TaxTMI 
TaxTMI 
2014 (11) TMI 1256
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....y supplied by U.P. State Electricity Board (now U.P. Power Corporation) through 375 KVA transformer installed in the factory premises. It is alleged that the petitioner has installed five electricity generating sets. Three of which were steam turbo generating sets of 600, 660 and 1400/1600 KW respectively and one diesel generating set of 110 KW and one Rust in diesel generating set of about 50 HP. Since, three steam turbo generating sets had become very old to meet out the requirement, the petitioner decided to install a new turbo generating set of 2500 KW in February 1978. It is alleged that petitioner has obtained prior permission from the State Government with regard to generating set of 2500 KW and after completing other formalities required under the Electricity Act 1960 and Rules framed thereunder applied for its inspection on payment of Rs. 1500/- as fees. The newly installed turbo generating set was inspected on 24.5.1978 by the authorities of electricity department and after due permission the generating set become operative from 5.1.1979. According to the petitioner in view of new generating set the old sets became outdated and lost their utility hence dumped without use.....
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....uty of Rs. 4,31,517.19/- with threat to take coercive action. 5. The case setup and grounds pleaded in the writ petition has been denied by the respondents and stated that petitioner had never intimated the respondent about the six generating sets. It has been further stated in the counter-affidavit that the letter allegedly sent by the petitioner on 5.1.1979 was received on 16.4.1984 i.e. after lapse of five years. Hence, contents of the letter dated 5.1.1979 have been repudiated by the respondents vide registered letter dated 19.6.1984 (Annexure-2 to the counter-affidavit). It has categorically been pleaded in the counter-affidavit that at the time of inspection of factory premises the respondent No. 2 was not shown any record of accounts regarding energy generated during the period i.e. 5.1.1979 to 20.12.1981 which was necessary as per 1952 Act. Hence, during the course of electricity account checking on 19.12.1981 and 20.12.1981, the assessment of electricity was done in pursuance to provisions contained in Rule 4(1) of the Uttar Pradesh Electricity (Duty) Rules 1952. It is stated by the respondents in counter-affidavit that information was allegedly sent by the petitioner thr....
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....newly installed generating set of 2500 KW only if it kept running the old generating sets to their full capacity of 3060 KW. It has been stated by the respondents that petitioner was actually generating and consuming energy from the old turbo generating sets as was found during inspection by the respondent No. 2 brought on record vide letter dated 14-01-1982 and 19.2.1983 (Annexure 1 and 4 to the counter-affidavit). Since, there was no record of the units of energy generated by respective turbo generating sets, hence electricity (duty) was assessed and recovery proceeding was initiated on the basis of assessment order passed by the competent authority. It is submitted that 'duty' is levied as a means of taxation in order to raise additional revenue. Since, 'duty' is levied on consumption of energy it is a taxing event and the source from which energy is acquired is altogether irrelevant from the stand point of the liability imposed under the Act. It is submitted that exemption from payment of electricity 'duty' is granted on electricity consumed in auxiliaries. The petitioner has I installed auxiliaries with steam turbo sets and no auxiliaries have been inst....
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....Electricity (duty) Act 1952 empowers the respondents to impose electricity duty conferred by Section 3 of the 1952 Act. Section 4 provides that electricity duty shall be paid in such manner and within such period as prescribed by the Government. For convenience Section 4 of the 1952 Act is reproduced as under: "Section 4: Payment of electricity duty and interest thereon [(1) The electricity duty shall be paid in such manner and within such period as may be prescribed, to the State Government-- (a) where the energy is supplied or consumed by a licensee, by the licensee; (b) where the energy is supplied by the State Government or the Central Government or is supplied or consumed by the Board, by the appointed authority; and (c) where the energy is consumed by any other person from his own source of generation, by the person generating such energy. (2) Where the amount of electricity duty is not paid to the State Government within the prescribed period as aforesaid, the licensee, the Board or other person mentioned in clause (c) of sub-section (1), as the case may be, shall be liable to pay within such period as may be prescribed, interest at the rate of eighteen per cent,....
