Calcutta High Court
Nitin Agarwal vs Income Tax Officer on 30 June, 2025
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OD - 7
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
WPO/183/2025
NITIN AGARWAL
VS
INCOME TAX OFFICER, WARD 46(1), KOLKATA AND ORS
BEFORE :
HON'BLE JUSTICE RAJA BASU CHOWDHURY
DATE : 30th June, 2025.
Appearance :
Ms. Sutapa Roychoudhury, Sr. Adv.
Mr. Abhijat Das, Adv.
Ms. Aratrika Roy, Adv.
Mr. Anirban Chatterjee, Adv.
..for petitioner.
Mr. Prithu Dudhoria, Adv.
..for respondent.
1. Challenging the notice issued under Section 148 of the Income Tax Act, 1961 (in
short, the “said Act”] and the order passed under Section 148A(d) both dated 29 th
December, 2023 for the assessment year 2019-20 including the assessment order
under Section 147 of the said Act dated 4th February, 2025, and the demands
raised on the basis thereof, the instant writ petition has been filed.
2. Ms. Roychoudhury, learned Senior Advocate representing the petitioner, would
submit that since the notice under Section 148 of the said Act for the relevant
assessment year has been issued by the jurisdictional assessing officer, the entire
proceedings is a non-starter inasmuch as, according to her, consequent upon the
scheme being notified in terms of Section 151A of the said Act, vide notification
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dated 29th March, 2022, it is the faceless assessment unit which could have
exercised such power. According to her, since the notice under Section 148 of the
said Act is bad, the entirety of the proceedings including the order of assessment
is vitiated on such ground and should be set aside.
3. Mr. Dudhoria, learned Advocate representing the department, would submit
that the petitioner had earlier approached this Court challenging the order dated
13th April, 2023 issued under Section 148A(d) of the said Act in respect of the self-
same assessment year by filing a writ petition which was registered as
WP/1096/2023. Although, the writ petition was dismissed by an order dated 8 th
June, 2023 by a Co-ordinate Bench of this Court, the Division Bench by an order
dated 13th October, 2023 while setting aside the order under Section 148A(d) on
the ground of violation of principles of natural justice had remanded the matter
back to the assessing officer by providing the petitioner with an opportunity of
personal hearing, with liberty to file further objection with supporting
documents. Pursuant to the aforesaid, a fresh order under Section 148A(d) of the
said Act was passed on 29th December, 2023. Although, the petitioner had
subsequently once again approached this Court by fling a writ petition
challenging the same, such challenge of the petitioner did not ultimately succeed
and by an order dated 21st June, 2024 the Division Bench of this Court had
dismissed the appeal. The petitioner had thereafter participated in the
assessment proceedings whereupon the order dated 4 th February, 2025 was
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passed. The aforesaid order under Section 147 of the said Act is an appealable
order. Having regard thereto, according to him, no special case for interference
having been made out, this Court ought to dismiss the writ petition.
4. Having heard the learned Advocates appearing for the respective parties and
considering the materials on record, it prima facie appears that on the previous
occasion the petitioner had approached this Court by filing a writ petition
challenging the order under Section 148A(d) of the said Act dated 13 th April,
2023. On such occasion though the petitioner could not succeed before the
learned Single Judge, the Division Bench of this Court by its order dated 13 th
October, 2023 taking note of the case made out, permitted the petitioner to file
further objection along with supportive documents and directed the
jurisdictional assessing officer on receipt of the same to fix a date for personal
hearing and to hear out the authorised representative of the petitioner. Pursuant
to the aforesaid, the Jurisdiction Assessing Officer upon affording the petitioner
with an opportunity of hearing had passed an order under section 148A(d) of the
said Act dated 29th December, 2023. Challenging the said order the petitioner had
once again approached this Court by filing a writ petition. Such challenge,
however, did not succeed. Although an appeal was preferred which was
registered as APO/64/2022, the Hon’ble Appellate Court had dismissed the said
appeal by observing that the order passed by the learned Single Judge was
perfectly justified in relegating the appellant to avail the remedy under
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provisions of the said Act. The petitioner had since participated in the said
proceedings. After conclusion of such proceedings the assessment order under
section 147 of the said Act has been passed on 4th February, 2025 along with the
consequential demand.
5. In the instant writ petition the challenge is not, however, limited to the
assessment order. The petitioner once again seeks to challenge the notice under
section 148 of the said Act. On this occasion, on the ground that the same was not
issued by the Jurisdictional Assessing Officer, having regard to the scheme being
notified in terms of section 151A of the said Act. Although, at the first blush, it
would appear that the petitioner may have an arguable case, however, having
regard to the fact that the petitioner had not raised such issue, had permitted the
Division Bench of this Court to direct the Jurisdictional Assessing Officer to
rehear the case upon affording opportunity of hearing and to pass a fresh order,
and the Jurisdictional Assessing Officer having afforded such opportunity and
the petitioner having availed the same by submitting to the Jurisdictional
Assessing Officer and upon conclusion of hearing the Jurisdictional Assessing
Officer having issued the notice under section 148, such exercise of jurisdiction
by the Jurisdictional Assessing Officer, in my view, cannot be faulted.
6. Although, the provision of Order II Rule 2 of the Code of Civil Procedure may
not strictly apply for a proceeding under Article 226 of the Constitution of India,
however, having regard to the conduct of the petitioner in approaching this
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Court and accepting the direction for the matter to be heard out by the
Jurisdictional Assessing Officer, I am of the view, it shall not be appropriate for
this Court to permit the petitioner to reopen such issue which has been closed at
the instance of the petitioner. In view thereof, the challenge of the petitioner to a
notice issued under section 148 of the said Act by the Jurisdictional Assessing
Officer fails. However, taking note of the fact that the petitioner had a statutory
remedy in a form of an appeal and as the writ petition has been pending before
this Court since 11th March 2024, I am of the view, in the event the petitioner
prefers an appeal before appellate authority within four weeks from date, the
appellate authority having due regard to the observations made hereinabove,
shall hear out the appeal and dispose of the same, subject to the compliance with
all formalities.
7. The writ petition is accordingly disposed of.
(RAJA BASU CHOWDHURY, J.)
S.Das/R. Bose