Allahabad High Court
M/S Kissan Chilling Udoyg And Anr. vs State Of U.P. And Others on 5 September, 2014
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- WRIT - C No. - 12840 of 2012 Petitioner :- M/S Kissan Chilling Udyog And Anr. Respondent :- State Of U.P. And Others Counsel for Petitioner :- B.C. Rai Counsel for Respondent :- C.S.C., Shivam Yadav, Shobhit Dube Hon'ble Sudhir Agarwal,J.
1. Heard Sri B.C. Rai, learned counsel for the petitioners and learned Standing Counsel as well as Sri Shivam Yadav, Advocate for respondents.
2. The writ petition is directed against the assessment order dated 23.05.2009 passed by Executive Engineer, Electricity Distribution Division-I, Budaun (respondent no. 4) under Section 126 of Electricity Act, 2003 (hereinafter referred to as the "Act, 2003"); the appellate order dated 03.02.2012 passed by Divisional Commissioner, Bareilly Division, Bareilly (respondent no. 3) and the consequential demand notice dated 23.02.2012 issued by respondent no. 4 under Section 3 of U.P. Government Electrical Undertaking (Dues Recovery) Act, 1958 (hereinafter referred to as the "Act, 1958").
3. The facts giving rise to the dispute in present writ petition, in brief, are stated as under.
4. The petitioner is running a Chilling Plant at Village Lauda Baheri, District Budaun. It has got an electric connection, bearing No. 008568/1203 with sanctioned electric load of 48 Horse Power (hereinafter referred to as the "HP"), which is said to have been enhanced to 65 HP on 22.01.2008. It is said that an inspection was made by officials of Mandhyanchal Vidyut Vitran Nigam Limited (hereinafter referred to as the "MVVNL"), the Licensee, authorized to distribute electricity in the area of District Budaun, on 19.12.2007. They found demand of electric load at petitioner's chilling plant, recorded was more than the sanctioned load. They suggested that petitioner should get his sanctioned load enhanced. It is in reference thereof, petitioner got electrical load enhanced from 48 HP to 65 HP.
5. On 24.08.2008, checking was made at petitioner's premises by a team consisting of Assistant Engineer (Meter), Electricity Test Division, Budaun and Sub Divisional Magistrate, Sadar, Budaun. It recorded following comments in respect of meter test:
^^esu ehVj tks fd L.T. ij yxk gS n'kkZ;h tk jgh djsUV ehVj dh CT out put ds cjkcj ugha gS tks fd gksuh pkfg, vr% esu ehVj lafnX/k ekywe iM+kA Mcy ehVj n'kkZ;h tk jgh djsUV Hkh mldh C.T. vkmV iqV ds cjkcj ugha gS vr% Mcy ehVj Hkh lafnX/k ekywe iM+kA nksuksa ehVj dh MRI lgk;d vfHk;Urk ¼ehVj½ }kjk dh x;hA lgk;d vfHk;Urk ¼ehVj ½ nksuksa ehVj ckDl [kksyus ij ik;k x;k fd ehVj dh lHkh lhys VSEiMZ gSA vr% duSD'ku Jh eqdqy jLrksxh] izHkkjh voj vfHk;Urk }kjk nwjHkk"k ij 02-05 cts ¼jkf=½ 132 ds0oh0 lc LVs'ku ls 11 ds0oh0 iape QhMj dk 'kVMkmu ysdj equh'oj bl ykbZueSu ls VªklehVj ls H.T. tEQij dVokdj duSD'ku dVok fn;kA rRi'pkr lgk;d vfHk;Urk ¼ehVj½ us nksuksa ehVj mrjok fy;s x;sA Mcy ehVj miHkksDrk izfrfuf/k dh mifLFkfr esa [kksyk x;k vkSj ik;k x;k fd ehVj dh P.C.B. esa ,d vfrfjDr ;qfDr yxh gS ftl ij dkyk Vsi yxk feykA bl ;qfDr }kjk gh ehVj }kjk miHkksx ;wfuV dk fu;U=.k gksrk gSA ;g ;qfDr fjeksV }kjk pkfyr gksrh gS fjeksV lkbV ij ugha feykA nksuksa ehVj lkbV ij lhy eqgj dj Fkkus esa tek fd;s tk jgs gSaA** (emphasis added) English translation by the Court "The current being displayed in the main meter connected with LT is not equal to the one in CT output, which should have been the case. Hence, something foul appeared to be there in the meter. The current being displayed in the Double Meter is also not equal to the one in the CT output.
