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Calcutta High Court · body

2001 DIGILAW 740 (CAL)

Chandrakant Kandlal Sheth v. Union of India

2001-12-11

AMITAVA LALA

body2001
JUDGMENT Amitava Lala, J. 1. This writ petition is made for not granting Permanent Account Number (PAN) under section 139A of the Income Tax Act, 1961 by the Income Tax Authority to the petitioner/assessee till this date inspite of making application as far back ort 28th September, 2000 under prescribed form being No. 49A under the Act. The grievance of the writ petitioner is that by reason of non-issuance of PAN and Card, he is not only suffering his business and/or occupation but also his status in the society. 2. Learned Counsel appearing for the Income Tax authority contended before this Court that the matter has to be scrutinised by the authority which consumes time. Hence, it is suggested the entire writ petition can be treated as representation so that the authority can hear out, scrutinise and issue PAN and Card. 3. On being heard I have come to know that there is no time limit for issuing PAN and Card. According to me, it is essential for the Income Tax Authority to issue PAN and Card within a prescribed period. It is definitely a right of an assessee to have a PAN and Card when he is a tax payer. Under such circumstances, delay in giving PAN is as good as defeat of such right of an assessee as provided under Articles 14 and 19(1) (g) of the Constitution of India. Section 139A of the Income Tax Act, for providing PAN to an assessee has been introduced by the Finance Act, 1995 with effect from 1st July, 1995. Sub-sections (1), (1A), (2) and (3) under section 139A of the Act provide to whom PAN will be given. Such sub-sections are as follows:- "(1) Every person,- (i) if his total income or the total income of any other person in respect of which he is assessable under this Act during any previous year exceeded the maximum amount which is not chargeable to income-tax; or (ii) carrying on any business or profession whose total sales, turnover or gross receipts are/or is likely to exceed (five lakh) rupees in any previous year; or (iii) who is required to furnish a return of income under sub-section (4A) of section 139 and who has not been allotted a Permanent Account Number shall, within such time, as may be prescribed, apply to the Assessing Officer for the allotment of a Permanent Account Number. (IA) Notwithstanding anything contained in a sub-section (1) the Central Government may, by notification in the Official Gazette, specify, any class or classes of persons by whom tax is payable under this Act or any tax or duty is payable under any other law for the time being in force including importers and exporters whether any tax is payable by them or not and such persons shall, within such time as mentioned in that notification, apply to the Assessing Officer for the allotment of a Permanent Account Number. (2) The Assessing Officer may also allot to any other person by whom tax is payable, a Permanent Account Number. (3) Any person, not falling under sub-section (1) or sub-section (2), may apply to the Assessing Officer for the allotment of a Permanent Account Number and thereupon, the Assessing Officer shall allot a Permanent Account Number to such person forthwith. Upon perusing the entire section I find only sub-section (3) is unchanged from the period of introduction in 1995. Such sub-section qualifying the earlier sub-sections to the extent of granting PAN and that too forthwith. This part of the section is so exhaustive that the citizens having minimum level of status in the society are covered by the same. Therefore if the intention of the legislature is to issue PAN forthwith why there should be delay? If the word forthwith is only related to sub-section (3) then what are the periods fixed for other categories? It took long 6 years form the introduction in 1995 to understand but neither the legislature gave a clear thought nor the administration suggested to provide rule, notification or circular to make it time bound. Now it is a mode of identification of citizen. Therefore, withholding such mark of identification is as good as violation of right of citizen. It is further surprising that neither in the Rule 114 of the Income Tax Rules nor under Form No. 49A any provision is made for such purpose. Therefore, it can not be avoided from saying that the authority is taking advantage of vagueness of legal sanction to suit their purpose. 4. Hence, I hold that there should be a time bound programme for the purpose of issuance of PAN and delivery of PAN Card. Therefore, it can not be avoided from saying that the authority is taking advantage of vagueness of legal sanction to suit their purpose. 4. Hence, I hold that there should be a time bound programme for the purpose of issuance of PAN and delivery of PAN Card. However, to avoid the anomalous situation whether the word forthwith is applicable in all the sub-sections under section 139A or not and upon making the observation the word forthwith has not been strictly followed by the authority I construe three (3) months period is maximum period for the same as the revenue earning authority normally follows period of one quarter of an year for the purpose of collection of tax, cess, fees, duties etc. The period so fixed hereunder is notwithstanding the period fixed under sub-section (3) of the section 139A of the Act. 5. Incidentally it has observed that sometimes many mistakes are being caused in giving PAN and Cards which can only be detected after issuance. Therefore, the desire of the court is accuracy should also be maintained by the authority in issuing PAN and Card within the prescribed period. 6. If the authority concern finds that PAN may not be given quickly, the will have to give the reason at the earliest to get it disposed of so that the maximum time period so fixed by the Court can not be frustrated. If one does so and allow the time to expire ii will definitely because of judicial scrutiny. 7. Therefore taking into totality of the matter, I dispose of the writ petition by treating as on day's list as "Motion Adjourned" by declaring that in case of issuance of PAN and Card the maximum period is three (3) months from the date of application. 8. There will be no order as to costs. 9. Since no affidavit has been used by the respondents allegations, if any, contained in the application are deemed to have not admitted by them. 10. Let xeroxed certified copy of this judgment be supplied to the parties by the department within seven days from the date of putting in requisition for drawing up and completion of the order as well as the certified copy thereof. 11. 10. Let xeroxed certified copy of this judgment be supplied to the parties by the department within seven days from the date of putting in requisition for drawing up and completion of the order as well as the certified copy thereof. 11. All parties are to act on a xeroxed signed copy minutes of the operative part of this judgment upon usual undertaking and as per the satisfaction of the officer of this Court in respect as above. Writ petition disposed of.