9911796707
TMI Blog2017 (11) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... t will be impossible to undertake any of the activities, though its requirement is aimed at curbing the tax evasion. It was further observed that if the PAN of a person is withdrawn or is nullified, it definitely amounts to placing restrictions on the right to do business. On a reading of the quoted paragraphs in the decision in the case of Binoy Viswam, [2017 (6) TMI 478 - SUPREME COURT OF INDIA] it would clearly show that the Hon'ble Supreme Court has not stayed the Proviso to Sub-Section (2) of Section 139AA of the Act and the partial stay would be applicable only to facilitate the other transactions, which are mentioned in Rule 114B of the Rules, which pertains to transactions, in relation to which, PAN is to be quoted in all documents for the purpose of Clause (C) of Sub-Section (5) of Section 139A of the Act. Therefore, to state that the partial stay granted by the Hon'ble Supreme Court would enure to the benefit of the petitioner even for filing income tax returns is a plea, which is not sustainable and is liable to be rejected. - W.P.No.28181 of 2017 & WMP.No.30311 of 2017 - - - Dated:- 6-11-2017 - T. S. Sivagnanam, J. For the Petitioner : Mr. V. Prashankiran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erala by filing W.P.(Civil).No.26033 of 2017 (D) wherein a similar relief was sought and the High Court of Kerala, by an order dated 04.8.2017, issued a direction to the third respondent therein to allow the petitioner therein to file income tax returns manually without insisting upon the aadhar number or card or enrollment number pending disposal of the writ petition. I am inclined to grant a similar relief, since today being the last date for filing the income tax returns. If the income tax returns are filed belatedly and if, ultimately, the matter is decided by the Constitution Bench of the Hon'ble Supreme Court against the petitioner, then she may be liable for payment of interest for belated payment of tax. The balance of convenience is in favour of the petitioner for the grant of appropriate interim order. 5. Accordingly, there will be an interim direction to the third respondent to permit the petitioner to file her income tax returns for the assessment year 2017-18 either manually or through appropriate e-filing facility without insisting for the aadhar number and/or enrollment ID. Notice to the respondents is accepted by Mr.Navin Durai Babu, learned Standing Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upheld and the limited stay, which was granted by the Hon'ble Supreme Court, was only to facilitate other transactions, which are mentioned in Rule 114B of the Income Tax Rules, 1962 (hereinafter called the Rules). Therefore, the Hon'ble Supreme Court having upheld the provisions of Section 139AA of the Act, the partial stay granted was only restricted to transactions mentioned in Rule 114B of the Rules and hence, the question of permitting the petitioner to file manual returns without furnishing the aadhaar number is not sustainable and that was not the judgment of the Hon'ble Supreme Court. 7. I have heard the learned counsel on either side and carefully perused the materials available on record. 8. The Hon'ble Supreme Court, in the case of Binoy Viswam, pointed out that on the one hand, the enrollment under aadhaar card is voluntary, however, for the purposes of the Act, Section 139AA makes it compulsory that for assessees to give aadhaar number, which means that in so far as income tax assessees are concerned, they have to necessarily enroll themselves under the Aadhaar Act and obtain aadhaar number, which will be their identification number, as that has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioners. Entire emphasis of the petitioners submissions, while addressing the arguments predicated on Article 19(1)(g) of the Constitution, is on the consequences that ensue in terms of proviso to Sub-Section (2) inasmuch as it is argued, as recorded above, that the consequences provided will have the effect of paralysing the right to carry on business/ profession. Therefore, thrust is on the second part of Section 139AA of the Act, which we proceed to deal with, now. 11. After rendering the above finding, it was observed that though the PAN is issued under the provisions of Section 139A of the Act, its function is not limited to giving this number in the income tax returns or for other acts to be performed under the Act as mentioned in Sub-Sections (5), (5A), (5B), 5(C), 5(D) and (6) of Section 139A. It was further observed that Rule 114B of the Rules mandates quoting of this PAN in various other documents pertaining to different kinds of transactions listed therein. It was also observed that for doing many activities of day to day nature, including in the course of business, the PAN is to be given and in the absence of a PAN, it will be impossible to undertake any of the act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. 125. Having said so, it becomes clear from the aforesaid discussion that those who are not PAN holders, while applying for PAN, they are required to give Aadhaar number. This is the stipulation of sub-section (1) of Section 139AA, which we have already upheld. At the same time, as far as existing PAN holders are concerned, since the impugned provisions are yet to be considered on the touchstone of Article 21 of the Constitution, including on the debate around Right to Privacy and human dignity, etc. as limbs of Article 21, we are of the opinion that till the aforesaid aspect of Article 21 is decided by the Constitution Bench a partial stay of the aforesaid proviso is necessary. 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. We are adopting this course of action for ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