MRI of both the meters was conducted by Assistant Engineer (Meter).
On opening both the meter boxes, it was found that all seals of the meter were tampered with. Hence, following telephonic call by Mukul Rastogi, In-charge Junior Engineer, the connection was cut off after opting for shut down of 11 KV Fifth Feeder from 132 KV sub-station and getting jumper cable off HT from transmitter through line-man Munishwar at 02:05 o'clock in the night. Thereafter, Assistant Engineer (Meter) got both the meters deinstalled.
The double meter was opened in the presence of consumer-representative and an extra device enveloped in a black tape was found fitted at the PCB of the meter. The unit for consumption in the meter is controlled by this device, operated by a remote- control. The remote was not found at the site. Both meters having been sealed at the site, are being deposited with the police station."
6. Pursuant to checking report dated 24.08.2008, a first information report under Section 135 of Act, 2003 was lodged. Thereafter, Assistant Engineer (Revenue), respondent no. 5, issued a provisional assessment notice-cum-demand notice dated 08.09.2008, under Section 3 of Act, 1958, for a sum of Rs. 21,74,211/- and required petitioner to deposit the same. The aforesaid demand notice was challenged in Writ Petition No. 898 of 2008 wherein an interim order was passed on 25.09.2008 directing petitioner to deposit a sum of Rs. 1 lac, whereupon his electrical connection was directed to be restored. Further, petitioner was directed to make objection to provisional assessment which was directed to be decided by Competent Authority within four weeks.
7. Pursuant thereto petitioner filed his objection dated 04.10.2008, which was rejected by respondent no. 4 (hereinafter referred to as the "Assessing Authority") vide order dated 06.11.2008 and provisional assessment of Rs. 21,74,211/- was made final. The final assessment order was also challenged in pending Writ Petition No. 898 of 2008. This Court found that except making provisional assessment, final, in respect of various objections nothing has been said and, therefore, final assessment order was unsustainable. It was accordingly, quashed vide judgment dated 12.02.2009. The Court directed petitioner to make a fresh objection which was directed to be decided by Assessing Authority, afresh. The writ petition was finally disposed of vide judgment dated 12.02.2009.
8. The petitioner filed a fresh objection dated 27.02.2009 denying charges of tempering with meter seals and theft of electrical energy. It was also stated that nothing has been disclosed as to how and in what manner Assessing Authority arrived at the amount of provisional assessment of Rs. 21,74,211/-and this assessment is illegal. Letter dated 27.02.2009 was also submitted before Assessing Authority requiring to disclose basis of calculation of provisional assessment amount so that a detailed objection on this aspect may also be given. Again Assessing Authority passed an order dated 21.03.2009 stating in a very cursory manner that objection of petitioner has been considered and found baseless; the assessment which has already been made, is correct, and, made final.
9. Since the way in which order passed by Executive Engineer was not in conformity with direction issued by this Court, the petitioner preferred Contempt Petition No. 1302 of 2009, in which notice was issued on 29.04.2009. Thereafter the Assessing Authority passed a detailed order dated 23.05.2009.
10. Against aforesaid order of assessment dated 23.05.2009, petitioner preferred Appeal No. 01 of 2011 vide memo of appeal dated 24.08.2011. This appeal has been rejected by Appellate Authority consisting of Additional Commissioner (Administration), Bareilly Division, Bareilly and Superintending Engineer, Electricity Distribution Circle, Budaun vide order dated 03.02.2012.
11. It is said that Appellate Authority consisted of Commissioner and Superintending Engineer of Circle concerned. The Commissioner delegated his power to Additional Commissioner (Administration) vide order dated 14.11.2011 with reference to State Government's notification dated 25.03.2009 and in reference thereto aforesaid appellate order was passed by a committee consisting of Additional Commissioner (Administration) and Superintending Engineer. The Appellate Authority rejected petitioner's appeal and in pursuance thereto demand notice has been issued by Assessing Authority on 23.02.2012 requiring petitioner to deposit balance amount of assessment.
