Dubagunta Nagasaila, v. Union Of India,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

( Special Original Jurisdiction ) Tuesday, the Twenty Fourth day of July Two Thousand Eighteen PRESENT THE HON`BLE MR JUSTICE M.M.SUNDRESH and THE HON`BLE MR.JUSTICE N.ANAND VENKATESH W.M.P.Nos.21954 to 21959 and 22005 to 22007 of 2018 in W.P.Nos.18618 to 18623 and 18671 to 18673 of 2018 DUBAGUNTA NAGASAILA ... PETITIONER in WMP No.21954 of 2018 SURESH VEERARAGHAVAN ... PETITIONER in WMP No.21955 of 2018 ANANTHANARAYANAN KOOTALA ... PETITIONER in WMP No.21956 of 2018 SUBRAMANIAN T.MOHAN ... PETITIONER in WMP No.21957 of 2018 S.DEVIKA ... PETITIONER in WMP No.21958 of 2018 VISHNUPRIYA ... PETITIONER in WMP No.21959 of 2018 NITYANAND JAYARAMAN ... PETITIONER in WMP No.22005 of 2018 DR.KAREN COELHO ... PETITIONER in WMP No.22006 of 2018 K.SUDHIR ... PETITIONER in WMP No.22007 of 2018 Vs 1 UNION OF INDIA ... RESPONDENT in WMP No.

21954 of 2018 MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) NO.

1 UNION OF INDIA ... RESPONDENT in WMP No.21955 of 2018 MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) NO. 137 NORTH BLOCK NEW DELHI 110 001 REP BY ITS SECRETARY (REVENUE) 2 CENTRAL BOARD OF DIRECT TAXES THROUGH CHAIRMAN MINISTRY OF FINANCE NORTH BLOCK NEW DELHI 110 001 3 INCOME TAX OFFICER NON-CORPORATE RANGE 14 (3) CHENNAI WANAPARTHY BLOCK 2ND FLOOR 121 MG ROAD NUNGAMBAKKAM CHENNAI 34 1 UNION OF INDIA ... RESPONDENT in WMP No.21956 of 2018 MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) NO. 137 NORTH BLOCK NEW DELHI 110 001 REP BY ITS SECRETARY (REVENUE) 2 CENTRAL BOARD OF DIRECT TAXES THROUGH CHAIRMAN MINISTRY OF FINANCE NORTH BLOCK NEW DELHI 110 001 3 INCOME TAX OFFICER NON-CORPORATE WARD 16 (1) CHENNAI WANAPARTHY BLOCK 5TH FLOOR 121 MG ROAD NUNGAMBAKKAM CHENNAI 34.

1 UNION OF INDIA ... RESPONDENT in WMP No.21957 of 2018 MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) NO.137 NORTH BLOCK NEW DELHI-110 001 REP.

BY ITS SECRETARY (REVENUE).

2 CENTRAL BOARD OF DIRECT TAXES THROUGH CHAIRMAN MINISTRY OF FINANCE NORTH BLOCK NEW DELHI-110 01.

3 INCOME TAX OFFICER NON-CORPORATE RANGE 15(3) CHENNAI WANAPARTHY BLOCK 2ND FLOOR 121 M.G.ROAD NUNGAMBAKKAM CHENNAI - 600034 1 UNION OF INDIA ... RESPONDENT in WMP No.21958 of 2018 MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) NO.137 NORTH BLOCK NEW DELHI-110 001 REP.

BY ITS SECRETARY (REVENUE).

2 CENTRAL BOARD OF DIRECT TAXES THROUGH CHAIRMAN MINISTRY OF FINANCE NORTH BLOCK NEW DELHI-110 01.

3 INCOME TAX OFFICER NON-CORPORATE RANGE 15(4) CHENNAI WANAPARTHY BLOCK 2ND FLOOR 121 M.G.ROAD NUNGAMBAKKAM CHENNAI - 600034 1 UNION OF INDIA ... RESPONDENT in WMP No.21959 of 2018 MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) NO.137 NORTH BLOCK NEW DELHI-110 001 REP.

