HIGH COURT OF GUJARAT
Bandish Saurabh Soparkar
Union of India
SPECIAL CIVIL APPLICATION NO. 17329 OF 2017
OCTOBER 12, 2017
S.N. Soparkar Sr. Adv. and Mrs. Swati Soparkar, Advocate for the Petitioner. M.R. Bhatt and Ms. Mauna M. Bhatt, Advocate for the Respondent.
Akil Kureshi,J. – Affidavit in reply filed by respondent No.3 is taken on record. The petitioner has challenged the validity of section 139AA of the Income Tax Act, 1961, on the ground that the same violates Article 21 of the Constitution. The petitioner has also prayed for a direction to respondent Nos. 2 and 3 – the Income Tax Authorities to accept the petitioner’s return of income for the assessment year 2017-18. Case of the petitioner is that he does not possess the Aadhar card. Whereas under section 139AA of the Act, the filing of return of income with Permanent Account Number [‘PAN’ for short] which is neither linked with an Aadhar card nor where the assessee has applied for Aadhar and such application is pending, would be invalid. Counsel for the petitioner pointed out that the online income tax filing system of the department would not accept any such return.
2. We have heard learned counsel for the parties. The issues would require further consideration. For the present, we may record that the Supreme Court in case of Binoy Viswam v. Union of India and ors reported in  7 SCC 59had the occasion to test the validity of section 139AA of the Act minus the issue of right to privacy being the fundamental right since at the time such issue was pending before the larger Bench of the Supreme Court. The Court considered the issue and upheld the validity of the said section. However, later on, in case of Justice K.S.Puttaswamy (Retd.) & anr v. Union of India and ors in Writ Petition (Civil) No. 494 of 2012, the Constitution Bench of the Supreme Court has held that right to privacy is a fundamental right and is part of Article 21 of the Constitution. In this context, the question of validity of Aadhar card and various directives issued by the Government making it compulsory for range of activities and benefits is at large before the Supreme Court.
3. The situation that has therefore arisen is this wise. On one hand, minus the angle of right to privacy, the Supreme Court in case of Binoy Viswam (supra) has upheld the validity of section 139AA of the Act. The question of validity of section 139AA of the Act on the anvil of breach of right to privacy would now have to be tested. The question whether Aadhar card regime breaches such a right is at large before the Supreme Court. In the meantime, the last date for filing return for the petitioner-assessee would be 31.10.2017. If, by that time, no return is filed, the petitioner would expose himself to certain penal liabilities. On the other hand, if the department is directed to accept the petitioner’s return without any further obligation on its part, no prejudice would be caused to the respondents.
4. In the result, by way of interim directions, the petitioner is allowed to file the return of income for the assessment year 2017-18 before the department in hard copy. The department may accept the same without the petitioner linking his PAN card with Aadhar card or having to make a declaration that he has applied for one. It would not be obligatory for the department to process such return. In other words, the assessment on such return shall stand stayed. It is clarified that mere filing of the return would not create any equity in favour of the petitioner and this arrangement would be subject to further or final order that may be passed in this petition.