12. Learned counsel for the petitioner submitted that as required under Section 126 read with Para 6.8 of Electricity Supply Code, 2005 (hereinafter referred to as the "Code, 2005"), the Assessing Authority was under an application to inform petitioner as to what is the allegation against petitioner and in what manner it proposes assessment of a particular quantum in absence whereof it would be difficult for the noticee to submit any effective reply. He placed reliance on a Division Bench decision of this Court in Ashok Kumar and others Vs. State of U.P. and others, 2008(6)ADJ 660 and submitted that the impugned orders do not satisfy the law laid down therein, therefore, are wholly illegal and liable to be set aside. He further submitted that there is a clear misreading on the part of Assessing Authority and, therefore, entire proceedings are vitiated in law. My attention was drawn to checking report dated 24.08.2008 and it is contended that in respect of both meters, it is not the case of checking team that meter body seal or cubicle seals, affixed thereon, were tempered in any manner. He pointed out that in the checking report, regarding main meter, the column body seal has been marked and it was found damaged but in respect of double meter, installed by respondent-licensee, nothing has been said about meter body seal, whether it was defective, damaged or tempered etc. Both meters were opened by checking team itself. The alleged additional instrument mentioned in testing report is said to have been found in double meter and not main meter, as is also evident from checking report, but, in provisional assessment notice dated 08.09.2008, it has been said that after opening meter all the seals in meter were found tempered, which is not in conformity with the observations made in checking report. Sri Rai also said that in final order of assessment, impugned in this writ petition, the Assessing Authority has observed as if additional element was found in the body of main meter though this is also contrary to what has been said in checking report. It is pointed out that Appellate Authority also has stated that in the checking report, meter body seal was found damaged, and devise was found installed in the meter, though in the main meter, with which petitioner was concerned, no foreign element was found therein, and, only in respect of double meter, which was installed by respondent-department for testing their own main meter, checking report said that it (double meter) contain an additional instrument which the respondents claim that the same was being used for theft of electrical energy. It is urged that respondents-Assessing and Appellate Authorities have completely failed to apply their mind to the observations noticed in checking report. The findings recorded by them is clearly perverse and misreading of record. It is then contended that with regard to quantum of assessment no disclosure about the manner in which aforesaid amount has been calculated was shown to petitioner, as such no opportunity was given to petitioner to submit effective objection thereto. Therefore, also the entire proceedings are illegal, being in the teeth of law laid down by this Court in Ashok Kumar (supra). With respect to quantum of assessment also it is said that the value of ''F' has been taken as ''one' though in respect of medium power consumers, under statute, it could be only 0.5. Similar value of ''D' has been taken ''365', though, on 24.04.2008, checking was already made and, therefore, no assessment for a period earlier 24.04.2008 could have been made.
13. Sri Shivam Yadav, learned counsel appearing for respondents, however, sought to defend the impugned orders relying on reasons contained therein.
14. The parties before this Court do not dispute that the assessment in the case in hand has been made by following the procedure prescribed in Para 6.8 of Code, 2005 read with Section 126 of Act, 2003. I find that this aspect regarding procedure to be followed by authorities in making inspection and then assessment has already been considered in Ashok Kumar (supra). In paras 56 to 64 and then in paras 77 and 78 the Court has said:
"56. The provisional assessment notices are in question in all these cases except writ petitions no. 21986 of 2008 and 22356 of 2008 and have also been challenged on the ground that neither they have been issued observing the procedure prescribed under Section 126 of the Act, 2007 read with Clause 6.8 of Code, 2005 nor the petitioners have been given adequate opportunity of defence.
57. Sub-section 1 of Section 126 provides that if on inspection, the assessing authority comes to the conclusion that the person concerned is indulged in unauthorized user of electricity, the assessing officer shall provisionally assess, to best of its judgment, electricity charges payable by that person or by any other person benefited by such use. Therefore, the conditions precedent to attract the power of assessment under Section 126 (1) is the conclusion drawn by the assessing officer that the person concerned has indulged in unauthorized use of electricity.