BY ITS SECRETARY (REVENUE).

2 CENTRAL BOARD OF DIRECT TAXES THROUGH CHAIRMAN MINISTRY OF FINANCE NORTH BLOCK NEW DELHI-110 01.

3 INCOME TAX OFFICER NON-CORPORATE WARD 18(5) CHENNAI 1 UNION OF INDIA ... RESPONDENT in WMP No.22005 of 2018 MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) NO.137 NORTH BLOCK NEW DELHI-110 001 REP.

BY ITS SECRETARY (REVENUE).

2 CENTRAL BOARD OF DIRECT TAXES THROUGH CHAIRMAN MINISTRY OF FINANCE NORTH BLOCK NEW DELHI-110 01.

3 INCOME TAX OFFICER NON-CORPORATE WARD 13(3) CHENNAI.

1 UNION OF INDIA ... RESPONDENT in WMP No.22006 of 2018 MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) NO.137 NORTH BLOCK NEW DELHI-110 001 REP.

BY ITS SECRETARY (REVENUE).

2 CENTRAL BOARD OF DIRECT TAXES THROUGH CHAIRMAN MINISTRY OF FINANCE NORTH BLOCK NEW DELHI-110 01.

3 INCOME TAX OFFICER NON-CORPORATE WARD 16(4) CHENNAI.

1 UNION OF INDIA ... RESPONDENT in WMP No.22007 of 2018 MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) NO.137 NORTH BLOCK NEW DELHI-110 001 REP.

BY ITS SECRETARY (REVENUE).

2 CENTRAL BOARD OF DIRECT TAXES THROUGH CHAIRMAN MINISTRY OF FINANCE NORTH BLOCK NEW DELHI-110 01.

3 INCOME TAX OFFICER NON-CORPORATE WARD 5(1) CHENNAI.

Petitions praying that in these circumstances stated therein and in the respective affidavits filed therewith the High Court will be pleased to WMP No.21954 of 2018 (1)to grant interim direction directing the third respondent to allow the petitioner to file his income tax return for the assessment year 2018-19 either manually or through the e-filing facility, without quoting his Aadhaar number or Aadhaar Enrolment ID, WMP No.21955 of 2018 (2)to grant interim direction directing the third respondent to allow the petitioner to file his income tax return for the assessment year 2018-19 either manually or through the e-filing facility, without quoting his Aadhaar number or Aadhaar Enrolment ID, WMP No.

21956 of 2018 (3)to grant interim direction directing the third respondent to allow the petitioner to file his income tax return for the assessment year 2018-19 either manually or through the e-filing facility, without quoting his Aadhaar number or Aadhaar Enrolment ID, WMP No.21957 of 2018 (4)To grant interim direction directing the Third Respondent to allow the petitioner to file his income-tax return for the assessment year 2018-19 either manually or through the e-filing facility, without quoting his Aadhaar number or Aadhaar Enrolment ID, WMP No.

ID, WMP No.21959 of 2018 (6)To grant interim direction directing the Third Respondent to allow the petitioner to file his income-tax return for the assessment year 2018-19 either manually or through the e-filing facility, without quoting his Aadhaar number or Aadhaar Enrolment ID, WMP No.22005 of 2018 (7)To grant interim direction directing the Third Respondent to allow the petitioner to file his income-tax return for the assessment year 2018-19 either manually or through the e-filing facility, without quoting his Aadhaar number or Aadhaar Enrolment ID, WMP No.22006 of 2018 (8)To grant interim direction directing the Third Respondent to allow the petitioner to file his income-tax return for the assessment year 2018-19 either manually or through the e-filing facility, without quoting his Aadhaar number or Aadhaar Enrolment ID, WMP No.

