M/S.Maa Vaishno Devi Construction vs. The Executive Enginner,Bbsr R And B Division-Iv,Bbsr
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Heard together (2 matters)
Read from the judgment's own cause title. This page is filed under one of them.
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22.02.2021
Heard Miss Kananbala Roy Choudhury, learned Counsel for the Petitioner, Mr. P. K. Muduli, learned Additional Government Advocate and Mr. Sunil Mishra, learned counsel for CT & GST.
There are two prayers in this writ petition. The first is for a direction to the Opposite Party No.1 i.e. the Executive Engineer (R & B) Division-IV, Bhubaneswar to reimburse the Petitioner the balance amount payable under the GST Act in terms of representation made on 28th December, 2018 pursuant to an order passed by this Court on 12th December, 2018 in W.P.(C) No.12575 of 2018. 3. The second prayer is that no coercive action be taken against the Petitioner pursuant to the notice issued on 10th April 2019 by the CT and GST Officer calling upon the Petitioner to explain why its registration should not be cancelled for not filing GST returns for a continuous period of six months.
As regards the second prayer Mr. Mishra, learned counsel appearing for CT & GST Department points out that it is not the Petitioner’s case that it is not liable to file CT & GST returns, and therefore, there can be no basis for the said prayer. W.P.(C) No.7956 of 2019
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Miss Roy Choudhury, learned counsel for Petitioner clarifies that the Petitioner is not pressing the prayer in relation to Annexure-3 and accordingly gives up the second prayer.
As regards the first prayer, Miss Roy Choudhury refers to the earlier counter affidavit filed on behalf of Opposite Party Nos.1 and 2 on 4th December, 2019 taking the stand that the task of determining the differential GST, i.e. segregating labour, material, etc. is of the TDS Authority and not within the competency of Opposite Party No.
She submits that the directions issued by this Court on 12th December, 2018 setting out in detail the revised guidelines dated 10th December 2018 issued by the Finance Department, Government of Odisha have not been complied with by Opposite Party No.1. 7. Mr. P.K. Muduli, learned Additional Government Advocate appearing for Opposite Party No.1 has drawn the attention of this Court to a reply filed to I.A. No.3092 of 2020 on 23rd December, 2020 where it has been explained in detail how Opposite Party No.1 has complied with the order dated 12th December, 2018 of this Court; how it has applied the revised guideline dated 10th December, 2018 and determined that far from the Opposite Party No.1 having to reimburse the Petitioner
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any amount on account of GST, it is the Petitioner which owes Opposite Party No.1 a certain sum as indicated therein. Thus it seen that notwithstanding the stand taken in an earlier affidavit, it is evident that Opposite Parties 1 and 2 claim to have in fact proceeded on the basis of the guideline dated 10th December, 2018. 8. When confronted with the above affidavit, Miss Roy Choudhury first stated that the Petitioner disputes the manner of calculation and secondly, doubts whether, in fact, the revised guidelines have been applied correctly by Opposite Party No.
She sought time to file a further reply to the affidavit of Opposite Party No.1. 9. The Court is not inclined to accept the above plea of the Petitioner. The question whether, in fact, any amount is owed to the Petitioner by Opposite Party No.1 on account of GST deducted from its bills or vice versa, has become a highly disputed question of fact. The claim of the Petitioner ultimately, in simple terms, is one for money which it seeks as reimbursement from Opposite Party Nos.1 and 2. It is not possible for this Court in its writ juri iction under Article 226 of the Constitution to calculate on a case by case basis which component of the work executed by the Petitioner for Opposite Party Nos.1 and 2 is amenable for reimbursement on account of GST
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and which is not. This being a disputed question of fact, the Court declines to undertake this exercise in the writ juri iction and leaves it to the Petitioner to seek other appropriate remedies available to the Petitioner in accordance with law. In such proceedings it would be open to either of the parties to rely on the pleadings of the present petition.
The writ petition is disposed of in the above terms.
An urgent certified copy of this order be supplied as per rules.
(Dr. S. Muralidhar) Chief Justice
(B. P. Routray) Judge M.K.Panda/ K. Majhi
Reproduced from the public record of the Orissa High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.