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TMI Blog2020 (3) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... in the matter without any delay, at any rate, within a period of 2 weeks from the date of production of the certified copy of this judgment. It is also ordered that the 5th respondent will have to issue notices to the petitioner as well as to R3 (M/s. Hindustan Newsprint Ltd.) and R4 (who is stated to be the liquidator of R3 Company) and the 5th respondent in its notice may direct the 4th respondent to give a report regarding the factual aspects raised by the petitioner on the basis of Ext. P2 and also the constitutional contentions raised by the petitioner - Thereafter, respondent No.5 will afford reasonable opportunity of being heard to the petitioner, R3 and R4 and after adverting to and considering the various contentions of the petitioner as noted and contentions and submissions, if any of the other parties concerned, may render a considerable decision on the matters raised in the impugned Exts. P3 and P4 notices, without much delay. Application disposed off. - WP(C).No.1764 OF 2020(U) - - - Dated:- 28-1-2020 - Mr. Justice Alexander Thomas For the Petitioner : Adv. Sri. N.P. Prajeesh For the Respondent : Smt. M. M. Jasmine, Govt.Pleader JUDGME ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The 3rd respondent being the service recipient is obliged to remit the GST in respect of 20 items of services in compliance of the terms and conditions of Exhibit P2 work contract. The petitioner was under the bonafide belief that the respondents 3 and 4 have strictly complied the terms and conditions of the work contracts and are paid GST in respect of 20 items stated in Exhibit P2 work contract without any fail. However, now the 5th respondent has issued Exhibits-P3 and P4 notices under Section 122 of the State Goods and Services Act demanding penalty for the year 2017-2018 and 2018-2019. Exhibits P3 and P4 have been issued by the 5th respondent overlooking the liability of the respondents 3 and 4 to remit the GST for the said periods in terms of work contract. However, the 5th respondent is of the opinion that unless it is clarified by a court of law, they are unable to exempt the petitioner from paying the amount as demanded in Exhibits P3 and P4. The petitioner is highly aggrieved by Exhibits P3 and P4 notices issued by the 5th respondent. 2. The main contentions urged by the petitioner are as follows : (a) As per the terms of Exhibit P1, the work contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the petitioner has filed the instant W.P.(C.) with the following prayers : (i) Issue a writ of certiorari or any other appropriate writ, direction or order, quashing Exhibits P3 and P4 notices, (ii) Declare that the petitioner is not liable to pay Goods and Service Tax as demanded in Exhibits P3 and P4 as the petitioner had already shifted his burden to pay the same to the 3rd and 4th respondents in terms of work contract, (iii) Issue a writ of mandamus or any other appropriate writ, direction or order, directing the respondent Nos. 1,2 and 5 to drop the coercive steps pursuant to Exhibits P3 and P4. (iv) Issue a writ of mandamus or any other appropriate writ, direction or order directing the 3rd and 4th respondents to remit the Goods and Service Tax as demanded in Exhibits P3 and P4 within a time frame to be fixed by this Hon'ble Court. (v) And grant such other and further reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 4. Heard Sri.M.P.Prajeesh, learned counsel appearing for the petitioner, Smt.M.M.Jasmine, learned Government Pleader appearing for the respondents 1 and 5, Sri.V. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgments of the Apex Court in Rashtriya Ispat Nigam Ltd v. M/s.Dewan Chand Ram Saran [2012 (5) SCC 306] that nothing in law prevents the statutory assessee from entering into agreement with another party that burden of any indirect tax arising out of obligations of the promisor under the contract would be borne by promisor and the contractor is liable to bear service tax in discharge of his obligations under contract and that therein it has also been held that service tax is also indirect tax and it is possible that it may be passed on and therefore, an assessee can certainly enter into contract to shift its liability of service tax etc. 9. Further, the counsel for the petitioner would point out that decisions of the Apex Court as in Asst. Commissioner, Ernakulam v. Hindustan Urban Infrastructure Ltd. and others [2015 (3) SCC 745], wherein it has been held that a liquidator of a company under liquidation, is a dealer under the provisions of General Sales Tax Act and accordingly, it is contended that the 4th respondent, who is now appointed as the liquidator by the company law tribunal as per the provisions of the Companies Act, 2013, cannot wriggle out from the li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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