22007 of 2018 (9)To grant interim direction directing the Third Respondent to allow the petitioner to file his income-tax return for the assessment year 2018-19 either manually or through the e-filing facility, without quoting his Aadhaar number or Aadhaar Enrolment ID, respectively pending WP.Nos.18618 to 18623 & 18671 to 18673 of 2018.

Order :These petitions coming on for orders upon perusing the petitions and the respective affidavits filed in support thereof and upon hearing the arguments of MR.ARAVIND P.DATTAR SENIOR COUNSEL for M/S.RAGUL UNNIKRISHNAN, Advocate for the petitioner and of MR.G.RAJAGOPAL ASG Assisted by ((1) MR.J.NARYANASAMY, (2)MS.HEMA MURALIKRISHNAN , (3)MR.A.P.SRINIVAS,

(4) MR.ANR.JAYAPRATHAP, (5)MR.D.NAVEEN DURAIBABU and (6) MR.RAJKUMAR JABAKH on behalf of the Respondents the court made the following order:- (Order of the Court was made by M.M.SUNDRESH, J.) All these writ petitions have been filed seeking a common relief of issuance of a writ of mandamus directing the third respondent to allow the petitioners to file their income tax return for the assessment year 2018-2019 either manually or through the e-filing facility without quoting their Aadhaar number or Aadhaar Enrollment ID.

2. The issue has arisen with the newly introduced Section 139AA of the Income Tax Act, 1961, which makes the linking between Aadhar and Pan Card mandatory. The Apex Court in BINOY VISWAM VS.

UNION OF INDIA ((2017) 396 ITR 66) was pleased to uphold the validity of the aforesaid provision. Prior to that, the Constitutional Bench in JUSTICE K.S.PUTTASWAMY (RETD.) AND ANOTHER VS. UNION OF INDIA AND OTHERS (WRIT PETITION (CIVIL) No.494 of 2012, pending adjudication of the larger issue, was pleased to pass an interim order on 15.10.2015, which is as under. "We will also make it clear that the Aadhaar Card Scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other."

3. By a subsequent decision, the Apex Court in SHAYARA BANO VS. UNION OF INDIA AND OTHERS ((2017) 9 Supreme Court Cases 1) while doubting the decision rendered in BINOY VISWAM VS. UNION OF INDIA ((2017) 396 ITR 66) has decided to consider the issue afresh. It is apposite to refer the following passage. "97.After referring to the submissions of counsel, and several judgments on the discrimination aspect of Article 14, this Court held: (Subramanian Swamy case, SCC pp.721-22, paras 48-49) "48. In E.P. Royappa [E.P.Royappa v. State of T.N., (1974) 4 SCC 3: 1974 SCC (L&S) 165], it has been held by this Court that the basic principle which informs both Articles 14 and 16 are equality and inhibition against discrimination. This Court observed in para 85 as under: (SCC p. 38) "85.

From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."

Court's approach

49. Where there is challenge to the constitutional validity of a law enacted by the legislature, the Court must keep in view that there is always a presumption of constitutionality of an enactment, and a clear transgression of constitutional principles must be shown. The fundamental nature and importance of the legislative process needs to be recognised by the Court and due regard and deference must be accorded to the legislative

process. Where the legislation is sought to be challenged as being unconstitutional and violative of Article 14 of the Constitution, the Court must remind itself to the principles relating to the applicability of Article 14 in relation to invalidation of legislation. The two dimensions of Article 14 in its application to legislation and rendering legislation invalid are now well recognised and these are: (i) discrimination, based on an impermissible or invalid classification, and (ii) excessive delegation of powers; conferment of uncanalised and unguided powers on the executive, whether in the form of delegated legislation or by way of conferment of authority to pass administrative orders-if such conferment is without any guidance, control or checks, it is violative of Article 14 of the Constitution.

