M/S Venkata Panduranga Constructions vs. State Of Odisha

This matter is taken up by hybrid mode.

Heard.

The petitioner has filed this writ petition seeking to quash the corrigendum dated 09.01.2018 issued by opposite party no.3 under Annexure-5 and to issue direction to opposite parties no.1 to 4 to reimburse the additional tax which has already been deducted from its running bills and to be deducted from final bills after coming into force of the Goods and Service tax, as per the claim of the petitioner and in view of the office memorandum dated 10.12.2018 under Annexure-6. 4. Mr. S.K. Dalai, learned counsel appearing for the petitioner contended that opposite party no.3 floated a tender under Annexure-1 for construction of Roads and Bridges and routine maintenance of rural roads under Pradhan Mantri Gram Sadak Yojana (PMGSY) Scheme for the year 2016-17. Pursuant to the said tender call notice, the petitioner participated in the process of tender and was selected and executed the work. It is contended that as per clauses-18 and 19 of the tender documents, the rate quoted by the contractor shall be excluding GST and the GST as applicable for the work contract shall be payable to the contractor on each bill amount on production of tax invoice; and that the prevailing rate of GST on the gross amount of bill will be deducted from the contractor bill as tax deduction at source (TDS), as per rule. It is contended that adhering the above conditions, the tax has to be paid by the petitioner. But, when the matter stood thus, a corrigendum has been issued by the authority on 09.01.2018 under Annexure-5, by which it has been informed that the contractor shall quote inclusive of royalties, all taxes including Goods and Services Tax (GST), as per applicable law. It is contended that once the tender has been floated, now the rule of game cannot be changed by issuing corrigendum, which is arbitrary, unreasonable and contrary to the provisions of law.

Mr. J.M. Pattnaik, learned counsel appearing for opposite parties no.3 and 4 contended that once the petitioner has participated in the process of the tender pursuant to the tender call notice issued by the authority under Annexure-1, it is bound by the terms and conditions mentioned therein. It is further contended that even if corrigendum has been issued subsequently, the petitioner is liable to pay the GST amount, which has been deducted from its running bill and kept in a separate account because of pendency of the writ petition.

Having heard learned counsel for the parties and after going through the records, this Court finds that payability of GST amount is under consideration, which emanates from the terms and conditions of the contract floated in the tender documents and subsequently corrigendum issued by the authority. Thereby, any dispute with regard to payment of tax, which forms part of the tender documents, can only be resolved as per the terms and conditions prescribed in the tender documents. Since there is disputed questions of fact with regard to payment of GST amount, the same can be resolved by the competent forum in terms of the DTCN/agreement executed between the parties and, as such, this Court is not inclined entertain this writ petition. However, the petitioner is permitted to approach the appropriate forum in terms of the DTCN/agreement, which is applicable to it for realization of GST amount, pursuant to the tender call notice issued by the authority under Annexure-1 and corrigendum under Annexure-5. Needless to say, the petitioner has also relied upon clause-41.1 of the tender documents. Therefore, any claim made by the petitioner that should be adjudicated by the authority on the basis of the terms and conditions of the tender documents.

The writ petition is accordingly disposed of.