Section 139AA of the Income Tax Act, which makes Aadhaar mandatory for filing Income Tax Returns, has been challenged before the Supreme Court.
Two different petitions, challenging Section 139AA, will be heard today by the Supreme Court Bench of Justices AK Sikri and Ashok Bhushan.
One of the petitions has been filed by SG Vombatkere, a retired Indian Army Officer and Bezwada Wilson, founder and convenor of Safai Karmachari Andolan. The petition has been drawn by advocate Udayaditya Banerjee and filed by M/s. KJ John & Co. Senior Advocate Shyam Divan will appear for Vombatakre and Wilson.
Another petition has been filed by CPI leader Binoy Viswam. The petition has been drawn and filed by advocate Sriram P. Senior Advocate Arvind Datar will appear for Viswam.
Section 139AA was inserted in the Income Tax Act by the Finance Act, 2017. By the impugned provision, Aadhaar has been made mandatory for obtaining PAN, continued validity of PAN and for filing of return under the Income Tax Act.
One of the major grounds raised by Vombatkere and Wilson in their petition is that the impugned provision violates Article 14, since it creates an unintelligible differentia without any nexus to the object sought to be achieved by the Income Tax Act.
“The impugned provision violates Article 14 of the Constitution of India and is palpably arbitrary and illegal as it creates an artificial impermissible classification between persons who have parted with bio-metrics and those who have not parted with bio-metrics for the purpose of payment and collection of income tax”
The petitioners have contended that the object of Income Tax Act is to levy tax on the income earned by a person and to provide a mechanism for payment and collection of the same. According to them, parting with biometrics has no rational nexus to the said object and creates a wrongful classification amongst a homogeneous group of tax payers.
Another ground raised by the petitioners is that the provision coerces individuals to part with personal information.
“An individual’s biometrics, iris scan are the property and entitlement of that individual and the State cannot coerce an individual to part with biometrics under the threat of penal consequences. The Constitution of India is not a charter for police state…..”
Besides, the petitioners have also contended that the provision is contrary to the concept of “limited government” and can create an environment, which can be used for surveillance.
Importantly, the two petitioners have also questioned the legislative competence of the Union government to pass the impugned provision contending that no entry in List I or List III of the Constitution empower the Central government to pass such an impugned provision.
Binoy Viswam has also made submissions relating to violation of right to privacy, which he has contended is a facet of right to life under Article 21. Besides, Viswam has placed reliance on the Aadhaar Act itself, which does not say that obtaining Aadhaar is mandatory. He has pointed out the discrepancy in making Aadhaar mandatory for filing IT returns although obtaining Aadhaar is not mandatory under the Aadhaar Act.
“BECAUSE S. 139AA of the Income Tax Act, 1961 which makes enrollment for Aadhaar mandatory, without making appropriate amendments to the Aadhar Act which till date does not prescribe that the enrolment is mandatory, in a Finance Bill was with the intention of avoiding the Rajya Sabha where the ruling party does not have a majority. It is submitted that the said amendment is completely contrary to Article 110 of the Constitution of India which defines a money bill. It is submitted the decision of the Speaker in this regard although is deemed to final as per Article 122 of the Constitution, this Hon’ble Court has held that the same can be made subject to judicial review in cases of gross illegality or violations of the provisions of the Constitution.”
The three petitioners have sought quashing of Section 139AA. The case is listed today for hearing as item 10 in court 8.
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