2019 (2) TMI 1181 - HC - Service Tax

Reimbursement/refund the service tax paid by the petitioner - N/N. 25 of 2012 dated 20.06.2012 - Held that - Since no counter affidavit is filed to support the submission by the Corporation and a representation in this regard is on record at Annexure-5 dated 12.10.2017 whereunder the petitioner placing reliance on Clause 35 of the general conditions of contract has sought for reimbursement of service tax amount, we would direct the Managing Director of the Corporation to dispose of the representation by a speaking order to be passed within three months from receipt/production of a copy of this order - petition disposed off.

Summary

Issues:
1. Petition for reimbursement of service tax based on exemption notification.
2. Interpretation of contract terms regarding taxes and levies.
3. Claim for refund under Clause 35 of the contract.

Analysis:
1. The petitioner filed a writ petition seeking reimbursement of service tax paid, citing an exemption notification issued by the Government of India. The petitioner relied on a Division Bench opinion in a previous case to support the claim. The respondents argued that the exemption claimed was applicable only to contracts entered into before a specific date, which did not include the petitioner's contract dated after the cut-off date. The matter was adjourned, and an interlocutory application was filed by the petitioner seeking a refund under Clause 35 of the contract.

2. The respondent, representing the Bihar State Educational Infrastructure Development Corporation Ltd., contended that the agreed contract rates already included taxes and levies. They argued that any additional tax or levy imposed during the contract period, if paid by the contractor, would be refundable by the employer. The respondent stated that Clause 35 did not support the petitioner's claim and actually bound them. Despite the reasonableness of the respondent's submissions, the court noted the absence of a counter affidavit and a representation by the petitioner invoking Clause 35 for reimbursement of the service tax amount.

3. After hearing arguments from both parties and reviewing the records, the court directed the Managing Director of the Corporation to decide on the petitioner's representation, seeking reimbursement of the service tax amount under Clause 35 of the contract. The court ordered the Corporation to pass a speaking order within three months from the receipt of the court's order. This decision resolved both the writ petition and the interlocutory application, providing a pathway for the resolution of the reimbursement claim.