58. The term "unauthorized use of electricity" is defined in explanation (b) to Section 126 which includes usage of electricity (i) by any artificial means; or (b) by a means not authorised by the concerned person or authority or licensee; or (iii) through a tampered meter; or (iv) for the purpose other than for which the usage of electricity was authorised. Before issuing an assessment notice, therefore, the assessing officer must record its conclusion that the person concerned or any other person benefited has used electricity unauthorizedly in terms as defined in Explanation (b) of Section 126. The Act in respect to the stage of recording of conclusion by assessing officer regarding user of electricity by the person unauthorizedly does not provide specifically for any opportunity of hearing to the person concerned but also simultaneously does not prohibit the same. The allegation of unauthorised use of electricity by a person concerned, as defined in Explanation (b) also covers within its ambit certain acts/omission which constitute an offence under Section 135 of the Act, 2003. Therefore, it is a serious matter and no person can be indicted and held guilty of user of electricity unauthorizedly unless he is given an opportunity of hearing before coming to such conclusion. Where a person is held guilty of unauthorised user of electricity, besides making him responsible for paying penalty in the shape of assessment under the Act, 2003 it also causes stigma on his conduct. He is declared an anti-social person indulging in a serious unsocial activity, by causing loss to the society and country in general and electricity undertaking in particular. Such condemnation of a person would not be permissible on the mere vagaries of the authority i.e. assessing officer unless such a person is given a fair opportunity of hearing i.e. putting his defence before the said authority. This Court is clearly of the view that before making provisional assessment, the assessing officer, in law, is bound to afford an opportunity to the consumer or person concerned of the allegations of means and ways in which he is said to have unauthorizedly used electricity, and, should be given an opportunity of placing his defence. Thereafter the assessing officer shall record its conclusion with respect to unauthorised use of electricity, to confer upon himself the jurisdiction to issue provisional assessment notice. The object of opportunity at the two stages namely, before arriving at the conclusion of unauthorised use of electricity and before making final assessment are distinct. In the former, it is the very issue whether the consumer is guilty of unauthorised use of electricity or not and in later case it is the quantum of amount which he is required to pay as a compensation and a fiscal preventive measure for committing such irregularity. The first one is the stage of finding the person guilty and later one is the stage of determining extent of monetary liability for compensating electrical undertaking qua the alleged unauthorised use of electricity by such persons. It is only when the proceedings are conducted in the above manner, the assessment made can be held valid and not otherwise.
59. It is true that judicial cognizance can/should be taken of the fact that theft of electricity has become a serious menace and a social evil not only in the State of U.P. but in the entire country. The electricity has become a necessity in the present day of society and development of society as well as nation cannot be conceived of without electricity. The availability of electricity however is much in deficiency. A huge amount of electricity, consumed by scrupulous persons is causing a serious loss to public revenue hampering and obstructing the development of electrical sector in particular as well as society and nation in general. Therefore, to check theft of electricity and/or unauthorized use of electricity, stern measures are required to be taken. The various provisions of Act, 2003 shows that the legislature is also concerned about it and has take several measures from time to time including making harsh provisions in the statute.
60. However, this by itself would not justify condemnation and indictment of a citizen or a consumer of electricity by holding him guilty of unauthorized use of electricity on the vagaries of the officers of electrical undertaking unless he is disclosed the manner in which he was found using electricity unauthorizedly on inspection by the officer concerned and given an opportunity to explain his case, if any. It is well settled law that no person can be indicted or condemned without giving a minimal opportunity of hearing. In the case of unauthorized use of electricity found by the assessing officer at any place or the premises etc. or otherwise, the same has to be disclosed to the person concerned giving him an opportunity to put his defence. The principles of natural justice unless excluded by express provision of the Act or by necessary implication cannot be said to be inapplicable when a citizen or person is being indicted of a serious charge, i.e., unauthorized use of electricity, which in some of the cases an offence under Section 135 of Act, 2003.
61. On behalf of the respondents it is argued that in case, such a view is taken, that would amount to delay of issuance of notices and proceedings and may hamper the very objectives of the Act i.e. prevention of theft/unauthorized use of electricity. We are not impressed with the said objection. It is permissible to an 'assessing officer' to cover both the aspects of the matter in the show cause notice, which he is required to issue under sub-section 3 of Section 126 of the Act. The conclusion with respect to unauthorized use of electricity is a condition precedent for issuing provisional assessment notice and, therefore, unless opportunity is given and a finding is recorded whether there is unauthorized use of electricity or not, the question of assessment would not arise. Obviously, no person can come to the conclusion of unauthorized use of electricity suo motu without giving an opportunity to the person concerned and any other procedure would not only be violation of principles of nature justice but would also be arbitrary, infringing Article 14 of the Constitution of India. In order to read Section 126 (1) constitutionally valid, we have no hesitation in observing that before coming to any conclusion the assessing authority would give an opportunity to the person concerned to find out whether he is/was indulged in unauthorized use of electricity.
