Preeti Mohan Vs Union of India (Madras High Court)
The petitioner before this Court is a practicing advocate and she has filed this writ petition praying for a direction to the ITO to allow her to file income tax returns for the assessment year 2017-18 either manually or through e-filing facility without insisting for production of an aadhar number/card or enrollment identity as defined under Section 139AA of the Income Tax Act, 1961.
The petitioner’s case rests upon the decision of the Hon’ble Supreme Court in the case of Binoy Viswam Vs. Union of India [reported in (2017) 396 ITR 66] wherein the Hon’ble Supreme Court pointed out that since the impugned provision therein (Section 139AA of the said Act) is yet to be considered on the touchstone of Article 21 of The Constitution including on the debate around the right to privacy and human dignity, etc. as limbs of Article 21, till the aforesaid aspect of Article 21 is decided by the Constitution Bench, a partial stay of the aforesaid proviso is necessary. In respect of those assessees, who do not have an aadhar card and who do not comply with the provisions of Section 139AA(2), it was held that their PAN cards cannot be treated as invalid for the time being.
The matter has now been referred to a Constitution Bench, which is to hear the matter sometime by the end of November 2017. It is seen that in identical circumstances, one of the assessees by name Prasanth Sugathan moved the High Court of Kerala 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.
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.