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TMI Blog2024 (11) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Return and the exemption given under Clause 3(e) to MSEs, from submitting the Average Annual Financial Turnover in Clause 3(b) does not include within it s ambit Clause 13(h) of the NIT. There is also no provision for submission of the Average income tax returns for the last 3 years in either Clause 3(b) or Clause 3(h). Though the Income Tax Return can be supportive of the Average Annual Financial Turnover, the Average Annual Financial Turnover cannot be said to be the same as an Income Tax Return or vice versa. As an Income Tax Return cannot said to be an Average Annual Financial Turnover document, this Court holds that the relaxation provided to MSEs under Clause 3(e) would not cover the Income Tax Returns required to be submitted by a bidder under Clause 13(h). As the petitioners have submitted only the Income Tax Returns for 2 years, which is not in consonance with the requirement of filing the Income Tax Returns for 3 years, this Court does not find any infirmity with the decision of the respondent authorities in disqualifying the petitioners Technical Bid. - Hon ble Mr. Justice Michael Zothankhuma For the Petitioner : Mr. B. Sharma, Advocate For the Respondent nos.1 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13(h) of the NIT, does not arise. He further submits that similarly placed bidders as the private respondents, have been empanelled by the State respondents and as such, there is discrimination writ large, in disqualifying the technical bid of the petitioners. 6 . The petitioners counsel submits that the petitioners technical bid had been rejected on the ground that the petitioners had not submitted the copy of the income tax returns for the years 2022-23. However, an income tax return to be submitted in terms of Clause 13(h), is proof of the Annual Financial Turnover required under Clause 3(b) of the NIT. As such, the petitioners were exempt from submitting the income tax returns for the year 2022-23 in terms of Clause 3(e) of the NIT. 7. The petitioners counsel submits that the petitioners had submitted the Income Tax Returns for the year 2020 2021 and 2021 2022. The petitioners did not submit the Income Tax Return for the year 2022 2023. As the Income Tax Return is a part of the Annual Financial Turnover document under Clause 3(b), which also includes the audited certified balance sheets required under Clause 3(b) of the NIT, the non-submission of the Income Tax Return for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 should not be less than Rs. 50.00 Lakh . The audited/certified balance sheet should be submitted along with IT return files for the years as stated above. 3(e) Relaxation for Micro Small Enterprises (MSEs): As per the Government Policy Circular No.1(2) (1) 2016-MA, dated 10/03/2016 issued by O/o Development Commissioner (MSME), Ministry of Micro, Small Medium Enterprises, Government of India, Micro and Small Enterprises (MSEs) are exempted from prior turnover and experience in all public procurements subject to meeting of quality and technical specification . The bidders need to submit the up-to-date copy of Certificate of registration for Micro or Small Enterprises (Udyam Registration Certificate) issued by Ministry of Micro, Small and Medium Enterprises (MSME), Govt. of India. Moreover, the bidders must be genuine manufacturer of handlooms that clearly mention in the Udyam Registration Certificate. In case of MSE payment of EMD and bid cost are exempted as per Govt. of India OM, No.F.No.1(3)/2018-MA, Pt-III, dt. -27-10-2022. (Schedule of Requirement) (13) TECHINICAL BID (Part-I) Following self-attested documents in hard copy and in online must be submitted in technical bid, wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Commissioner of Income Tax-VII, New Delhi vs. Punjab Stainless Steel Industries (Civil Appeal No.5592/2008), the Supreme Court has held that the word Turnover would mean the total Sales . In terms of the meaning given by the institute of Chartered Accountants of India, wherein it has been held at paragraph-25 as follows : 25. So as to be more accurate about the word turnover , one can either refer to dictionaries or to materials which are published by bodies of Accountants. The Institute of Chartered Accountants of India (hereinafter referred to as the ICAI ) has published some material under the head Guidance Note on Tax Audit Under Section 44AB of the Income Tax Act . The said material has been published so as to guide the members of the ICAI. In our opinion, when a recognized body of Accountants, after due deliberation and consideration publishes certain material for its members, one can rely upon the same. Para 5 of the said Note deals with Sales , turnover and gross receipts . Paras 5.2 and 5.3 of the said Note are reproduced hereinbelow, which pertain to the term turnover . 5.2 In the Guidance Note on Terms Used in Financial Statements published by the ICAI, the expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Turnover for three years would have to be provided. The audited/certified balance sheet, along with the Income Tax Returns was also to be provided. This shows that the Average Annual Financial Turnover is different from an Income Tax Return. 19. Due to the reasons stated above, this Court is of the view that the Average Annual Financial Turnover would have to be considered to be different than an Income Tax Return and the exemption given under Clause 3(e) to MSEs, from submitting the Average Annual Financial Turnover in Clause 3(b) does not include within it s ambit Clause 13(h) of the NIT. There is also no provision for submission of the Average income tax returns for the last 3 years in either Clause 3(b) or Clause 3(h). Though the Income Tax Return can be supportive of the Average Annual Financial Turnover, the Average Annual Financial Turnover cannot be said to be the same as an Income Tax Return or vice versa. 20. Having stated the above, the Supreme Court in various judgments has held that the author of the tender document is the best person to understand and appreciate its requirement and interprets its documents. It has further been held that Court s interference should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in the tender documents cannot be ignored or treated as redundant or superfluous. They must be given meaning and their necessary significance. In the matter of government contracts and tenders, employer/competent authority is better placed to appreciate the requirements of the tender conditions and to interpret them. Courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. Courts should give way to the opinion of experts unless the decision is totally arbitrary or unreasonable. 23 . The above being said, as an Income Tax Return cannot said to be an Average Annual Financial Turnover document, this Court holds that the relaxation provided to MSEs under Clause 3(e) would not cover the Income Tax Returns required to be submitted by a bidder under Clause 13(h). As the petitioners have submitted only the Income Tax Returns for 2 years, which is not in consonance with the requirement of filing the Income Tax Returns for 3 years, this Court does not find any infirmity with the decision of the respondent authorities in disqualifying the petitioners Technical Bid. 24. The writ petition is accordingly dismissed. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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