Calcutta High Court (Appellete Side)
Bma Fiscal Services Limited vs State Of West Bengal & Ors on 29 October, 2009
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
In The High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Mr Justice Jayanta Kumar Biswas
W.P. No.22730 (W) of 2005
BMA Fiscal Services Limited
v.
State of West Bengal & Ors.
Mr Javed Kumar Sanwarwala, advocate, for the petitioner. Mr Pratik Dhar and Mr R. Pattanayak,
advocates, for the second respondent. Mr Gaurav Khaitan, advocate, for the third and fourth
respondents.
Heard on : October 29, 2009.
Judgment on : October 29, 2009.
The Court:- Questioning the order of provisional assessment dated October 25, 2005 (at p.68) and the order of final assessment dated November 10, 2005 (at p.79) made by the assessing officer of CESC under s.126 of the Electricity Act, 2003 the petitioner took out this writ petition dated November 20, 2005.
The assessing officer proceeded on the basis that the alleged unauthorised use of energy by the petitioner was detected on October 25, 2005 and that on October 25, 2005 an FIR was lodged with the police station concerned. The petitioner that contested the final assessment proceedings claims that it did not know that an FIR was lodged only on November 14, 2005 stating that the alleged incident of unauthorised use of energy took place on November 14, 2005. Producing a certified copy of the FIR dated November 14, 2005 and alleging that the assessing officer proceeded on a fictitious basis, the petitioner questioned the two orders made in the assessment proceedings. The admitted position is that the petitioner did not get any opportunity to take before the assessing officer the plea that since in the only FIR the allegation was that the incident of alleged unauthorised use of energy was detected only on November 14, 2005, the assessing officer could not initiate and proceed with the assessment proceedings, the foundation whereof was detection of the alleged unauthorised use of energy on October 25, 2005. Counsel for CESC has sought to justify the action. He says that if all the records of the assessment proceedings are produced, it will appear that FIR was actually lodged on October 25, 2005. Whether an FIR was actually lodged on October 25, 2005 is a question of fact and it is to be proved before the assessing officer by adducing appropriate evidence. The petitioner is entitled to adduce evidence in proof of its case that the assessing officer proceeded on a fictitious basis. On the facts, I am of the view that the matter should be reexamined by the assessing officer.
For these reasons, I dispose of the writ petition ordering as follows. The order of final assessment dated November 10, 2005 is hereby set aside. The assessing officer shall give a fresh decision in the proceedings in which the order of provisional assessment dated October 25, 2005 was made. The order of provisional assessment shall abide by the fresh order of final assessment. In the final assessment proceedings CESC and the petitioner shall be given reasonable opportunity to adduce evidence in proof of their respective cases. The final order shall be made within four weeks from the date of communication of this order to the assessing officer. Needless to say that both CESC and the petitioner shall be given reasonable opportunity of hearing. The final order shall be communicated to all concerned immediately. There shall be no order for costs.
Urgent certified xerox of this order, if applied for, shall be supplied to the parties within three days from the date of receipt of the file by the section concerned.
(Jayanta Kumar Biswas, J.)