Mariya Constructions vs. Kerala Water Authority - Kerala High Court, 28 May 2020

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL THUR AY, THE 28TH DAY OF MAY 2020 / 7TH JYAISHTA, 1942 WP(C).No.10485 OF 2020(I) PETITIONER/S: MARIYA CONSTRUCTIONS REPRESENTED BY ITS MANAGING PARTNER, JOSE K.L., AGED 64 YEARS, S/O.LOUIS, 14/1375 KAKKANATI, THOTTILPEEDIKA, CHEVARAMBALAM P.O., KOZHIKODE-673

017.

BY ADV. SRI.JOBY JACOB PULICKEKUDY RESPONDENT/S: 1 KERALA WATER AUTHORITY REPRESENTED BY THE MANAGING DIRECTOR, JALABHAVAN, THIRUVANANTHAPURAM-695 033. 2 THE SUPERINTENDING ENGINEER, KERALA WATER AUTHORITY, PH CIRCLE, KANNUR-670 622. 3 THE EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, WATER SUPPLY DIVISION, KANNUR-670 622. OTHER PRESENT: SRI BENJAMIN PAUL SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.10485 OF 2020 2 J U D G M E N T Dated this the 28th day of May, 2020 Through instant writ petition indulgence of this court has been sought for issuance of a direction in the nature of mandamus commanding respondents to calculate the Goods and Service Tax due to the petitioner and its disbursement.

In support of above mentioned prayer, it has been alleged that the petitioner firm is engaged in contract works for Kerala Water Authority and had entered into a partnership deed dated 14.03.2001 Ext.P1. Respondents invited tenders for execution of certain work which was participated by the petitioners and various other persons and the petitioner was found to be successful resulting into an agreement dated 01.08.2018 entered into

WP(C).No.10485 OF 2020 3 between the petitioner and the second respondent Ext.P2. Petitioner completed and commissioned the work on 13.02.2019 and also received

a completion

and commission certificate from the concerned Assistant Engineer Ext.P3. 3. learned counsel appearing on behalf of the petitioner submits that Goods and Service Tax was introduced with effect from 01.07.2017 and the agreement did not contain the payment of GST on behalf of the tenderer. Petitioner made the payment inclusive of the GST but the said amount has not been reimbursed and in this regard, submitted representation dated 11.03.2020 Ext.P5 evidenced by postal receipt Ext.P6, but no action has been taken. In support of the aforementioned contention, attention of this court has been drawn to the circular dated 10.08.2017 Ext.P4 whereby a

WP(C).No.10485 OF 2020 4 clarification has been issued that difference between the GST paid and the sum of the taxes subsumed under the GST applicable at the time of the bidding shall be absorbed by Kerala Water Authority on the production payment receipt of GST on the respective items executed under the tender. The rate and the tax differences require additional payment or recovery as the case may be.

Issue notice before admission. Learned counsel Shri.Saji Varghese representing Adv.Benjamin Paul present in the video conference accepts notice on behalf of the 1st respondent and submits that it is yet to be verified whether the petitioner, in support of the circular submitted any GST receipt enabling him for reimbursement but would not be averse for due consideration in accordance with law.

WP(C).No.10485 OF 2020 5

Having heard the counsel for the parties and perused paper book, without commenting on the merits and keeping in view the circular dated 17.08.2017, which has not been disputed by either side, wherein the difference between GST paid and the sum of all taxes subsumed under GST applicable at the time of the bidding has undertaken to be absorbed by Kerala Water Authority, I am of the view that the Writ Petition can be disposed of by issuing a direction to the respondents to take a call on the representation dated 11.03.2020 Ext.P5 by affording an opportunity of hearing to the petitioner who will be able to produce all the receipts in claiming the reimbursement. In case such material is placed, the Authority shall take into consideration all the

WP(C).No.10485 OF 2020 6 materials and pass an order thereon in accordance with law.

In case the respondents authority finds the case of the petitioner to be justified, the consequential reimbursement be paid within a reasonable period. The entire exercise is ordered to be done within a period of 2 months and in case of favourable order, the payment to be made within another one month. The writ petition stands disposed of. AMIT RAWAL JUDGE SM

WP(C).No.10485 OF 2020 7 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 THE PHOTOCOPY OF THE PARTNERSHIP DEED DATED 14.03.2017. EXHIBIT P2 THE PHOTOCOPY OF THE AGREEMENT DATED 01.08.2018 SIGNED BY THE PETITIONER AND THE 2ND RESPONDENT. EXHIBIT P3 THE PHOTOCOPY OF PERFORMANCE AND EXPERIENCE CERTIFICATE ISSUED BY THE ASSISTANT ENGINEER, KERALA WATER AUTHORITY WATER SUPPLY SECTION NO.1, PERALASSERY, KANNUR. EXHIBIT P4 THE PHOTOCOPY OF THE CIRCULAR NO.GST/002/17 DATED 10.08.2017 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P5 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 11.03.2020 SUBMITTED TO THE 1ST RESPONDENT. EXHIBIT P6 POSTAL RECEIPT ISSUED BY THE POSTAL DEPARTMENT.