Mandatory Aadhaar For Income Tax Returns, PAN Is Unconstitutional, Petitioners Argue
Aadhaar Act is voluntary and based on free consent, Senior Advocate Shyam Divan argues.
The government’s decision to make Aadhaar mandatory for filing income tax returns and obtaining a permanent account number (PAN) is unconstitutional, petitioners argued before the Supreme Court on Thursday.
The apex court resumed its hearing on a batch of petitions against Aadhaar-PAN linkage which started on Wednesday. Senior Advocate Shyam Divan, arguing for one of the petitioners, challenged the constitutionality of Section 139AA of the Income Tax Act, 1961 which was introduced by the Finance Act. The Aadhaar Act is voluntary and based on free consent, he said.
You cannot engraft into the income Tax Act – a voluntary scheme...proviso of the Section (139AA) must be struck down.Shyam Divan, Senior Advocate
According to this provision, every person eligible for Aadhaar shall on or after July 1, 2017 quote the number while applying for PAN and filing income tax returns. The failure to link the Aadhaar number will make the PAN card invalid and the person will be presumed to have never applied for one.
Those who do not submit Aadhaar details will have to pay higher tax deducted at source, Divan argued. Besides, without PAN, one cannot file returns and would get penalised, he explained.
A government directive cannot convert limited government to totalitarian government.Shyam Divan, Senior Advocate
On biometrics, he said, “as far as my biometrics are concerned, the State cannot take it without consent except for limited purposes.... The object of the statute (Aadhaar Act) is discriminatory because it creates an artificial class of assessees who are otherwise willing to pay taxes but refused to give their biometrics as conscientious objectors.”
“How can I be coerced into filling a (Aadhaar enrollment) form which says it is voluntary? This is absurdity,” he asked.
He further said that Aadhaar is only a right and not a duty. “It says if I don't fill Aadhaar, I may not get certain benefits. But it does not make it my duty to get an Aadhaar. Section 139AA is (a) colourable exercise of legislative power. It converts a right into a duty.”
Citing the example of a German minister whose fingerprints were copied and hacked, he said, “if my password is hacked I can replace it, how do I replace the biometrics?”
On Wednesday, the government had cited the problem of fake PAN to counter petitions against making Aadhaar mandatory for filing income tax returns and obtaining PAN. Senior Advocate Arvind Datar, representing another petitioner, had argued that as a result of this amendment, anyone who does not get an Aadhaar card will lose their PAN card as well. The amendment, he said, violates Articles 14 and 19(1)(g) of the Constitution.
The apex court will continue hearing Divan’s arguments on the matter on Friday and Attorney General Mukul Rohatgi will present his case on May 2.