62. The manner in which we have read section 126(1) and (3) of the Act , 2003, the U.P. Electricity Regulatory Commission (hereinafter referred to as the "UPERC") and the distribution licensees working in the State of U.P., have also understood the same as is evident from the procedure prescribed in the Code, 2005 which has been published by UPERC in exercise of its power under Section 50 of the Act, 2003.
63. Para 6.8 (a), (b) and (c) of Code, 2005 deals in detail the procedure for inspection, provisional assessment, hearing and final assessment in the case of unauthorised use of electricity and reads as under:
"6.8 Procedure for Inspection, Provisional assessment, Hearing and Final Assessment in case of unauthorised use of electricity (UUE) under Section 126 of the Act
(a) (i) An Assessing Officer shall suo-moto, or on receipt of reliable information regarding unauthorised use of electricity or on instruction from higher authority, promptly conduct inspection of such premises, exercising due diligence. (Annexure 7.3 (1))
(ii) The assessing Officer, if required to do so, may handover his business card to the consumer before entering the premises. Photo ID card shall be carried by each team members.
(iii) The access to consumer premises shall be in accordance to clause 4.30 to 4.34. Provided that the occupant of the place of search or any person on his behalf shall remain present during the inspection. A list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list.
(iv) The report shall be prepared at site giving details of connected load, condition and details of old seals and resealing done, working of meter, details of new seals. The report shall mention any irregularity noticed which may lead to an inference of unauthorised use of electricity in the format given Annexure 6.4. The Inspecting Officer shall carry seals for this purpose.
(v) The report shall clearly indicate whether or not conclusive evidence substantiating the fact that UUE was found. The details of such evidence should be recorded in the report. The report shall be signed by each member of the inspection team and handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of inspection report shall be pasted at a conspicuous place in/outside the premises and may be photographed. Simultaneously, the report shall be sent to the consumer under Registered Post/Speed post on the day or the next day of the inspection.
(vi) Within 3 working days of the date of inspection, the Assessing Officer shall analyse the case after carefully considering all the evidence including the consumption pattern, wherever available and the report of inspection. If it is concluded that no unauthorised use of electricity has taken place, no further action will be taken.
(b) Notice to the Consumer and his reply:
(i) If the Assessing Officer suspects that Unauthorised Use of Electricity has taken place (as defined under Explanation to Section 126 of the Act), he will serve a provisional assessment bill alongwith show cause notice to the consumer, giving 15 working days for submission of reply, under proper receipt fixing a date of hearing.
(ii) The notice shall invite objections in writing from the consumer against the charges and provisional assessment and require presence of the consumer on the date of hearing.
(c) Hearing
(i) On the date of hearing, the Assessing Officer shall hear the consumer. The Assessing Officer shall give due consideration to the facts submitted by the consumer and pass, within 7 working days, a speaking order as to whether the case of UUE is established or not. The order shall contain the brief of inspection report, submissions made by the consumer in his written reply and during hearing.
(ii) A copy of the order shall be served to the consumer under proper receipt, and in case of refusal to accept the order or in absence of the consumer, shall be served on him under Registered Post/Speed Post. The consumer shall be required to make the payment within 15 days of receipt of final order for assessment.
(iii) If the Assessing Officer finds that unauthorised use of electricity has taken place (as defined under explanation to Section 126 of the Electricity Act, 2003, it shall be presumed unless contrary is proved, that such unauthorised use of electricity was continuing for either actual period of misuse, if available, or three months immediately preceding the date of inspection in case of domestic and agriculture services and for a period of six months immediately preceding the date of inspection for all other categories of services, and he shall provisionally assess the consumption as per the procedure specified in Annexure 6.3.
(iv) The assessment under (iii) above shall be made at a rate equal to one-and-a-half times the tariff rates applicable for the relevant category of service. The amount billed at this rate (one-and-a-half times the tariff rates) shall not be taken into consideration for the purpose of computing consumer's liability to pay monthly/annual charges, wherever applicable."
