2007 (4) TMI 763 - HC - Income Tax

Summary

Issues Involved:
1. Exclusion of the petitioner from the tender process.
2. Interpretation of Clause 2.3.5 regarding audited balance sheets.
3. Consideration of net worth under Clause 2.4.2.
4. Allegations of mala fide exclusion.
5. Rejection of the petitioner's bid based on legal proceedings and other grounds.

Summary:

1. Exclusion of the petitioner from the tender process:
The petitioner sought an order directing respondent Nos. 1 to 4 to consider his tender for toll collection work at Lahuki on the Aurangabad-Jalna road and to quash the tender process as he was excluded. The respondents considered the petitioner ineligible under Clause 2.3.5 of the tender terms, which required audited balance sheets for the last three financial years.

2. Interpretation of Clause 2.3.5 regarding audited balance sheets:
Clause 2.3.5 required audited balance sheets along with Profit and Loss accounts certified by a Chartered Accountant for companies, and tax audit reports for other cases as per Section 44AB of the Income Tax Act, 1961. The petitioner's business income was audited, but his personal balance sheet was not, leading to his disqualification. The court held that Section 44AB requires compulsory audit only for business income, not for other sources of income. The petitioner's business accounts were audited as required, making the disqualification under Clause 2.3.5 unfounded.

3. Consideration of net worth under Clause 2.4.2:
Clause 2.4.2 referred to the net worth of the offerer, not just the business income. The respondents admitted that the petitioner's net worth exceeded the prescribed limit. The court found that the respondents' interpretation to consider only business income was incorrect and an afterthought, as the petitioner was previously found eligible in similar tenders.

4. Allegations of mala fide exclusion:
The petitioner alleged that Clause 23(h) was introduced to exclude him, which was later deleted. The court noted that the petitioner had participated in similar tenders without such disqualification, indicating an intention to exclude him from the current tender process.

5. Rejection of the petitioner's bid based on legal proceedings and other grounds:
The respondents argued that the petitioner was ineligible due to ongoing legal proceedings and failure to submit a Bank guarantee. The court found these grounds to be afterthoughts, as they were not initially cited for disqualification. The court emphasized that challenging public body actions legally does not make a bidder undesirable.

Conclusion:
The court directed respondent Nos. 2 to 4 to consider the petitioner's bid by opening his financial bid and inviting both the petitioner and respondent No. 5 to revise their offers under Clause 22 of the tender terms. The respondents were ordered to pay the petitioner's costs fixed at Rs. 15,000, with a stay on the order for 12 weeks to allow for an appeal.