The Court also needs to be mindful that a legislation does not become unconstitutional merely because there is another view or because another method may be considered to be as good or even more effective, like any issue of social, or even economic policy. It is well settled that the courts do not substitute their views on what the policy is."

98. Since the Court ultimately struck down Section 6-A on the ground that it was discriminatory, it became unnecessary to pronounce on one of the questions referred to it, namely, as to whether arbitrariness could be a ground for invalidating legislation under Article 14. Indeed the Court said as much in paragraph 98 of the judgment as under (at page 740):

"98.Having considered the impugned provision contained in Section 6-A and for the reasons indicated above, we do not think that it is necessary to consider the other objections challenging the impugned provision in the context of Article 14."

99. However, in State of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453 at paragraph 22, in State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312 at paragraphs 17 to 19, in Rajbala v. State of Haryana & Ors., (2016) 2 SCC 445 at paragraphs 53 to 65 and Binoy Viswam v. Union of India, (2017) 7 SCC 59 at paragraphs 80 to 82, McDowell (supra) was read as being an absolute bar to the use of "arbitrariness" as a tool to strike down legislation under Article 14. As has been noted by us earlier in this judgment, Mcdowell (supra) itself is per incuriam, not having noticed several judgments of Benches of equal or higher strength, its reasoning even otherwise being flawed. The judgments, following McDowell are,

therefore, no longer good law. "

4. Unfortunately, these developments have not been brought before the learned single Judge at the time of passing orders in W.P.Nos.28181 of 2017 dated 06.11.2017, while dealing with the same issue raised before us.

5. By taking note of the judgements referred supra, numerous orders have been passed viz., atleast five High Courts. Orders have also been passed after hearing both sides. It is appropriate to place on record one of the decisions rendered by Bombay High Court in W.P.No.1709 of 2018 dated 29.06.2018. "11. Therefore at the interim stage we pass the following interim order:

ORDER

A) The respondents-State is directed to accept the return of income for the Assessment Year 2018-19 by the petitioners herein if uploaded on or before 30th June, 2018 without Aadhar number, Aadhar Enrollment or any linkage with the PAN details. This is without prejudice to the rights and contentions of the state that such Returns of Income are contrary to the provisions of the Act.

b) In case the system does not accept the Returns of Income filed by the petitioners in the absence of it quoting the Aadhar number or Aadhar Enrollment number or Linking with PAN details, then in that event the petitioners herein are at liberty to file their return of income in physical form with the jurisdictional Assessing Officer on or before 2nd July, 2018, who would accept the same. This has become necessary as we are informed that the Income Tax Office is closed on 30th June, 2018 and 1st July, 2018.

c) The directions made in this order are restricted only to the petitioners before us. This is an interim order, without prejudice to the rights and contentions of the parties.

d) Petition to be on board on 17th July, 2018 at 3.00p.m. Parties to act on copy of this order duly authenticated by the Associate of this Court."

6. The first respondent also passed an order under Section 118 of the Income Tax Act, 1961 on 30.06.2018 by extending the time for linking PAN with Aadhar till 31.03.2019. The aforesaid order is reproduced hereunder.

"Vide its orders dated 31.07.17, 31.08.17, 08.12.17 & 27.03.18, in file of even number, CBDT had allowed time till 30th June, 2018 to link PAN with Aadhaar while filing the tax-returns. Upon considering of the matter, the CBDT further extends the time for linking PAN with Aadhaar till 31st March, 2019."

7. Under the aforesaid circumstances, the learned Senior Counsel appearing for the petitioners would submit that orders have been reserved by the Apex Court on the larger issue including the validity of Section 139AA of the Income Tax Act, 1961, which has been re-argued. Unfortunately, despite the order dated 30.06.2018 referred supra, there is no change made in the software, resulting in inability of assistance to upload their tax return electronically without the Aadhar Number, or its Enrollment ID number as the case may be. Consequently, they are also not allowed to file the returns manually. Therefore, to get over the aforesaid peculiar situation, the petitioners may be permitted to file their income tax returns manually.

