M/S Liya Infotech (PVT) LTD vs. Karnataka State Small Industries
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Cause title — parties, addresses and appearances
ORAL ORDER
In this petition, the petitioner seeks the following reliefs:
"(A) to direct the respondent to reimburse GST amount paid to an extent of Rs.8,10,77,449/- by petitioner for period 2018-19, 2019-20, 2020-21 till completion of project at rate of 24% interest from date of payment made by petitioner to Government and therefore this Hon'ble Court be pleased to direct the first respondent to refund the GST amount paid by petitioner NC: 2024:KHC:34475 (B) Or Alternatively direct the first respondent to the respondent No.1 to consider the representation made by petitioner at Annexure J."
Heard the learned counsels for the parties and perused the material on record.
In addition to reiterating the various contentions urged in the petition and referring to the material on record, the learned counsel for the petitioner submits that the issue in controversy involved in the present petition is covered by the judgment of the Co-ordinate Bench of this Court in the case of M.G. Arunkumar Vs. The State of Karnataka and Others1, which was followed by this Court in the case of M/s. Green Soul Lifespaces Private 1 W.P.No.104908/2023 disposed of on 29.08.2023 2 W.P.No.25071/2023 disposed of on 02.04.2024 NC: 2024:KHC:34475
As rightly contended by the learned counsel for the petitioner in the case of M/s. Green Soul Lifespaces Private Limited (supra), this Court upheld the claim of the writ petitioner therein by following the earlier judgment in M.G.Arunkumar's case and held as under:
"
In this petition the petitioner seeks the following reliefs:
a. To direct the respondent to reimburse GST amount paid by the petitioner for period 24.05.2019 onwards till completion of project and also at rate of 24% interest from date ofpayment made by petitioner to Government and therefore this Hon’ble Court be pleased to direct the first respondent to refund the GST amount paid by petitioner. b. Or alternatively direct the first respondent to consider the representations dated 07.08.2023, 05.01.2023, 06.12.2022, 15.09.2022, 07.09.2022, 02.08.2022, 03.02.2022 and 20.04.2021 produced as Annexure- E, F, G, H, J, K, L and M.
Heard learned counsel for petitioner and learned counsel for respondents. NC: 2024:KHC:34475
In addition to reiterating the various contentions urged in the petition and referring to the material on record learned counsel for petitioner invited my attention to the short term tender notification dated 01.02.2019 in order to point out that the same stipulates that GST shall be paid by the petitioner to the tender amount separately pursuant to which a work order dated 24.05.2019 was issued wherein rate was shown excluding the GST. It is submitted that the fact that rates quoted by the petitioner was exclusive of GST is also confirmed by general notice to the SR of Civil Works, Shivamogga, for the year 2018-19 (Annexure Q) wherein it is stated that GST at 12% shall be added separately as per Government letter dated 11.10.2018 and a separate clause mentioning that GST shall be paid to the tendered amount separately is to be published. It is also pointed out that the petitioner having paid the GST, respondents had reimbursed the said GST towards four running bills and subsequently when the respondents refused to reimburse the GST for the remaining bill amounts and illegally purported to deduct the earlier amounts paid from the bills payable to the petitioner, petitioner is before this Court by way of present petition .
Per contra learned counsel for respondents invited my attention to the schedule agreement at Annexure – C dated 24.05.2019 entered into between the petitioner and respondent No.1 in order to point out that clause 36 of the said agreement stipulates that rates NC: 2024:KHC:34475 to be quoted by the contractor must be inclusive of sales tax/VAT and no extra demand on this count shall be made by the contractor. In this context, it is submitted that after coming into force of the GST regime with effect from 01.07.2017, the question of payment of sales tax/VAT would not arise and said expression `sales tax/VAT’ is a misnomer and same would refer to GST W.P. No. 104908/2023 dated 29.08.2023. 6. A perusal of the material on record, in particular the cumulative effect of the short term tender notification dated 01.02.2019 containing clause C to note No. 1 which stipulates that GST shall be paid to the NC: 2024:KHC:34475 tendered amount separately as per Rules and applicable Government Orders and notice to the tender notification as well as the work order and other documents will clearly indicate that the rate quoted by the petitioner was exclusive of GST and did not include the same as contended by respondent No.
