Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 18TH DAY OF JANUARY 2023 / 28TH POUSHA, 1944 WP(C) NO. 32250 OF 2022 PETITIONER:
K.K. SHYJU AGED 45 YEARS , S/O KUNJAVAREETH, KARIPPAI HOUSE,MOTHIRAKANNI P.O., THOOMBAKODE, CHALAKUDY, THRISSUR DISTRICT, PIN - 680307 BY ADV JOHN MATHEW (THEREZHATH) RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM, PIN - 695001 3 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 4 THE CHIEF ENGINEER PUBLIC WORKS DEPARTMENT (ROADS DIVISION) PUBLIC HOUSE, THIRUVANANTHAPURAM, PIN - 695033 5 SUPERINTENDING ENGINEER PUBLIC WORKS DEPARTMENT (ROAD DIVISION), GOVT. OF KERALA, ALUVA CIRCLE, ERNAKULAM DISTRICT, PIN - 683101 6 THE EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT (ROADS DIVISION), CHEMBUKAVU, THRISSUR, PIN - 680020 7 THE ASSISTANT EXECUTIVE ENGINEER PUBLIC WORK DEPARTMENT (ROADS SUB DIVISION), IRINJALAKUDA, THRISSUR DISTRICT, PIN - 680121 8 THE ASSISTANT ENGINEER PUBLIC WORK DEPARTMENT (ROADS SUB DIVISION), CHALAKKUDY, THRISSUR DISTRICT, PIN - 680309 9 THE SUPERINTENDENT OF CENTRAL TAX AND CENTRAL EXCISE THE OFFICE OF THE SUPERINTENDENT OF CENTRAL TAX AND CENTRAL EXCISE, CHALAKUDY RANGE, FIRST FLOOR, MAJESTIC TOWERS, NEAR HEAD POST OFFICE, CHALAKUDY, PIN - 680307 10 THE COMMERCIAL TAX OFFICER ON WORKS CONTRACT (GST), THRISSUR DISTRICT, PIN - 680101 11 THE STATE TAX OFFICER, (INTELLIGENCE OFFICER),
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SQUAD NO. 11, STATE GST DEPARTMENT, TAX COMPLEX, POOTHOLE P.O., THRISSUR DISTRICT, PIN - 680004 12 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM, PIN - 695001 OTHER PRESENT:
ADV. THUSHARA JAMES (SR GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT The petitioner is a contractor, who executed certain works for the Public Works Department (for short, “the PWD). It is the case of the petitioner that the petitioner is entitled to compensation of the amount of Goods and Services Tax (for short, “GST”) demanded on the works completed by the petitioner for the PWD in terms of certain circulars/instructions issued by the Government of Kerala/PWD regarding the reimbursement of GST on works tendered prior to coming into force of GST and completed after the GST laws came into force. It appears that the Superintending Engineer of the PWD has sent Ext.P8 communication to the Senior Finance Officer in the office of the Chief Engineer of the PWD at Thiruvananthapuram requesting for clarification on the question as to whether the petitioner is actually entitled to the reimbursement of any amount towards GST.
2. The learned counsel appearing for the petitioner
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submits that no further decision has been taken on Ext.P8 by the Senior Finance Officer. It is submitted that in the meanwhile the petitioner is being proceeded against by the GST Department for non-payment of GST and non-filing of returns. Reference is made in this regard to Ext.P11 communication issued by the 9th respondent. The learned counsel prays that further proceedings pursuant to Ext.P11 may be kept in abeyance till a decision is taken in the matter by the concerned authority of the PWD.
3. Having heard the learned counsel appearing for the petitioner and the learned Senior Government Pleader appearing for respondents 1 to 8, 10, and 11, I am of the view that a direction can be issued to the Senior Finance Officer,
office
of
the
Chief
Engineer,
PWD, Thiruvananthapuram to consider Ext.P8 letter issued by the Superintending Engineer and take a decision on the question as to whether the petitioner is entitled to any reimbursement of GST in respect of the works completed by him for the PWD.
