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TMI Blog2020 (12) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... 000 against the column total amount of GST/IGST meaning thereby, that respondent No.4 was not passing on the tax element to the respondent No.1 to 3/Prasar Bharti. As rightly submitted by Mr. Sharma, learned counsel for the respondent No.1 to 3/Prasar Bharti that there is nothing in the tender which shows that it is mandatory for a bidder to pass on the tax element to respondent No.1 to 3/Prasar Bharti. It is up to the bidder to decide whether or not to pass on the tax element to the respondent No.1 to 3/Prasar Bharti. It is not mandatory in law that a dealer has to collect the tax from the purchaser and pass it on to the Government. A dealer is permitted to absorb the tax element in the price offered. The Government is only interested in getting the tax payable on the sale and is not concerned as to whether the tax element is passed on to the consumer or not. In this view of the matter, there are no anomaly in the decision making process adopted by the respondent No.1 to 3/Prasar Bharti. Since it is not necessary to pass on the tax element to the consumer and the respondent No.4 has decided to absorb the tax element in the cost of the products itself, respondent No.1 to 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use 6.10.15 was added to the Instructions to the Bidders which stipulated that the bidder has to state in their offer, the GST/IGST/SGST/CGST/customs duties/surcharge etc. whichever is applicable in India over and above the prices being quoted failing which, the tenders would be out rightly rejected. The petitioner further states that Clause 7 of Annexure-1 in the Instructions to Bidders of the tender document postulated that the bidders will not indicate separate discounts and discounts, if any, should be merged in the rates against the quoted items. The petitioner also places reliance on an Instruction dated 26.06.2019 in the NIT which states that the tenderers shall separately indicate the rate and amount of GST/IGST etc. as applicable on the date of tendering failing which, the offer will be summarily rejected. 4. It is not in dispute that the technical bid of the petitioner and that of the respondent No.4 was opened on 03.09.2019 and it was found that respondent No.4 had mentioned GST as 18% in the columns across the items/equipment mentioned at serial No. 4 and 5 i.e. supply of 250 Watt Dummy load mounted in pre-wired Set Rack as per AIR specifications and Supply of Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any amount towards GST/IGST. He submits that nothing prevented the petitioner from doing so and it is a bidder s option not to pass on the tax element to Prasar Bharti. 9. Mr. Sharma has filed a comparative tabulate statement for items No. 4 and 5 as offered by the petitioner and the respondent No.4. The said statement is as follows:- Name of bidder Respondent No.4 Petitioner SL. No. Description of work Total Qty Unit rate Total Price excluding GST / IGST GST/IGST (%) Total Amount of GST/IGST Total Amount including GST/IGST Total Qty. Unit rate Total Price excluding GST/IGST GST/IGST (%) Total amount of GST/IGST Total Amount including GST/IGST 4 Supply of 250 Watt Dummy Load mounted in pre-wired Rack as per AIR specifications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner) 1 2 3 4 5 6 7 8 9 Item No. Description of Work Total Quantity Unit Rate INR Total Price Excluding GST Total Price Including 18% GST Unit Rate INR Total Price Excluding GST Total Price Including 18% GST 4 Supply of 250 Watt Dummy Load mounted in pre-wired rack as per AIR Specification 100 9000 900000 10602000 10300 1030000 1215400 5 Supply of Pre-wired Rack including Stereo Distribution Amplifier etc. 100 360000 36000000 42480000 302500 30250000 35695000 TOTAL 36900000 43542000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to decide whether or not to pass on the tax element to the respondent No.1 to 3/Prasar Bharti. It is not mandatory in law that a dealer has to collect the tax from the purchaser and pass it on to the Government. A dealer is permitted to absorb the tax element in the price offered. The Government is only interested in getting the tax payable on the sale and is not concerned as to whether the tax element is passed on to the consumer or not. In this view of the matter, we do not find any anomaly in the decision making process adopted by the respondent No.1 to 3/Prasar Bharti. 15. In Michigan Rubber (India) Ltd. v. State of Karnataka, reported as (2012) 8 SCC 216 , after examining the case law laid down on the scope of interference by courts in tender matters, the following principles have been carved out:- 23. From the above decisions, the following principles emerge: (a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 to 3/Prasar Bharti. 17. The offer made by Ms. Arora, Senior Advocate that the petitioner is prepared to waive off the tax component in its price bid and if that is done, then the petitioner's bid would be lower than that of the respondent No.4, cannot be entertained at this stage. As rightly submitted by Mr.Sharma, this will amount to re-writing the bid which cannot be permitted after the commercial bids have already been opened. It was for the petitioner to have decided as to whether it wanted to absorb the tax component in its price bid or not, at the appropriate stage. 18. We are also not impressed by the argument advanced by Ms. Arora, Senior Advocate that the decision of the respondent No.4 to absorb the tax component amounts to giving a discount and that no discount can be taken into account for evaluation purposes, as mentioned in Instruction No.7. Discount is on the cost price of the product. In this case, respondent No.4 has not reduced its cost price. It has only decided not to pass on the tax element to the respondent No.1 to 3/Prasar Bharti. Therefore, it cannot be said that respondent No.4 has given any discount to the respondents No.1 to 3. The respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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