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....he shall be punishable with a fine not exceeding one thousand rupees.] 16. Uttar Pradesh Electricity (Duty) Rules 1952 (in short hereinafter referred as 1952 Rules) contains the provision with regard to installation of meter, manner and time, payment of duty, interest as well as penalty. Rule 4 of the 1952 Rules deals with the manner of calculating duty. It provides that duty shall be computed on the total consumption for the period intervening between the reading of electricity meter consumed immediately preceding and immediately following September 1, 1970, and that Rule 4 may not be given effect unless the meter is installed to find out the total electricity consumed. 17. Rule 10 deals with the power of entry by inspecting officers whereas Rule 11 deals with the other duty and duty of inspecting officers. For convenience Rule 10 and 11 of the 1952 Rules are reproduced as under: "(1). Other powers and duties of the Inspecting Officers.--An Inspecting Officer shall, as often as may be necessary inspect the books of accounts kept and returns submitted by a licensee, appointed authority or other person, under Rules 7 and 8 respectively and apply a detailed test of individual ent....
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.... sub-rule (3) of Rule 11 and his decision except for the amount of penalty under sub-rule (2) or sub-rule (3) of Rule 11 shall be final. (b) Electrical Inspector against the order of Deputy Electrical Inspector given under Rule 13 or under sub-rule (2) of Rule 14 and the decision of the Electrical Inspector shall be final. (c) Authority appointed generally or specially by the State Government, against the decision of the Electrical Inspector with regard to the amount of penalty only given under clause (a) above in appeal under sub-rule (2) or sub rule (3) of Rule 11 and its decision shall be final. (2) Every appeal shall be in writing, duly accompanied by a copy of the order or decision appealed against and a receipted copy of the treasury challan in token of payment of fee prescribed under Rule 13-B. An appeal shall not be entertained beyond a period of 90 days from the date of the service of the order appealed against.] 20. It shall be appropriate to consider the cases relied upon by the learned counsel for the petitioner and respondent State. 21. In Bank of Chettinad Ltd. v. Commissioner of Income Tax, Madras, Privy Council held that if a person sought to be taxed come....
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....gment is reproduced as under: "Errors of fact can also be a subject-matter of judicial review. (See E. v. Secy. Of State for the Home Deptt.) Reference in this connection may also be made to an interesting article by Paul P. Craig, Q.C. Titled "Judicial Review; Appeal and Factual Error" published in 2004 Public Law, p. 788." Hon'ble Supreme Court had interfered the factual controversy over long pendency of the matter and being satisfied from material on record. 26. In Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane, (2005) 3 SCC 254, Hon'ble Supreme Court reiterated the aforesaid proposition of law with regard to Court's right of judicial review in a matter involving disputed question of fact. 27. In Siemens Ltd. v. State of Maharashtra and others (supra) Hon'ble Supreme Court upheld the Court's right to interfere in a petition questioning a show-cause notice. Their Lordship held that when a notice is issued with premeditation or without jurisdiction writ petition shall be maintainable. 28. Same proposition has been reiterated in the case of Uttamrao Shivadas Jankar v. Ranjitsingh Vijaisinh Mohite-Patel (supra). 29. The contention of the petitioner'....
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....tion of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of." 32. In the case of Assistant Collector Central Excise (supra) their Lordship of Hon'ble Supreme Court held that power conferred under Article 226 of the Constitution of India is not to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, power of judicial review may be exercised under Article 226 of the Constitution of India. To quote relevant portion which is as under: "Article 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the ....
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.... of the principles of natural justice. 36. In Zunaid Enterprises (supra) Hon'ble Supreme Court reiterated that in the event of availability of alternative statutory remedy ordinarily Court should not interfere under the writ jurisdiction more so when the controversy involved mixed question of law and fact. 37. In Commissioner of Central Excise (supra) Hon'ble Supreme Court ruled that notification should be read on its own and no analogy should be drawn from another notification. 38. In the case of Dalip Singh (supra) Hon'ble Supreme Court deprecated new breed of dishonest litigants and declined to grant any relief. 39. On behalf of State a case has been set up that petitioner has not installed any meter to find out the actual electricity consumption and also not intimated the respondents with regard to decrease of efficiency of six generating sets. The letter dated 5.1.1979 was received on 16.4.1984 by the office of respondents. It has further been stated that during the course of inspection by respondent No. 2 the petitioner had not shown any record of accounts regarding energy generated during period from 5.1.1979 to 20.12.1981. To avail exemption from payment of ....