and so also procedure has been laid down for removal from his office. Thus, he is obviously employee of Statte and in no secse of term he can claim as self- employee of Statte and in no secse of term he can claim as self- employed without exercise of any control over his work. Because of nature of his work he has been made independent and supreme within sphere of his duties insamuch as that he is paid out of consolidated fund without any voting but at same time he has to take oath that he shall uphold Constitutoon laws. 11. We do not agree with contention of learned counsel for assesse that word 'salary' appearing in aritcle 221 and in Second Schedule is used in popular sense and in fact remuneration paid to Judge of High Court is not salary. 12. We, therfore, hold that income of assessee should be assessed as non-resident and it is deemed to accrue in India within meaning of section 9. 13. In result, appeal is dismissed. *** JUSTICE ANANDAMOY BHATTACHARJEE v. INCOME TAX OFFICER