64. A perusal of para 6.8 (a) (i), (ii), (iv) and (v) shows that it presupposes an inspection of the premises to be made by the assessing officer and if he finds evidence of irregularities constituting unauthorised use of electricity at the premises, shall prepare a report at the site, giving details thereof, and, would handover the copy of such report to the consumer or his representative at the site itself. In case of refusal by consumer or its representative, to either accept or giving receipt to such report, the same shall be pasted at a conspicuous place at the premises and shall also be sent to the consumer under registered post/speed post on the day itself or the next day of the inspection. Therefore, the requirement of prima facie conclusion is supposed to be recorded by the assessing officer at the time of inspection itself and needs to be communicated to the consumer. Para 6.8 (b) (ii) shows that the notice shall require the consumer to give his objections against the charges and provisional assessment. Para 6.8 (c) (i) shows that an opportunity of personal hearing shall also be given to the consumer and thereafter the assessing officer shall pass a speaking order recording (i) whether unauthorised use of energy is established or not, and; where it is so established, (ii) shall determine the quantum of the amount which the consumer has to pay i.e. the assessment shall be made by the assessing officer. Thus even Code, 2005 which contains the conditions of electricity supply etc., provides a detailed procedure in which the assessment would have to be made by the assessing officer.
77. From the above discussion it is also evident that the procedure prescribed in para 6.8 of Code 2005, while issuing provisional assessment notice has not been followed at all. Before issuing a demand notice under Section 3 of 1958 Act, admittedly no final order of assessment as contemplated under para 6.8 (c) (i) and (ii) has been passed by the assessing officer. There is no averment in the counter affidavit that MRI report and its findings were made available to the consumers at the time of inspection or alongwith provisional assessment notice after discussing and substantiating the alleged irregularity as required in para 6.8 (a) (iv) and (v). Therefore, it cannot be said that a valid and proper assessment notice was issued to the petitioners which could have been replied by them effectively. The kind of notice issued to the petitioners mentions only that on 15.01.2008 departmental officers/ enforcement squad found excess load/ theft of energy/other irregularities and, therefore, as per Code, 2005 the assessment to the following effect is made and if they want to give any objection, may file the same within seven days, failing which recovery proceeding would be initiated. This is non compliance of para 6.8 of Code, 2005.
78. Para 6.8 (b) (i) also require assessing officer to give 15 working days time for submission of reply and sub-clause (ii) thereof shows that he shall also fix a date of hearing on which date the consumer shall be heard in person. No such procedure has been followed by the assessing officer in the case in hand, therefore, the impugned provisional notices cannot be sustained being wholly illegal, contrary to the procedure prescribed in para 6.8 of Code, 2005 read with Section 126 of the Act, 2003."
15. Applying the dictum and observations made by Division Bench in Ashok Kumar (supra) it is evident that in the present case neither there is any notice issued by respondent-Assessing Authority regarding the factum as to whether petitioner can be held guilty of alleged theft of electrical energy or authorized user nor on the quantum of assessment there is any notice and in a very vague and unspecified manner everything has been taken as if it stands proved from what is contained in the checking report itself and whatever the cumulative amount of assessment is proposed that by itself is sufficient to serve the requirement of statute which is patently illegal and contrary to law laid down in above case.
16. Further there is a clear misreading in the notice dated 08.09.2008. In checking report, with respect to main meter, there is an endorsement in the column of body seal that it is damaged but nothing has been said in respect to double meter on this aspect. The allegation that a foreign element was found inside double meter, further shows that nothing was found otherwise in the double meter. Therefore, even if body seal of main meter was defective but nothing was found inside therein. For double meter there is no averment in checking report that its body seal was found damaged and, therefore, whatever has been found therein as foreign element, that apparently be not sufficient to condemn consumer for the reason that the double meter was installed by respondents for testing main meter. It is not the case that double meter was also under same sealing certificate as that of main meter and anything wrong with the double meter can justify condemnation of consumer and make him liable for assessment. If respondents double meter was manipulated in one or the other manner, it was responsibility of respondents to show how it has happened particularly when in the checking report nothing has been said about its body seal that it was/were found damaged or altered. Again in the show cause notice there is an averment that all the seals were found tempered though that is not so mentioned in checking report. This part of observations made in show cause notice is a clear misreading of checking report.
17. When confronted about these fact, Sri Shivam Yadav, learned counsel appearing for respondents, fairly stated at the Bar that there appears to be some apparent misreading in the show cause notice and that justify remand of the matter.
18. In view of above, I have no hesitation in observing that the impugned orders cannot sustain. The writ petition is allowed. Impugned orders dated 23.05.2009, 08.09.2008, 03.02.2013 and demand notice dated 23.02.2012 are hereby quashed. The respondent-Assessing Authority however shall be at liberty to proceed for fresh assessment in the light of observations made above and following strictly the procedure laid in Para 6.8 and the law laid down in Ashok Kumar (supra).
19. No costs.
Order Date :- 05.09.2014 AK