M/S Kunal Bsbk Joint Venture PVT. LTD. vs. Chhattisgarh Housing Board

Held

The Court dismissed the writ petition primarily on the ground of non-maintainability. The Court noted that the petitioner had not challenged the subsequent orders passed by the respondent Board, specifically the order dated 2.5.2024, which rejected the petitioner's representation for GST reimbursement. The Court observed that the petitioner had previously filed a writ petition which was disposed of with a direction to the respondent's committee to decide the claim. Following this, the committee passed an order on 2.5.2024 rejecting the claim. The present writ petition was filed after this rejection order, but the petitioner failed to assail the legality, validity, or propriety of this order. The Court held that when a subsequent decision rejecting the claim has not been questioned or challenged in the writ petition, no relief can be granted. Therefore, the writ petition was dismissed. However, liberty was reserved to the petitioner to challenge the decision dated 21.12.2017 and 2.5.2024.

Facts

The petitioner, M/s Kunal Bsbk Joint Venture Pvt. Ltd., a contractor, filed a writ petition against the Chhattisgarh Housing Board (respondent) for failing to reimburse Goods and Services Tax (GST) charged on bills. The contract, awarded in 2015 for constructing housing units under government schemes, initially had rates inclusive of taxes. Clause 2.14F stipulated that service tax would not be applicable to EWS and LIG houses, and if applicable, it would be reimbursed. With the introduction of GST in 2017, the exemption was withdrawn, making the services taxable. The petitioner paid GST, sought reimbursement from the respondent, and submitted claims. A committee constituted by the respondent rejected the petitioner's claim for GST reimbursement, citing the contract's inclusive rate clause and the absence of a specific clause for GST reimbursement, while acknowledging reimbursement for service tax. The petitioner had previously filed a writ petition which was disposed of with a direction to the committee to decide the claim within 60 days. The committee's subsequent rejection order dated 2.5.2024 was not challenged in the present writ petition.

Key Issues

1. Whether the petitioner is entitled to reimbursement of GST charged on services provided to the respondent, considering the contractual clauses and the transition from service tax to GST? (Question of mixed law and fact, turning on Clause 2.14A, Clause 2.14F, Clause 11.2 of the tender document, Section 142(10) of the GST Act, 2017, and Article 246A and 279A of the Constitution). Petitioner's arguments: The petitioner contended that the GST is a subsumed tax of service tax, and therefore, Clause 2.14F, which allows for reimbursement of service tax if applicable, should extend to GST. They argued that Section 142(10) of the GST Act mandates taxability of services provided under pre-GST contracts. They also relied on Section 171 of the GST Act regarding passing on the benefit of input tax credit and Section 49(9) which deems the incidence of tax to be passed on to the recipient. The petitioner asserted that the respondent, as the service recipient, is obligated to reimburse the GST. Respondent's arguments: The respondent raised preliminary objections regarding the maintainability of the writ petition. They argued that the claim for reimbursement involves disputed facts and interpretation of contract terms, making it unsuitable for writ jurisdiction. They also contended that the petitioner, as a registered company, does not possess fundamental rights under Article 19(1)(g) that would be violated. Crucially, the respondent argued that the writ petition is not maintainable as the petitioner failed to challenge the specific orders dated 21.12.2017 and 2.5.2024 by which their claim for GST refund was rejected.