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TMI Blog2019 (11) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... the agreement, if the tax is increased, petitioner is liable to pay the same as per the stipulations contained under clause 44 quoted above without insisting for any rate variation. So also the tender is to be submitted by a bidder taking into account various factors and components and a little bit of speculation is also required. When clause 44 was incorporated in Ext.P1 tender notification and the introduction of GST was under comprehension and in fact it was made without being introduced and therefore, it cannot be said that, petitioner was not aware of the likelihood of legislation being introduced on and with effect from a future date. Therefore, necessarily, petitioner ought to have visualised such a situation and the rates should have been quoted only in accordance with the same. It is also clear from Exts.R3(a) and R3(b), petitioner has quoted less than the probable amount of contract and according to the learned Special Government Pleader, petitioner wants now to wriggle out of the contract without causing any injury to him. GST is nothing but tax on supply of goods, supply of service and supply of goods and services, however, a homogeneous mixture of several of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 2,00,000/- furnished by him along with the tender. Third respondent by Ext.P10 directed to execute an agreement for carrying out the works with GST, which according to the petitioner, is not incorporated in Ext.P1 and therefore, the action is without jurisdiction and illegal and Exts.P2, P5, P8 and P10 are illegal and arbitrary and therefore liable to be interfered with by this court with a direction to the respondents to release the EMD of ₹ 2,00,000/- furnished by him in view of the failure on the part of the respondents to accept the tender in the manner stipulated in tender documents in Ext.P1. 4. That apart it is submitted that, the 1st respondent remains inactive on Ext.P12 representation of the petitioner in violation of the fundamental rights of the petitioner under Articles 19(1)(g) and 21 of the Constitution of India. It is in this background facts, the specified reliefs are sought for by the petitioner. 5. Third respondent has filed a detailed counter affidavit disputing the allegations and claims and demands raised by the petitioner. The invitation of tender, submission of tender by the petitioner etc. are all accepted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coming thereunder has power either to reduce, exempt or reimburse any portion of the GST charges on PWD work bills on any grounds or circumstances. 7. So also it is submitted that, consequent to introduction of GST from 1.7.2017, petitioner is liable to pay tax at 14% is also baseless. Petitioner had earlier filed W.P.(C) No.25360/2017 raising very same issues and this court as per the judgment dated 1.8.2017 directed the 2nd respondent to consider and pass orders on the representation submitted by the petitioner within one month from the date of receipt of the copy of the judgment after hearing the petitioner. Soon on receiving the copy of the above judgment, 3rd respondent put maximum efforts on the representations to make a vivid picture of the dispute of 14% additional tax liability alleged by the petitioner. Third respondent has also made all efforts to make a clear cut comparison of exact figures between VAT and GST in the case of the work in question. It is clear that, the main peculiarity of the GST system is the input tax credit system favouring the purchaser of the materials and unlike in the case of Sales Tax (VAT), petitioner is eligible for input tax cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation with respect to the benefit accrued to the petitioner on account of introduction of GST and the input credit etc. etc. According to the petitioner, the calculation so made by the 3rd respondent and produced as Ext.R3(e) is not true or correct. So much so it is submitted that, as per the calculation made by the petitioner, an extra liability of an amount of ₹ 22,45,163/- will accrue to the petitioner on account of the GST with reduced rate of 12% of the value of works even after set off of input tax credit of ₹ 14,85,899/- with respect to the purchase of all the materials required for carrying out the work. Petitioner has also calculated the facts and figures arrived at by the petitioner and submits that, the introduction of GST at the time of notice inviting tender was not a condition incorporated thereunder and therefore, the respondents are not at liberty to introduce such a condition while executing the agreement and accordingly, they are bound to return the EMD amount to the petitioner as is claimed in the writ petition. 10. I have heard Learned counsel for petitioner, Sri.Babu Thomas.K., learned Special Government Pleader, Sri.K. V. Manoj Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner was taken into account. However, the State Government has resorted to in issuing Ext.P9 notification dated 27.1.2018 issuing directions in the manner in which the amounts are to be recovered in accordance with the provisions of the Goods and Services Tax Act. According to the petitioner, since petitioner found that, the case put forth by the petitioner was not understood by the respondents, petitioner has submitted Exts.P12 representation before the 1st respondent , however, no action was taken by the 1st respondent to ventilate the grievance of the petitioner. 13. On the other hand, learned Special Government Pleader has invited my attention to clause 44 of Ext.P1 tender inviting notice, wherein it is stipulated as follows: The bidder shall be responsible for the payment of sales tax as per rules in force from time to time and the rates quoted for various items remain unaffected by any changes that may be made from time to time in the rate at which such tax is levied. Sales tax agricultural income tax and income tax due to Government from the bidder will be recovered from his bill for the work as per the advise of the authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , petitioner has quoted less than the probable amount of contract and according to the learned Special Government Pleader, petitioner wants now to wriggle out of the contract without causing any injury to him. 16. In this context I have come across the judgment of the Apex Court in Syndicate Bnak v. R. Veeranna and others [(2003) 2 SCC 15, wherein the issue of hike in interest was considered in respect of bank transactions and held as follows in paragraph 7: 7. The High Court while holding that the party is bound to pay the interest at the agreed rate took the view that the Bank could not automatically charge the increased rate of interest merely on the basis of rise of interest on account of the RBI circulars. It is not a case of automatically charging the increased rate of interest; charge of higher rate is based on agreement between the parties. The High Court was clearly in error in holding that the principles of natural justice were violated on the ground that the defendants were not put on notice before enhancing the rate of interest when the parties are bound by the terms of the contract. The application of the principles of natural justice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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