Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN WEDNESDAY, THE 1ST DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944 WP(C) NO. 23856 OF 2022 PETITIONER:
C.P.SANGEETH, AGED 47 YEARS PROPRIETOR, POWERLINE CONSULTANTS, IDA 1/248, MES SOUTH VAZHAKULAM, ALUVA, ERNAKULAM DISTRICT, PIN-683112.
BY ADVS.
R.MURALEEDHARAN K.P.JOSE PIOUS RESPONDENTS:
1 THE REGISTRAR, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, KALADY P.O., ERNAKULAM DISTRICT,PIN- 683574.
2 THE VICE CHANCELLOR, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, KALADY P.O., ERNAKULAM DISTRICT, PIN- 683574.
BY ADV SHRI.DINESH MATHEW J.MURICKEN, SC, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.11.2022, THE COURT ON 01.02.2023 DELIVERED THE FOLLOWING:
W.P.(C). 23856/2022 2 JUDGMENT Dated this the 1st day of January, 2023 The Sree Sankaracharya University of Sanskrit invited online bids for purchase and installation of 300 KVA diesel generator set and suitable load sharing panel from registered bidders of PWD/CPWD/MES etc. Out of the three bids, the petitioner's bid was the lowest and his quote was 11.13% less than the actual estimated amount. The petitioner was awarded the contract and during the course of the work, he also entrusted with certain additional works also. While executing the work, the petitioner submitted running bills for the supply and service of each item. As against the total bill of Rs.52,87,385.30 with GST @ 18%, an amount of Rs.47,55,990/- alone was paid. Therefore, the petitioner requested to release the balance amount of Rs.4,94,486/- due towards GST payable, after setting of TDS collected @ 2%, and the amount deducted towards workers' welfare fund.
Thereupon, a further amount of Rs.1,06,371/- was released by
W.P.(C). 23856/2022 3 the respondent. Again the petitioner submitted a request seeking release of the balance amount and the first respondent rejected the request by Ext. P13. In Ext. P13 the reason stated is in the University there is no practice of paying GST on service contracts and for supply of the generator set, the GST had been paid. Aggrieved by the refusal to release the amount payable towards GST, this writ petition is filed seeking the following reliefs;
(a) issue a writ of mandamus or any other appropriate writ or order directing the 1st and 2nd respondents to pay the balance outstanding in the Bills submitted by the petitoner forthwith;
(b) declare that Sree Sankaracharya University of Sanskrit, Kalady is liable for payment of applicable Goods and Services Tax for the Goods or Services availed by them as per Ext..P1, P4 and P5 proceedings and as per the Invoices issued by the petitioner.
2. Adv. R. Muraleedharan, learned counsel for the petitioner contended that, Ext. P3 estimated cost declared by the first respondent was without taxes. Nowhere in the notice inviting quotations for the supply of goods and services it was specified that the bids should be inclusive of all applicable taxes. As per Section 9 of the Goods and Services Tax Act
W.P.(C). 23856/2022 4 tax is leviable on all intra-State supplies of goods or services or both, except alcoholic liquor. As such the University is statutorily bound to pay the GST remitted by the petitioner.
Moreover, having paid the full amount for the supply of generator set including GST @ 18% the University is estopped from refusing payment of applicable GST for the services.
3. Adv. Dinesh Mathew. J. Muricken, learned Standing Counsel for the University submitted that, in Ext.R1(b) tender document it is specifically stated that the bidders should quote the amount including all taxes. In this regard, attention is drawn to Clause 11(f) of the General Conditions of Tender, which stipulates that all rates quoted should be inclusive of sales tax also. It is contended that, after participating in the tender and securing the contract, petitioner cannot claim the GST amount in addition to the amount quoted by him. Had the petitioner specified that his quote was without GST, some other bidder, whose quote was inclusive of GST, would have been awarded the contract. For supply of the diesel generator payment was made inclusive of 18% GST since generator falls under the category of supply of goods. For that
W.P.(C). 23856/2022 5 reason, the University is bound to pay GST on other electrical works included in the contract. The petitioner was fully aware of this fact and had accepted the second and final part payments without GST. Being so, this writ petition claiming GST can be perceived only as an experimental litigation.
