IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION (Original Side)

Present: THE HON’BLE JUSTICE RAJARSHI BHARADWAJ R.V.W 22 of 2024 With G.A. 1 of 2024 Reserved on : 27.03.2025 Pronounced on: 03.04.2025 D.D. Infrastructure Private Limited ...Petitioner -Vs-

Union of India & Ors. ...Respondent Present:-

Mr. Pranit Bag Mr. Anuj Kumar Mishra Mr. Balaram Patra … … for the applicant Mr. Prithu Dudherai … … for the private respondents Rajarshi Bharadwaj, J:

1. The facts in a nutshell are that the writ petitioner, D.D. Infrastructure Private Limited, filed W.P.O. No. 271 of 2024 before the Hon’ble High Court, challenging the assessment order dated March 28, 2023, issued under Section 147 read with Sections 144 and 144B of the Income Tax Act, 1961, along with consequential penalty proceedings initiated against the petitioner.

2. The petitioner contended that it was not intimated about the initiation of reassessment proceedings or given an opportunity to present its case. The first intimation regarding the said proceedings was received only on February 27, 2024, indicating a serious violation of the principles of natural justice.

3. The Hon’ble Justice Md. Nizamuddin, vide order dated April 9, 2024, dismissed the writ petition, holding that the assessment order is an appealable order under the statute and that the writ court should not interfere.

4. The petitioner subsequently filed a review application against the said order, asserting errors apparent on the face of the record, primarily on the grounds that the order incorrectly recorded that the Revenue was represented during the hearing, whereas no such representation was made. The petitioner’s counsel was not afforded an opportunity of being heard. The Hon’ble Court failed to appreciate the violation of natural justice and proceeded to dispose of the writ petition without considering its merits.

5. The Learned Counsel appearing for the petitioner submits that it was never served with any notice or intimation regarding the reassessment proceedings and the first communication regarding the assessment was received only on February 27, 2024. This failure to serve notice deprived the petitioner of its right to present objections, thereby violating the principles of natural justice.

6. The petitioner argues that the Advocate-on-Record was not given an opportunity to be heard. The impugned order mentions that "learned advocates appearing for the parties were heard," which is factually incorrect. The absence of a fair hearing further justifies the need for a review. It is specifically submitted that while the Advocate-on-Record was present, the Learned Counsel was not, and the Advocate-on-Record could not argue the matter effectively, leading to an unjust outcome.

7. Reliance is placed on the case of Kishori Prasad v. Union of India reported in 2008 SCC OnLine Cal 828, wherein the Hon’ble Calcutta High Court held:

“When allegation was made that no instruction was given to the learned lawyers not to press, then it was incumbent on the part of the learned Tribunal to enquire into that aspect also. Procedural provision has been made to render justice, not to render miscarriage of justice. So far as any other sufficient reason, mentioned in Order XLVII, Rule 1 also covers a case of this nature as litigant has engaged learned lawyers and he was completely and supremely rest assured that his case would be properly conducted before the learned Tribunal instead he finds later, contrary to his belief and trust, his case was not presented at all.”

The principle laid down in this case squarely applies to the present matter, where the absence of the Learned Counsel and the ineffective representation by the Advocate-on-Record led to a failure in properly presenting the petitioner’s case.

8. The Learned Single Judge dismissed the writ petition on the ground that the assessment order is an appealable order under the statute. However, the petitioner submits that the presence of an alternate remedy does no