2011 (11) TMI 145 - HC - VAT and Sales Tax

Business efficacy - State invited tender for supply of BCG vaccines petitioner having business in state of Maharashtra quoted ₹ 28.60 5% VAT another party having business in Tamil Nadu quoted same price with 4% VAT( applicable in state) tender of second party accepted - w.e.f. 11.07.2011 Sate of Tamil Nadu also raised vat to 5% - second party agreed to absorb burden of extra 1% - petitioner sought the matter to be reviewed and its offer to be accepted - Held that - Business requires total freedom to decide and take action in the best interest of business. Every business is profit driven. If the action of the State where a bargain is concluded, whether by way of a concluded contract or by way of a standing offer requiring contractual obligations coming into being with each indent being placed, is fair and reasonable, subsequent events which were unforeseen would not make the action unreasonable. To accept the petitioner argument would mean that it would be impossible for the Government to lay down principles of comparative price neutralization and justify the decision to prefer one offer over the other. - Writ petition is dismissed.

Summary

Issues:
1. Acceptance of tender offer based on VAT rates
2. Allegation of violation of General Financial Rules 2005
3. Interpretation of standing offer and contractual obligations
4. Judicial review of State actions in business contracts
5. Application of Article 14 of the Constitution of India
6. Consideration of fairness and reasonableness in State actions
7. Dispute resolution regarding tender acceptance and subsequent offers

Issue 1: Acceptance of tender offer based on VAT rates
The judgment revolves around the acceptance of a tender offer by the first respondent based on the VAT rates applicable to BCG vaccines. The petitioner questioned the acceptance of the second respondent's offer despite VAT rate changes. The court analyzed the impact of VAT variations and the reasonableness of the decision based on the net outflow to the government.

Issue 2: Allegation of violation of General Financial Rules 2005
The petitioner alleged a violation of Rule 160 of the General Financial Rules 2005, claiming that past performance considerations were ignored. Additionally, concerns were raised regarding the quality of BCG vaccines supplied by the second respondent. The court examined the compliance with financial rules and the relevance of past performance in tender evaluations.

Issue 3: Interpretation of standing offer and contractual obligations
The judgment delves into the distinction between a standing offer and a binding contract. The petitioner argued that each requisition under the standing offer should create a separate contract, affecting the acceptance of offers. The court assessed the legal implications of standing offers and the obligations arising from repeated indent placements.

Issue 4: Judicial review of State actions in business contracts
The court discussed the balance between judicial review and the freedom of the State to conduct business efficiently. Emphasizing the need for business efficacy and state autonomy in contractual decisions, the judgment highlighted the principles guiding judicial scrutiny of state actions in commercial dealings.

Issue 5: Application of Article 14 of the Constitution of India
Article 14 of the Indian Constitution, ensuring equality before the law, was invoked to evaluate the reasonableness and non-arbitrariness of state actions in contract matters. The court referenced landmark decisions emphasizing fairness, rationality, and constitutional morality in state dealings with individuals.

Issue 6: Consideration of fairness and reasonableness in State actions
Fairness and reasonableness in state actions, particularly in business contracts, were central to the judgment. The court assessed the impact of VAT changes, business efficacy, and the state's discretion in accepting offers based on comparative pricing and financial implications.

Issue 7: Dispute resolution regarding tender acceptance and subsequent offers
The judgment addressed the resolution of the tender acceptance dispute and subsequent offers made during the litigation. The court scrutinized the petitioner's response to the government's offer and the implications of contract acceptance deadlines, ultimately dismissing the writ petition and awarding costs to the first respondent.