4. In reply, counsel for the petitioner contended that the tender schedule issued by the University did not contain provision for including GST and as per Clause 5 of the General Conditions, the bidders are prevented from correcting the entries in the tender schedule. As such, the petitioner could only submit his tender schedule without including GST.
5. As rightly pointed out by the Standing Counsel, Clause 11(f) of the General Conditions of Tender specifically stipulate that all rates quoted should be inclusive of sales tax also. After introduction of the GST regime, the term sales tax has to be understood as goods and service tax. Thus, the tender document provided for inclusion of goods and service tax. Moreover, payment towards the second and final part were accepted by the petitioner without GST. Any doubt regarding inclusion of GST or otherwise, ought to have been
W.P.(C). 23856/2022 6 cleared before participating in the bid. Instead, petitioner chose to participate and is questioning the terms in the tender document, after securing the contract and executing the work.
It is settled law that after participating in a tender process, bidder cannot turn around and challenge the conditions in the bid document. Even otherwise, the factual disputes involved cannot be decided in a writ petition under Article 226.
For the aforementioned reasons, this writ petition is dismissed.
Sd/- V.G.ARUN JUDGE sb
W.P.(C). 23856/2022 7 APPENDIX OF WP(C) 23856/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT. DATED 19.01.2018.
Exhibit P2 TRUE COPY OF THE COMMUNICATION GIVEN TO THE PETITIONER BY THE 1STS RESPONDENT DATED 19.01.2018 Exhibit P3 TRUE COPY OF THE STATEMENT OF PARTICULARS OF WORKS TO BE DONE AND ITS ESTIMATED COST, ISSUED BY THE 1ST RESPONDENT.
Exhibit P4 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 01.06.2018, ENTRUSTING ADDITIONAL WORKS.
Exhibit P5 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 04.02.2019, ENTRUSTING ADDITIONAL WORKS.
Exhibit P6 TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT, DATED 09.08.2018.
Exhibit P7 TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT, DATED 18.09.2019.
Exhibit P8 TRUE COPY OF THE RELEVANT PAGES OF E-PASS BOOKS EVIDENCING PAYMENTS.
Exhibit P9 TRUE COPY OF THE REQUEST MADE BY THE PETITIONER FOR PAYMENT OF BALANCE OUTSTANDING, DATED 19.02.2019.
Exhibit P10 TRUE COPY OF THE REQUEST MADE BY THE PETITIONER FOR PAYMENT OF BALANCE OUTSTANDING DATED 19.09.2019.
Exhibit P11 TRUE COPY OF THE REMINDER MADE BY THE PETITIONER FOR PAYMENT OF BALANCE OUTSTANDING DATED 18.10.2019.
W.P.(C). 23856/2022 8 Exhibit P12 TRUE COPY OF THE REQUEST MADE BY THE PETITIONER FOR PAYMENT OF BALANCE OUTSTANDING DATED 30.11.2019.
Exhibit P13 TRUE COPY OF THE COMMUNICATION GIVEN BY THE 1ST RESPONDENT DECLINING PAYMENT DATED 23.03.2020.
Exhibit P14 TRUE COPY OF THE REQUEST MADE BY THE PETITIONER FOR PAYMENT OF BALANCE OUTSTANDING DATED 02.02.2022.
RESPONDENT EXHIBITS Exhibit R1(a) True copy of e-tender advertisement dated 03.11.2017 inviting tenders for installing 300KVA diesel generator set and load sharing panel Exhibit R1(b) True copy of tender document for the work of "installation of 300KVA diesel generator set and load sharing panel" Exhibit R1(c) True copy of contract entered between the petitioner and 1st respondent University dated 06.03.2018 Exhibit R1(d) True copy of AOC summary issued to the petitioner dated 18.04.2018 Exhibit R1(e) True copy of order No.Engg/13829/SSUS/2015 dated 31.03.2018 issued by the 1st respondent Exhibit R1(f) True copy of order No. Engg/13829/SSUS/2015 dated 09.08.2018 issued by the 1st respondent PETITIONER EXHIBITS Exhibit P15 TRUE COPY OF THE ORDER QUOTATION SUBMITTED BY THE PETITIONER FOR ONE OF THE SUPPLEMENTARY WORK, 22/12/2018.
Exhibit P16 TRUE COPY OF THE TAX INVOICE RAISED BY THE PETITIONER DATED 04/02/2019.