Section 139AA of Income Tax Act, 1961 valid; Aadhaar-PAN linkage partially stayed till the Constitution Bench decision on Privacy Issue

Supreme Court: The bench of Dr. A.K. Sikri and Ashok Bhushan, JJ, upholding the validity of Section 139AA of Income Tax Act, 1961 that makes the linking of Aadhaar Card to the Permanent Account Number (PAN) mandatory, said that the provision is neither discriminatory nor it offends equality clause enshrined in Article 14 of the Constitution. The bench also said that 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.

Rejecting the contention that since enrollment under Aadhaar Act, 2016 is voluntary, it cannot be compulsory under the Income Tax Act, the Court said that in order to curb blackmoney, money laundering and tax evasion etc., if the Parliament chooses to make the provision mandatory under the Income Tax Act, the competence of the Parliament cannot be questioned on the ground that it is impermissible only because under Aadhaar Act, the provision is directory in nature. The Court also noticed that one of the main objectives of Aadhaar-PAN linkage 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 and it is the prerogative of the Legislature to make penal provisions for violation of any law made by it.

The Court, however, clarified that the validity of the provision is upheld subject to the decision of the Constitution bench where the issue relating to Right to Privacy and data leakage due to Aadhaar-PAN linkage is under consideration. The Court said that till the said issue is decided there will be a partial stay on the operation of proviso to sub-section (2) of Section 139AA of the Act, that says that the PAN allotted to the person will be deemed to be invalid in case of failure to intimate the Aadhaar number.

Stating that the proviso to Section 139AA(2) cannot be read retrospectively, the Court said that if failure to intimate the Aadhaar number renders PAN void ab initio with the deeming provision that the PAN allotted would be invalid as if the person had not applied for allotment of PAN would have rippling effect of unsettling settled rights of the parties. It has the effect of undoing all the acts done by a person on the basis of such a PAN. It may have even the effect of incurring other penal consequences under the Act for earlier period on the ground that there was no PAN registration by a particular assessee. The Court also said that the Parliament may consider as to whether there is a need to tone down the effect of the said proviso by limiting the consequences.

As per the order of the Court, 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. [Binoy Viswam v. Union of India, 2017 SCC OnLine SC 647, decided on 09.06.2017]

 

Join the discussion

Your email address will not be published. Required fields are marked *

1 + six =