Sajeevan P.A., vs. State Of Kerala - Kerala High Court, 08 January 2020

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNE AY, THE 08TH DAY OF JANUARY 2020 / 18TH POUSHA, 1941 WP(C).No.297 OF 2020(J) PETITIONERS: SAJEEVAN P.A., AGED 47 YEARS, S/O. APPUKUTTAN, PANIKKATTIL HOUSE, PANANGAD P.O., SREENARAYANAPURAM, KODUNGALLUR, THRISSUR DISTRICT. BY ADVS. SRI.LINDONS C.DAVIS SMT.E.U.DHANYA RESPONDENTS: 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, BUILDING DIVISION, THRISSUR - 680020. 3 SUPERINTENDENT OF CENTRAL GST, OFFICE OF THE SUPERINTENDENT OF CENTRAL GST, KONDUNGALLUR RANGE, 4TH FLOOR, EDISON FOUR FIVE, PADAKULAM ROAD, KODUNGALLUR - 680664. SMT.THUSHARA JAMES, GOVT.PLEADER, SRI.SREELAL N.WARRIER, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.297 OF 2020(J) 2 ALEXANDER THOMAS, J. =========================== W.P(C) No.297 of 2020 =========================== Dated this the 08th day of January, 2020 JUDGMENT The case projected in this Writ Petition (Civil) are as follows: The petitioner has completed two construction contracts as per Exts.P1 and P2. The service tax was imposed on the construction works with effect from 01.04.2015. The 1st respondent State Government has issued Ext.P6 order directing the contractors concerned to pay the service tax and then file claim reimbursement for the service tax imposed from 01.04.2015. According to the petitioner, he has paid service tax for the transaction in question and has filed Ext.P8 claim petition before the 2nd respondent seeking reimbursement of the service tax paid by him. But that the request for reimbursement of the service tax amount was rejected by Ext.P5 saying that the amount cannot be released. According to the petitioner, Ext.P5 has been issued on a wrong understanding that the petitioner is seeking the release of the service tax withheld and as a

WP(C).No.297 OF 2020(J) 3 matter of fact, the petitioner has already paid the service tax due to the 3rd respondent Central Authority and as per the norms, the petitioner is only seeking reimbursement of the service tax from the 2nd respondent. That in these circumstances, the petitioner has submitted Ext.P-8 petition dated 24.10.2019 before the 2nd respondent, along with the payment records and along with a copy of Ext.P-5 order. But that till date, the plea of the petitioner for grant of reimbursement of service tax is not made and it is in the light of these facts and circumstances, the petitioner has filed the instant writ petition with the following prayers: “i) to issue a Writ of certiorari or any other appropriate writ, order or direction quashing Exhibit.P5 as unjust and illegal; ii) to issue a Writ of Mandamus or any other appropriate writ, order or direction directing respondents to reimburse an amount of Rs.5,22,282/- towards service tax paid by the petitioner along with interest; iii) to issue a Writ of Mandamus or any other appropriate writ, order or direction, directing the 2nd respondent to consider to pass orders on Ext.P8 by permitting reimbursement of Rs.5,22,282/- to the petitioner; iv) to declare that the petitioner is eligible for reimbursement of Rs.5,22,282/- towards service tax paid by him along with interest as fixed by this Honourable Court; v) to grant such other appropriate Writ or further relief as deemed fit and proper by this Honorable Court on the facts

WP(C).No.297 OF 2020(J) 4 and circumstances of the case.”

Heard Sri.Lindons.C.Davis, learned counsel appearing for the petitioner and Smt.Thushara James, learned Government Pleader appearing for R-1 & R-2 and Sri.Sreelal N.Warrier, learned Standing Counsel for the Central Board of Indirect Taxes appearing for R-3. The petitioner would contend that he has already paid service tax on the works contract executed by him pursuant to the directions contained in Ext.P5 Government Order and that therefore, as per the norms he is eligible to get reimbursement of the service tax paid, etc.

Taking note of the facts and circumstances of the case, it is ordered in the interest of justice that the 2nd respondent will take up the matters raised in Ext.P8 for consideration and after affording reasonable opportunity of being heard to the petitioner, will render a considered decision thereon on the matters raised therein, without much delay, preferably within a period of 6 to 8 weeks, from the date of production of a certified copy of this judgment. In the meanwhile, it is also ordered that the 3rd respondent will furnish a report to the 2nd respondent, as to the correctness of the factual claim made by the petitioner that he has already paid service tax to the 2nd respondent, as

WP(C).No.297 OF 2020(J) 5 referred to in Exts.P3 & P7 and report in that regard may be given by the 3rd respondent to the 2nd respondent, without much delay, preferably within a period of three weeks from the date of production of a certified copy of this judgment. The 3rd respondent will also forward a copy of the said report to the petitioner in advance, in order to enable him to make necessary submissions to the 2nd respondent. Before rendering a considered decision on Ext.P8, the 2nd respondent will also afford reasonable opportunity of being heard to the petitioner and will also take into account the matters that may be stated by the 3rd respondent in his report to be submitted, as aforedirected. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. ALEXANDER THOMAS JUDGE vgd

WP(C).No.297 OF 2020(J) 6 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF MAIN AGREEMENT NO.26/2015- 16/EE(B)TSR DATED 01/07/2015 WITH RESPECT TO CONSTRUCTION OF THREE CLASS ROOMS FOR GOVERNMENT HSS, KARUPADANNA. EXHIBIT P2 COPY OF MAIN AGREEMENT NO.31/15- 16/EE(B)TSR WITH RESPECT TO CONSTRUCTION OF NEW BUILDING FOR ITI, EDATHIRUTHY. EXHIBIT P3 A COPY OF THE DEMAND NOTICE NO. O.C NO.96/2019 DATED 10/05/2019. EXHIBIT P4 A COPY OF THE LETTER DATED 25/06/2019 BY THE PETITIONER TO THE 2ND RESPONDENT. EXHIBIT P5 A COPY OF LETTER DATED 05/07/2019 OF 2ND RESPONDENT. EXHIBIT P6 A COPY OF THE GO(P) NO.87/2017/FIN. DATED 05/07/2017. EXHIBIT P7 A COPY OF THE E-RECEIPT FOR CENTRAL SERVICE TAX PAYMENT DATED 19/06/2019. EXHIBIT P8 A COPY OF THE CLAIM LETTER DATED 24/10/2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.