So also, merely because Clause 36 of the scheduled agreement includes sales tax and VAT, in the absence of any material to show that sales tax and VAT include GST also and that the rates quoted by the petitioner include GST, I am of the considered opinion that respondent No.1 is liable to reimburse the GST paid in favour of the petitioner. It is also significant to note that respondent No. 1 had already reimbursed the GST on four running bills of the petitioner and only reason assigned by the respondent No.1 in its objection dated 28.10.2020 (Annexure R-1) is to the effect that it will cause huge burden on respondent No.1 which is not sustainable in law. It is needless to state that huge burden being caused to respondent No.1 on account of GST reimbursement in favour of the petitioner cannot be made a basis for respondent No.1 to avoid its liability to reimburse GST payable in favour of the petitioner.
As rightly contended by the learned counsel for petitioner, in the case of M.G. Arunkumar (supra), under identical circumstances, this Court held as under:
“5. It is not in dispute that the entire tender process and allocation of work by NC: 2024:KHC:34475 respondent/Department is post coming into force of Goods and Services Tax. If petitioner, who is a registered Civil Contractor has completed the tender work, respondent/Department being a service recipient is under bounden duty to reimburse GST amount of Rs.2,16,51,903/- in terms of Section 13 of The Central Goods and Services Tax Act, 2017. It is also not in dispute that petitioner, who is a class-I contractor having rendered service, is under mandatory duty to pay GST amount to the department. Equally respondent/Department is under bounden duty to reimburse the GST amount. It is borne out from the records that since necessary payment at the petitioner's end the applicable GST being statutory requirement, the respondent/Department ought to have reimbursed 12% GST amount on the total work done by petitioner. Since, there is total inaction on the part of respondent/Department, this is a fit case where mandamus needs to be issued. For the reasons stated supra, I proceed to pass the following: ORDER i) Writ petition is allowed. ii) The respondent is hereby directed to reimburse GST amount as indicated in the NC: 2024:KHC:34475 representation dated 15.04.2023 vide Annexure-E. iii) The respondent/Department shall reimburse the said amount within a period of six weeks from the date of receipt of copy of this order.”
In view of the aforesaid facts and circumstances, I am of the considered opinion that respondent No. 1 would have to be held liable to reimburse the GST to the petitioner on all its bills as per Annexure-N, within a stipulated time frame.
In the result, the following; O R D E R i. Writ petition is hereby allowed. ii. Respondent No.1 is hereby directed to reimburse GST paid by the petitioner as detailed/enumerated in Annexure N within a period of 2 months from the date of receipt of copy of this order."
The aforesaid judgments of this Court in the cases of M.G.Arunkumar and M/s. Green Soul Lifespaces Private Limited are directly and squarely applicable to the facts of the instant case and the petitioner would be entitled to reimbursement of the GST from the respondent No.
However, in order to enable the respondent No.1 to consider the claim of the petitioner, the NC: 2024:KHC:34475 petitioner is to be directed to submit one more representation within a period of two [2] weeks from today and necessary directions are to be issued in this regard.
In the result, the following: ORDER
I. The writ petition is disposed of in terms of M.G.Arunkumar and M/s. Green Soul Lifespaces Private Limited.
II. The petitioner is directed to submit a fresh representation together with relevant documents indicating the GST remitted by the petitioner within a period of one [1] week from today.
III. Immediately upon the petitioner submitting a fresh/new representation as stated supra, the respondent No.1 shall consider the claim of the petitioner pursuant to the representation at Annexure-J dated 22.01.2024 as well as the representation to be submitted by the petitioner as stated supra bearing in mind the decisions in NC: 2024:KHC:34475 M.G.Arunkumar and M/s. Green Soul Lifespaces Private Limited and proceed further in accordance with law within a period of six [6] weeks from the date of submission of the fresh representation by the petitioner. (S.R.KRISHNA KUMAR) JUDGE
RB
Reproduced from the public record of the Karnataka High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.