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TMI Blog2020 (4) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... se 12.4 of the ITB, read with Section 9 of the GST Act, payment of GST was to be the liability of the awarder and hence, mentioning or non-mentioning of the rate of GST was to be of no consequence as it is a 'constant figure' with regard to which no alteration can be thought about either by the bidder or by the awarder. Above all, if at all, there was any mistake or the bid was defective for not quoting the proper amount with reference to the duties/taxes payable, it was quite open for the Respondents to have 're-evaluated the bid' in terms of clause 23.3, read with clause 23.2.3 of the ITB to work out the actual quote and to identify the L-1 bidder. Obviously, it is without any regard to these vital aspects, that the proceedings were sought to be pursued hastily, by issuing Annexure P/8; virtually without considering the objection/ explanation raised by the Petitioner vide Annexure P/7 in response to Annexure P/5 - Annexure P/8 order/proceedings dated 09.01.2020 impugned in the writ petition is not liable to be sustained and hence, it is set aside. It is still open for the Respondents to re-evaluate the bid submitted by all the participants including the Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax Act, 2017 was introduced from July, 2017, the rate of taxes payable, it being a work contract, was fixed as 18% (9% CGST + 9% SGST). Subsequently, as per Annexure P/4 dated 22.08.2017, pursuant to the meeting of the GST Council, the rate was modified, segregating the rate of tax with reference to the purpose of the road by virtue of which construction of Section B road; was to attract a tax liability of only 12% (6% CGST + 6% SGST), whereas Section C road which was for internal/township purpose, it was to carry a higher rate of 18% (9% CGST + 9% SGST). 3. As mentioned above, when Annexure P/2 NIT was issued on 09.09.2019, Annexure P/4 modified rate of GST had already been brought into force from 22.08.2017, but in the relevant column of the form contained in the web portal, there was only one column for mentioning the GST rate. The tender conditions specifically stipulated that the Probable Amount of Contract ( for short 'the PAC' ) was ₹ 24,32,45,371.37 and that the rate had to be quoted by the bidder by percentage - higher or lower, including all taxes/duties. 4. Clause 11.1.3.2 of the Instructions to Bidders ( for short the ITB ) provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to identify the L-1 bidder. This was to avoid any chance for a bidder to quote lesser amount to project himself and claim to be the L-1 bidder. Similarly, if any bidder quotes a higher rate of GST, since the rate of GST is statutory, only the notified rate can be claimed or be paid by the awarder by virtue of the obligation under clause 12.4 of the ITB (that the liability to satisfy the GST shall always be for the awarder/employer). That apart, Section 9 of the GST Act, read with clause 12.4 of the ITB clearly makes it obligatory for the awarder/employer of the works contract read with Section 2(119) of the CGST Act, 2017 (which includes construction) to satisfy the GST upon the awarder of the contractor, whatever be the rate. This is virtually to the effect that, whether the rate of GST is quoted in the tender or if any wrong rate is mentioned, it cannot have any bearing with regard to the evaluation of the bid, more so when power is vested upon the awarder of the contract to evaluate the bid in terms of clause 23.3, read with clause 23.2.3 of the ITB. The case projected by the Petitioner has to be analysed in the above background. 8. As mentioned already, by virtue of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red appearance and filed reply, seeking to sustain their action in issuing Annexure P/8, for the reason that the Petitioner had failed to quote the rate of GST despite the clear stipulation in this regard. In the said circumstance, the GST had to be carved out from the rate quoted, thus reducing the quote from ₹ 18,24,58,353.06 to ₹ 15,46,25,723/- which was far below the estimated price (abnormally lower rate), leading to such other consequences as mentioned therein. It is also contended that the writ petition is not maintainable by virtue of lack of territorial jurisdiction, as the tender has been issued from Ranchi in the State of Jharkhand. The Respondents further contend that the stipulations in the tender have been correctly understood by the other participants who have submitted their tenders quoting the GST separately and that the writ petition is only liable to be dismissed as devoid of any merit at all. 10. The Petitioner has filed a rejoinder virtually reiterating the contentions raised in the writ petition and seeking to controvert the contents of the return filed by the Respondents. 11. We heard Shri Vikram Sharma, the learned counsel for the Petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis as power of this Court is wide enough by virtue of the specific provision under Article 226(2) of the Constitution of India which stipulates that the power of the Court under clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by this Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part arises for the exercise of such power notwithstanding that the seat of such Government/authority or the residence of such person is not within those territories. The learned counsel submits that Annexure P/2 NIT was issued for construction of roads for the Talaipalli Coal Mining Project which is situated in Raigarh District of the State of Chhattisgarh. The construction of the roads as above was for the benefit of general public in the State and particularly at Raigarh and further the Respondents had a project office at Raigarh in Chhattisgarh as well. This being the position, the cause of action mainly or at least in part, had arisen at Raigarh in Chhattisgarh and this Court is having the jurisdiction to deal with the matter. It is further pointed out that, though there is a cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. In case of repudiation of a contract, the place where repudiation is received is the place where the suit would lie. If a contract is pleaded as part of the cause of action giving jurisdiction to the court where the suit is filed and that contract is found to be invalid, such part of cause of action disappears. The above are some of the connecting factors.: Similarly, reliance is also placed on the verdict passed by the Apex Court in Election Commission of India v. Saka Venkata Rao {AIR 1953 SC 210, paragraphs 6 and 7}, besides citing (with permission) the verdict passed by a learned Single Judge of the Karnataka High Court reported in Millipore India Private Ltd. v. Govt. of India Others {AIR 2002 Karnataka 280, paragraphs 9, 11, 13, 14 and 15} referring to various judgments rendered by the Apex Court. 15. With regard to the merits involved, the learned counsel for the Petitioner submits that the existence of two different rates of GST by virtue of Annexure P/4 amendment brought about and notified on 22.08.2017 in respect of the construction of roads for public purpose ( Section B 12% ) and internal/private purpose ( Section C 18% ) is not denied by the Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8% for construction of roads for internal/private purpose ( Section C ), it was obligatory for the Respondents to have provided separate columns in the Annexure P/2 tender issued on 09.09.2019 when Annexure P/4 notification was governing the field. That apart, by virtue of the clear stipulations under clause 12.4 of the ITB, read with Section 9 of the GST Act, payment of GST was to be the liability of the awarder and hence, mentioning or non-mentioning of the rate of GST was to be of no consequence as it is a 'constant figure' with regard to which no alteration can be thought about either by the bidder or by the awarder. Above all, if at all, there was any mistake or the bid was defective for not quoting the proper amount with reference to the duties/taxes payable, it was quite open for the Respondents to have 're-evaluated the bid' in terms of clause 23.3, read with clause 23.2.3 of the ITB to work out the actual quote and to identify the L-1 bidder. Obviously, it is without any regard to these vital aspects, that the proceedings were sought to be pursued hastily, by issuing Annexure P/8; virtually without considering the objection/ explanation raised by the Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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