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4. The Senior Finance Officer is, therefore, suo moto impleaded as additional 12th respondent to this Writ Petition. The additional 12th respondent can be directed to take a decision as directed above, after affording to the petitioner an opportunity of being heard. While taking a decision, the additional 12th respondent can also be directed to have due regard to any circulars issued by the Government of Kerala/PWD has also to the terms of the contract/tender under which the petitioner was awarded the work in question. I do not deem it necessary to stay further proceedings pursuant to Ext.P11 as Ext.P11 letter is not a notice issued by the concerned authority for cancellation of registration and it is only an intimation informing the petitioner that steps for cancellation will be taken if the petitioner does not file the returns and pay the tax within the time specified under the GST laws.
5. In the light of the above, this Writ Petition will stand disposed of directing the additional 12th respondent to take a decision on Ext.P8, after affording an opportunity of
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hearing to the petitioner within a period of six weeks from the date of receipt of a certified copy of this judgment. The additional 12th respondent shall have due regard to the circulars, etc issued by the Government of Kerala/PWD regarding reimbursement of GST. The additional 12th respondent shall also have regard to the terms of the tender/contract under which the works were awarded to the petitioner.
The Writ Petition is disposed of as above.
Sd/- GOPINATH P.
JUDGE RMV
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APPENDIX OF WP(C) 32250/2022 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE LETTER OF ACCEPTANCE DATED 29/11/2018 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER ExhibitP2 THE TRUE COPY OF THE RELEVANT PART BILLS PAID BY THE 6TH RESPONDENT TO THE PETITIONER ExhibitP3 THE TRUE COPY OF THE DETAILED ESTIMATE PREPARED IN RESPECT OF THE EXT.P1 TENDER ExhibitP4 THE TRUE COPY OF THE CIRCULARS DATED 14.12.2017 ISSUED BY THE GOVERNMENT Exhibit4(a) THE TRUE COPY OF THE CIRCULARS DATED 01.03.2019 ISSUED BY THE GOVERNMENT Exhibit P5 HE TRUE COPY OF THE REPRESENTATION DATED 20/11/2020 SUBMITTED BY THE PETITIONER TO THE RESPONDENTS 6 TO 8 Exhibit P6 THE TRUE COPY OF THE LETTER BEARING NO S3 - 3407 / 2018 DATED 22/10/2020 ISSUED BY THE 8TH RESPONDENT ExhibitP7 THE TRUE COPY OF THE LETTER BEARING NO D 1 - 3407 / 2018 DATED 02/11/2020 ISSUED BY 7TH RESPONDENT ExhibitP8 THE TRUE COPY OF THE LETTER BEARING NO DT3 - 3407 / 2018 DATED 11/01/2021 FORWARDED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT ExhibitP9 THE TRUE COPY OF THE NOTICE DATED 22/07/2022 ISSUED BY THE 9TH RESPONDENT TO THE PETITIONER ExhibitP10 THE TRUE COPY OF THE REPLY LETTER DATED 10/01/2022 ISSUED BY THE PETITIONER TO THE 9TH RESPONDENT ExhibitP11 THE TRUE COPY OF THE NOTICE BEARING NO - O.C. NO 76 / 2022 DATED 31/08/2022 ISSUED BY THE 9TH RESPONDENT TO THE PETITIONER Exhibit P12 THE RELEVANT BID DOCUMENTS ISSUED BY THE PWD DEPARTMENT IN RESPECT OF THE CONSTRUCTION OF ROAD FROM PATHADIPALAM TO ADICHIL THOTTI COLONY IN CHALAKKUDY VIDE GO (P) NO - 3/2017/PWD DATED 9/08/2017 Exhibit P13 THE TRUE COPY OF THE NOTICE ISSUED BY THE PWD FOR INVITING THE TENDER DATED 01/09/2018 Exhibit P14 THE TRUE COPY OF THE ONLINE GST REGISTRATION STATUS OF THE PETITIONER AS ON 11/01/2023 RESPONDENTS' EXHIBITS:NIL TRUE COPY P.A.TO JUDGE