T.C.Kurian vs. Greater Cochin Development Authority - Kerala High Court, 18 February 2020

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUE AY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941 WP(C).No.16108 OF 2019(K) PETITIONER: T.C.KURIAN AGED 63 YEARS (GOVERNMENT CONTRACTOR), CHERUKUZHIYIL HOUSE, MULANTHURUTHY, ERNAKULAM - 682 314. BY ADVS. SRI.RAJESH NAMBIAR SRI.N.R.SAJ RESPONDENTS: 1 GREATER COCHIN DEVELOPMENT AUTHORITY P. B.NO.2012, KOCHI - 682 020, REPRESENTED BY ITS SECRETARY 2 SUPERINTENDING ENGINEER GREATER COCHIN DEVELOPMENT AUTHORITY, P. B.NO.2012, KOCHI - 682 020 3 THE PRINCIPAL SECRETARY TO GOVERNMENT LSGD (IA) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001 R1 BY ADV. SRI.V.J.MATHEW (SR.) R1 BY SRI.VIPIN P.VARGHESE, SC, GCDA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.16108 OF 2019(K) 2 JUDGMENT Dated this the 18th day of February 2020 This writ petition is filed seeking the following prayers: “(i) Issue a writ of certiorari or any other writ, order or direction quashing Ext.P11, P13 and P15 proceedings. (ii) Issue a writ of mandamus or any other writ, order or direction directing the respondents to forthwith release the amounts retained towards GST. (iii) Declare that the pre-conditions imposed in Ext.P11, P13 and P15 proceedings for release of the retained amount are illegal and bad in law.”

Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the Greater Cochin Development Authority.

It is submitted by the learned counsel for the petitioner that the petitioner had undertaken the work on the basis of Exts.P1 and P2 work orders for the GCDA in connection with FIFA U-17 World Cup matches and that out of the payments due from the petitioner 20% of the contract amount has been retained towards GST. It is

WP(C).No.16108 OF 2019(K) 3 submitted by the learned counsel for the petitioner that by Ext.P5 notification, GST has been exempted in respect of all works directly or indirectly related to any of the events under the FIFA U-17 World Cup, 2017 and that the reductions are now retained only on the plea that a certificate that the work was directly or indirectly related to FIFA U-17 World Cup, 2017 has not been produced by the petitioner from the Director (Sports) Ministry of Sports and Youth Affairs. The learned counsel for the petitioner submits that the respondents have no manner of right to withhold the amounts from the contract amounts due to the petitioner and in view of the fact that there is no dispute that the works were undertaken in connection with the FIFA U-17 World Cup matches as is evident from the work orders themselves, the retention is without any authority whatsoever.

A counter affidavit has been placed on record by the 1st respondent. It is stated therein that the contractor had failed to produce the invoice stating the quantum of GST liability applicable and had issued an invoice on 01.06.2018 with 0% GST mentioned. It is contended that the benefit of GST exemption can be availed only if the petitioner produces a certificate that the work was in

WP(C).No.16108 OF 2019(K) 4 connection with the FIFA U-17 World Cup, 2017. It is stated that even so, since the contracted amount is inclusive of GST, the GST portion of 18% is to be deducted from the total contracted value and the GST invoice with the GST amounts specifically mentioned in it has to be produced.

I have considered the contentions advanced. Ext.P5 is the notification issued on 22.08.2017, exempting services provided by and to FIFA and its subsidiaries directly or indirectly related to any of the events under FIFA U-17 World Cup, 2017, to be hosted in India. The exemption is granted, provided that the Director (Sports) Ministry of Sports and Youth Affairs certifies that the services are directly or indirectly related to any of the events under FIFA U-17 World Cup, 2017. In the above view of the matter, the contention raised in the counter affidavit to the effect that the petitioner has to submit an invoice before the GCDA showing 18% GST as paid is completely erroneous, since Ext.P5 provides for exemption of GST in respect of works directly of indirectly related to the FIFA U-17 World Cup, 2017. The work orders relied on by the petitioner as well as Ext.P4 completion certificate would show that the works were in

WP(C).No.16108 OF 2019(K) 5 connection with the FIFA U-17 World Cup, 2017. The respondent, who is the Authority which had required the carrying out of the work in connection with FIFA U-17 World Cup matches, cannot retain any payments to the petitioner, on the ground that he had not produced the certificate to the effect as provided in Ext.P5 before them. I had fail to see how the amounts can be retained by the authority even in spite of their clear work orders to the effect that the works are in connection with the FIFA U-17 World Cup matches. In the above view of the matter there will be a direction to the respondents to release the withheld amounts to the petitioner, on the petitioner submitting an undertaking to the effect that no liability shall be fastened on the respondent Authority and that GST, if any, found due, shall be paid by the petitioner. The writ petition is ordered accordingly. ANU SIVARAMAN JUDGE SVP

WP(C).No.16108 OF 2019(K) 6 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE WORK ORDER ISSUED BY THE 2ND RESPONDENT DATED 30.05.2016 EXHIBIT P2OF THE WORK ORDER ISSUED BY THE 2ND RESPONDENT DATED 08.05.2017 EXHIBIT P3OF THE WORK ORDER ISSUED BY THE 2ND RESPONDENT DATED 27.03.2017 EXHIBIT P4OF THE COMPLETION CERTIFICATE EXHIBIT P5OF THE NOTIFICATION 21/2017 DATED 22.08.2017 EXHIBIT P6OF THE REPRESENTATION DATED 12.02.2018 EXHIBIT P7OF THE REPRESENTATION DATED 05.04.2018 EXHIBIT P8OF THE CIRCULAR DATED 02.05.2018 ISSUED BY THE SECRETARY, GCDA EXHIBIT P9OF THE REPRESENTATION DATED 16.06.2018 EXHIBIT P10OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA IN W.P.(C) 38433/2018 DATED 27.11.2018 EXHIBIT P11OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 11.02.2019 EXHIBIT P12OF THE NOTIFICATION NO.50/2018-CENTRAL TAX DATED 13TH SEPTEMBER 2018 EXHIBIT P13OF THE LETTER DATED 05.04.2019 ISSUED BY THE 2ND RESPONDENT EXHIBIT P14OF THE NOTICE DATED 02.05.2019 SENT BY THE PETITIONER TO THE 1ST RESPONDENT

WP(C).No.16108 OF 2019(K) 7 21.05.2019 OF THE 1ST RESPONDENT PETITIONER'S/S EXHIBITS: EXHIBIT R2(a) THEOF THE ORDER NO.981/FD6/2017/GCDA DATED 08/02/19