Back
2012 Supreme(Cal) 963
High Court of Judicature at Calcutta
GIRISH CHANDRA GUPTA, MRINAL KANTI SINHA, JJ.
M/S Macneill Engineering Limited
Versus
The West Bengal State Electricity Distribution Co. Limited
M.A.T. No. 795 of 2012
Decided On : 19-10-2012
For the Appellant:Ashoke Gupta, Sakya Sen, A. Mitra, N. Adhya, Advocates.
For the Respondent:A.K. Mitra, Advocate General, Bhaskar Mitra, S.S. Koley, Advocates.
The provisional assessment made by the assessing officer under Section 126 of the Electricity Act, 2003 is not appealable.
Headnote:
ELECTRICITY ACT - [SECTION 126, 127, 135, 152, 154] - BEST JUDGMENT ASSESSMENT - PROVISIONAL ASSESSMENT - ELECTRICITY ACT - [SECTION 126, 127, 135, 152, 154] - BEST JUDGMENT ASSESSMENT - PROVISIONAL ASSESSMENT - ELECTRICITY ACT - [SECTION 126, 127, 135, 152, 154] - BEST JUDGMENT ASSESSMENT - PROVISIONAL ASSESSMENT - The provisional assessment made by the assessing officer under Section 126 of the Electricity Act, 2003 is not appealable. The assessee is entitled to file objections against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to the assessee, pass a final order of assessment within thirty days from the date of service of the provisional assessment order. If the assessee is aggrieved by the final order of assessment, he may prefer an appeal to the Appellate Authority under Section 127 of the Act. The Appellate Authority shall dispose of the appeal after hearing the parties and pass appropriate order. The order of the Appellate Authority is final.
Fact of the Case:
The petitioner, a sick company engaged in manufacturing forklift vehicle material and material handling equipment, was found to have been engaged in unauthorized use of electricity. The West Bengal State Electricity Distribution Company Limited (WBSEDCL) communicated to the petitioner a provisional assessment for a sum of Rs.2,28,29,694/-. The petitioner challenged the provisional assessment, the disconnection of supply of electricity, and the lodging of the FIR, by filing a writ petition.
Finding of the Court:
The Court held that the provisional assessment made by the assessing officer under Section 126 of the Electricity Act, 2003 is not appealable. The assessee is entitled to file objections against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to the assessee, pass a final order of assessment within thirty days from the date of service of the provisional assessment order. If the assessee is aggrieved by the final order of assessment, he may prefer an appeal to the Appellate Authority under Section 127 of the Act. The Appellate Authority shall dispose of the appeal after hearing the parties and pass appropriate order. The order of the Appellate Authority is final.
Issues: Whether the provisional assessment made by the assessing officer under Section 126 of the Electricity Act, 2003 is appealable.
Ratio Decidendi: The Court held that the provisional assessment made by the assessing officer under Section 126 of the Electricity Act, 2003 is not appealable. The assessee is entitled to file objections against the provisional assessment before the assessing officer, who shall, after affording a reasonable opportunity of hearing to the assessee, pass a final order of assessment within thirty days from the date of service of the provisional assessment order. If the assessee is aggrieved by the final order of assessment, he may prefer an appeal to the Appellate Authority under Section 127 of the Act. The Appellate Authority shall dispose of the appeal after hearing the parties and pass appropriate order. The order of the Appellate Authority is final.
Final Decision: The Court disposed of the appeal and the application, directing the authorities to disclose the material which may have been taken into account for the purpose of arriving at the conclusion as regards unauthorized use of electricity, the material for provisional assessment of both quantity and the valuation made by them within 3 weeks from date. The appellants shall be entitled to file their objection within three weeks thereafter. The matter shall thereafter be proceeded with following the principles of natural justice.
Girish Chandra Gupta, J.
This appeal is directed against an order dated 4th May, 2012 passed by the Learned Trial Court refusing to pass any interim order as regards restoration of supply of electricity. Aggrieved by the order of refusal the petitioners have come up in appeal.
The case of the writ petitioners briefly stated is as follows:
The writ petitioner No.1 is a sick company and is engaged, inter alia, in manufacturing of forklift vehicle material, material handling equipment and such other business. They have 300 workers. Part of the factory premises is let out for shooting of TV serials etc. The consumption of electricity in the preceding 12 months from the date of incident was for an aggregate sum of Rs.2,00,000/-approximately. On 18th April, 2012 a surprise inspection was conducted at the factory of the petitioner No.1. During such inspection the petitioner No.1 was allegedly found to have been engaged in unauthorized use of electricity. Supply was disconnected at about 16.20 hours on 18th April, 2012. On 19th April, 2012 the West Bengal State Electricity Distribution Company Limited (hereinafter referred to as W.B.S.E.D.C.L) communicated to the writ petitioner No.1 a provisional assessment for a sum of Rs.2,28,29,694/-. The allegations contained in the letter dated 19th April, 2012 containing the aforesaid provisional assessment are as follows:
“Dear Sir,
With reference to above, please recall that one inspection was conducted at your industrial premises located at Konchowki, Bhasa, Diamond Harbour Road, P.O.: Bishnupur, Dist.: 24 Pgs (South) by me along with other officials of WBSEDCL on 18.04.2012 jointly with Mr. Asis Kumar Nandi, Manager (Electrical) and Mr. Shyama Prasad Roy, Engineer (Electrical Division) – both of your company.
During such joint inspection, it was observed that the electricity of WBSEDCL provided exclusively for industrial purpose was used by your company for commercial purpose by allowing to run nos. of film & TV serial studios within your premises, understandably on rental basis. It was, in fact, elaborately demonstrated to us by Mr. Asis Kumar Nandi, Manager (Electrical) of your company how and by what means you have extended WBSEDCL’s power for using the same for the said commercial purpose. It is however a different issue that after being aware of the consequences of such act on your part, which is a dishonest commission of unauthorized use of WBSEDCL’s power as per provision of Section 135 of the Electricity Act, 2002, Mr. Nandi completely denied the fact for obvious reason with the untrue claim that the said studios were being run through DG set.
As per provision of Section 135 of the Electricity (Amendment) Act, 2007 read with Electricity Act, 2003, your power supply was disconnected on 18.04.2012 at around 16:20 Hrs. and one FIR was lodged against such dishonest act at Bishnupur Police Station on 18.04.2012 with submission of seized article having case no.301 dated 18.04.2012.
Provisional Assessment under Sub-section (1) of Section 126 of the Electricity (Amendment) Act, 2007 read with Electricity Act, 2003 has been made by me being the assessing officer and is enclosed with the assessment memo no.SEC/BULK-399/1/04/2012/SUPP/2011)/229 dated 18.04.2012 with this order of provisional assessment. The amount of provisional assessment has come to Rs.2,28,29,694/-(Rupees two crore twenty eight lakh twenty nine thousand six hundred and ninety four only) calculated in line with the provision of Sub-section (1) of Section 126 of the Electricity Act, 2003.
If you are not satisfied with the instant order for provisional assessment, you are at liberty as per clause 5.3 of regulation 36/WBERC of the Hon’ble WBERC to submit your written objection against the provisional assessment with me being the assessing officer within fifteen days from the date of receipt of this order of provisional assessment, on receipt of which, I being the assessing officer shall hear you and pass a final orde
