The Assessing Officer must be a member of the inspection team in order to properly assess the facts and situation, and the appellate authority must consider all the evidence before it and not decide the matter with a closed mind.

PINAKI CHANDRA GHOSE, J.

1. THIS appeal is directed against an order passed by the Hon'ble Single Judge dated 8th February, 2010 on a writ application filed by the Jadavpur Tea Company Limited and Ors. challenging the order of the appellate authority dated 13th January 2009. By the said order dated 13th January, 2009, final order of assessment dated 10th November, 2008 was affirmed. By the said final order of assessment the respondent/writ petitioner was required to pay Rs.9,38,045/-.

2. THE writ petitioner in the writ petition challenged the entire proceedings from the stage of provisional assessment including the appellate authority's order. The Hon'ble Single Judge held that the purported order of the appellate authority suffers from errors on the face of it. The Hon'ble Single Judge allowed the writ petition in favour of the writ petitioner. His Lordship further directed to reconsider the assessment made by the Assessing Officer in accordance with law within a period of 12 weeks from the date of communication of said order.

3. HIS Lordship came to such conclusion and held as follows:-

"For the reason that the Assessing Officer was not part of the inspection team I hold that he had no jurisdiction to make the assessment order and as such the assessment order is a nullity. The assessment has to be made afresh. If none of the members of the inspection team is a designated Assessing Officer the respondent licensee will forthwith take steps with the State Government to designate an Assessing Officer from the Inspection Team at least for this case. Therefore, for the reasons given above, I hold that the purported order of the appellate authority is bad for palpable errors on it and also for the reason that the assessment officers had no jurisdiction. So there could be no confirmation by the appellate authority of that assessment order which I have held as earlier a nullity. Before parting with this matter I do observe that I have not dealt with the point that the assessment order was passed beyond the time stipulated because as I have held that the assessment order is a nullity there is no need to go into the said question. I have held earlier that the assessment is a nullity. So there is no question of setting aside a null assessment order. But assessment has to be made afresh by a properly constituted Assessing Officer as I have indicated above. I allow the writ partly be directing reconsideration of assessment by the Assessing Officer in accordance with law within a period of 12 weeks from the date of communication of this order. The deposited sum of Rs 9,38,045/ - will abide by the results of the assessment."

4. BEING aggrieved, this appeal has been preferred by the appellant. The facts of the case briefly are as follows: - The writ petitioner is a limited public company and owner of a tea estate called 'Jadavpur Tea Garden, Ramshai Estate' within the district of Jalpaiguri. The facts pleaded by the writ petitioner is that on 19th September, 2008 at about 4 O'clock, some officials of the appellant herein visited the tea garden for inspection of the meter and the transformer. The said officials at that point of time disconnected electricity supply at the said tea garden and seized the meter at a ground that the original service transformer was damaged and they also found that another transformer was installed and the electricity was taken from the said transformer. The meter was both burnt and damaged.

5. THE appellant herein on the ground of unauthorized use of electricity and on the ground of theft of electricity lodged a First Information Report within the Maynaguri Police Station.

6. ON the very next day i.e. 20th September 2008, the licensee, the present appellant made a provisional assessment and demanded a sum of Rs 9,38,045/- which was duly paid by the respondent/writ petitioner.

The respondent/writ petitioner filed their objection in respect of the said provisional assessment. According to the writ petitioner