8. The learned Assistant Solicitor General appearing for the respondents would submit that inasmuch as the validity of Section 139AA of the Income Tax Act, 1961, has already been upheld by the Apex Court in BINOY VISWAM VS. UNION OF INDIA ((2017) 396 ITR 66), no writ of mandamus would lie against the statute.

9. Heard the learned Senior Counsel appearing for the petitioners and the learned Assistant Solicitor General appearing for the respondents.

10. We find force in the submissions made by the learned Senior Counsel for the petitioners. There is a subsequent decision rendered by the Apex Court after the earlier one in BINOY VISWAM VS. UNION OF INDIA ((2017) 396 ITR 66). That is the reason why, subsequent orders have been passed by five different High Courts. This has been taken note of by the first respondent itself resulting in the order dated 30.06.2018 having been passed. Admittedly, orders have been reserved by the Apex Court. The interim order passed on 15.10.2015 referred supra, stands as of now. Further more, no prejudice would be caused to the respondents by permitting the petitioners to file income-tax returns for the assessment year 2018-2019 manually. After all it is nothing but a temporary arrangement. Any order passed by this Court would ofcourse be subject to the decision of the Apex Court on the larger issue. In such view of the matter, we are inclined to pass the following order.

(i) All the petitioners are permitted to file their respective Income-tax Returns for the assessment

year 2018-2019 manually.

(ii) These returns will have to be filed on or before 31.07.2018, which is the last date for filing the returns. As and when the petitioners file their income tax returns, the Assessing Officer concerned shall deal with them as in the other cases, which have been done electronically. (iii) These orders are passed subject to the orders to be passed by the Apex Court.

(iv) In the event of the Apex Court upholding the validity of Section 139 AA of the Income Tax Act, 1961, the petitioners shall file their returns once again by linking their Aadhar number or Aadhar Enrollment ID with the PAN Card.

(v) These directions are to be applied only to the petitioners before us alone.

Post the matters for further hearing after the decision is rendered by the Apex Court on the larger issue. -sd/- 24/07/2018 / TRUE COPY / Sub Assistant Registrar ( Statistics / C.S. ) High Court, Madras - 600 104.

TO 1 THE SECRETARY(REVENUE) THE UNION OF INDIA, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE), NO. 137, NORTH BLOCK, NEW DELHI 110 001.

2 THE CHAIRMAN CENTRAL BOARD OF DIRECT TAXES, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI 110 001 3 INCOME TAX OFFICER, NON-CORPORATE RANGE 15 (3), CHENNAI WANAPARTHY BLOCK, 2ND FLOOR, 121 MG ROAD, NUNGAMBAKKAM, CHENNAI 34

INCOME TAX OFFICER NON-CORPORATE WARD 16 (1) CHENNAI WANAPARTHY BLOCK 5TH FLOOR 121 MG ROAD NUNGAMBAKKAM CHENNAI 34 THE INCOME TAX OFFICER NON-CORPORATE WARD 18(5) CHENNAI THE INCOME TAX OFFICER NON-CORPORATE WARD 13(3) CHENNAI.

7 THE INCOME TAX OFFICER NON-CORPORATE WARD 16(4) CHENNAI.

8 THE INCOME TAX OFFICER NON-CORPORATE WARD 5(1) CHENNAI.

+10 C.C. to M/S.RAGUL UNNIKRISHNAN Advocate SR.NO. 8732 C.C. to MR.UNNIKRISHNAN Advocate SR.NO. 8792 Order in W.M.P.Nos.21954 to 21959 and 22005 to 22007 of 2018 in W.P.Nos.18618 to 18623 and 18671 to 18673 of 2018 Date :24/07/2018 From 26.2.2001 the Registry is issuing certified copies of the Interim Orders in this format VS 25.07.2018 (I.T)