C/SCA/17329/2017 ORDER IN HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 17329 of 2017 BANDISH SAURABH SOPARKAR....Petitioner(s) Versus UNION OF INDIA & 2....Respondent(s) Appearance: MR S N SOPARKAR, SR ADV WITH MRS SWATI SOPARKAR, ADVOCATE for Petitioner(s) No. 1 MR BHATT FOR MRS MAUNA M BHATT, ADVOCATE for Respondent(s) No. 3 NOTICE NOT RECD BACK for Respondent(s) No. 1 - 2 CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE BIREN VAISHNAV Date : 12/10/2017 ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Affidavit in reply filed by respondent No.3 is taken on record. petitioner has challenged validity of section 139AA of Income Tax Act, 1961, on ground that same violates Article 21 of Constitution. petitioner has also prayed for direction to respondent Nos. 2 and 3 - Income Tax Authorities to accept petitioner's return of income for assessment year 2017-18. Case of petitioner is that he does not possess Aadhar card. Whereas under section 139AA of Act, filing of return of income with Permanent Account Number ['PAN' for short] which is neither linked with Page 1 of 4 HC-NIC Page 1 of 4 Created On Fri Jan 05 11:55:55 IST 2018 C/SCA/17329/2017 ORDER Aadhar card nor where assessee has applied for Aadhar and such application is pending, would be invalid. Counsel for petitioner pointed out that online income tax filing system of department would not accept any such return. 2. We have heard learned counsel for parties. issues would require further consideration. For present, we may record that Supreme Court in case of Binoy Viswam vs Union of India and ors reported in (2017) 7 SCC 59 had occasion to test validity of section 139AA of Act minus issue of right to privacy being fundamental right since at time such issue was pending before larger Bench of Supreme Court. Court considered issue and upheld validity of said section. However, later on, in case of Justice K.S.Puttaswamy (Retd.) & anr vs. Union of India and ors in Writ Petition (Civil) No. 494 of 2012, Constitution Bench of Supreme Court has held that right to privacy is fundamental right and is part of Article 21 of Constitution. In this context, question of validity of Aadhar card and various directives issued by Government making it compulsory for range of activities and benefits is at large before Supreme Court. 3. situation that has therefore arisen is this wise. On one hand, minus angle of right to privacy, Supreme Court in case of Binoy Viswam (supra) has upheld validity of section 139AA of Act. question of validity of section 139AA of Page 2 of 4 HC-NIC Page 2 of 4 Created On Fri Jan 05 11:55:55 IST 2018 C/SCA/17329/2017 ORDER Act on anvil of breach of right to privacy would now have to be tested. question whether Aadhar card regime breaches such right is at large before Supreme Court. In meantime, last date for filing return for petitioner- assessee would be 31.10.2017. If, by that time, no return is filed, petitioner would expose himself to certain penal liabilities. On other hand, if department is directed to accept petitioner's return without any further obligation on its part, no prejudice would be caused to respondents. 4. In result, by way of interim directions, petitioner is allowed to file return of income for assessment year 2017-18 before department in hard copy. department may accept same without petitioner linking his PAN card with Aadhar card or having to make declaration that he has applied for one. It would not be obligatory for department to process such return. In other words, assessment on such return shall stand stayed. It is clarified that mere filing of return would not create any equity in favour of petitioner and this arrangement would be subject to further or final order that may be passed in this petition. S.O. to 22.11.2017. (AKIL KURESHI, J.) Page 3 of 4 HC-NIC Page 3 of 4 Created On Fri Jan 05 11:55:55 IST 2018 C/SCA/17329/2017 ORDER (BIREN VAISHNAV, J.) Jyoti Page 4 of 4 HC-NIC Page 4 of 4 Created On Fri Jan 05 11:55:55 IST 2018 Bandish Saurabh Soparkar v. Union of India & 2