Linking of PAN card with AADHAR CARD – why litigation -unnecessary dispute must be avoided – in fact PAN of non-individual assessee should be linked with AADHAR of specified or designated persons of other non-individual assessee

[CA DEV KUMAR KOTHARI]

Links and references:

Binoy Viswam Versus Union of India And Ors. 2017 (6) TMI 478 - SUPREME COURT OF INDIA

Sections 139A, 139AA,   of the Income-tax Act,1961.

Article 21 of the Constitution

AADHAR:

Aadhar card is an important and safest identity proof of any individual because it also includes finger prints of the concerned person. Therefore, if an AADHAR card has been issued to a person , it cannot be issued again, because data base would reveal that a card has been issued with the finger prints now placed for a new card.

Linking of AADHAR with PAN can therefore be very important for genuineness of the PAN card holder vis a vis natural person for whom AADHAR card is issued.

AADHRA can be considered as best proof so far identity is concerned of an individual. However it may not be fool proof in relation to address. If there is a change in address but it has not been changed in AADHAR, the AADHAR will continue with old address.

Similarly if someone has obtained AADHAR card with a wrong address, the same will continue, unless corrected by efforts of card holder.

In fact author knows some persons, in his neighbourhood, who have shifted to other place long ago and are not living in the neighbourhood of author, but have obtained AADHAR based on address at which they are not living. Old AADHAR card issued with address (where they do not live) are still continuing.

Therefore, there should be a system and procedure by which one can complain about address being wrongly used by AADHAR card holder for some ulterior purposes like keeping disputes relating to property, tenancy, etc.

AADHAR authority was requested to inform procedure to complain in this regard, but they have not been able to give a proper reply and matter is pending since 06.10.2016 the last reply received from authority is as follows:

Dear Resident,

As checked from the system, your case number 20170218004728 has been assigned to the concerned department. Once it is resolved you will be intimated by an email on the same.

You may also check the status after few days.

We appreciate your patience and thank you for contacting us.

Jai Hind

Aadhaar Sampark Kendra
UNIQUE IDENTIFICATION AUTHORITY OF INDIA (UIDAI)  

In another case on the AADHAR card issued to a lady it is found that instead of D/O abbreviation mentioned is W/O before name of her father and in address also some superficial  words have been added which were not in the application. This causes wrong AADHAR  card.

For rectification help was sought by writing an email but no reply has been received.

Therefore, we find that there are some shortcomings in issue of AADHAR, which need to be resolved quickly.

These illustration shows that AADHAR card are being issued  in haste and without proper care and more care is required. Therefore, reasonable time must be allowed for application, verification and issue  of AADHAR and its linking with PAN.

  Why litigation on issue of linking PAN with AADHAR:

There should not be litigation on issue of linking of PAN with AADHAR. Making AADHAR compulsory for individuals cannot be called an unjust requirement.

In fact, linking of PAN with AADHAR of a designate representative of other assesses like HUF, firms, companies, societies etc. should also  be implemented. 

Issue of privacy:

There should not be an issue about privacy in relation to AADHAR card or PAN card. The information furnished in respect of both cards are not such which require privacy. For example there should not be objection about full description (that is name, male , female or other gender,  father’s name , mother’s name or  husband’s name , address and phone numbers). These information are provided in many documents in day to day life. Then why there is agitation for providing such information in AADHAR record.

 Article.21. Protection of life and personal liberty.-

No person shall be deprived of his life or personal liberty except according to procedure established by law.

In view of author there is no case of deprivation of life or personal liberty for the collection and maintaining data base for AADHAR. In fact all details given in application for AADHAR can be made public and there should not be grievance. There is no case of violation of Article 21 merely because some information is collected and preserved in data base which can be used for identification purposes.

Linking of PAN with AADHAR:

Assessee having PAN and AADHAR can easily link  PAN with AADHAR  and even vice versa. Incorporation of PAN in  AADHAR data base and AADHAR card can also be an important and effective step.

Supreme Court’s Judgment:

Parliament is fully competent to enact Section 139AA of the Act and its authority to make this law was not diluted by the orders of the Supreme Court.

Section 139AA of the Act is not discriminatory nor it offends equality clause enshrined in Article 14 of the Constitution.
Section 139AA is also not violative of Article 19(1)(g) of the Constitution insofar as it mandates giving of Aadhaar enrollment number for applying PAN cards in the income tax returns or notified Aadhaar enrollment number to the designated authorities.

Further, proviso to sub-section (2) thereof has to be read down to mean that it would operate only prospective.

There is no conflict between the provisions of Aadhaar Act and Section 139AA of the Income-tax Act,1961 inasmuch as when interpreted harmoniously, they operate in distinct fields.

Those who have already enrolled themselves under Aadhaar scheme would comply with the requirement of sub-section (2) of Section 139AA of the Act. Those who still want to enrol are free to do so.

However, those assessees who are not Aadhaar card holders and do not comply with the provision of Section 139(2), their PAN cards be not treated as invalid for the time being. It is only to facilitate other transactions which are mentioned in Rule 114B of the Rules.

Regarding penal provisions one of the main objectives is to de-duplicate PAN cards and to bring a situation where one person is not having more than one PAN card or a person is not able to get PAN cards in assumed/fictitious names.

In such a scenario, if those persons who violate Section 139AA of the Act without any consequence, the provision shall be rendered toothless. It is the prerogative of the Legislature to make penal provisions for violation of any law made by it. In the instant case, requirement of giving Aadhaar enrolment number to the designated authority or stating this number in the income tax returns is directly connected with the issue of duplicate/fake PANs.