Government of Odisha in Finance
Case Title | Deepak kumar das vs State of Orissa & Ors |
Court | Orissa High Court |
Honorable Judges | Justice Jaswant Singh and Justice M.S. Raman |
| Citation | 2022 (8) GSTPanacea 329 HC Orissa W.P.(C) No. 14897 of 2021 |
Judgement Date | 25-August-2022 |
Council for Petitioner | Mr. Prabodha Chandra Nayak |
Council for Respondent | Mr. Lalatendu Samantaray and Sunil Mishra |
In favour of | Respondent |
Section | CGST Act, 2017 |
The Orissa High Court, Justices Jaswant Singh and M.S. Raman, declined to exercise its power under Article 226 of the Constitution, dismisses the writ petition.
FACTS OF THE CASE
The petitioner, Deepak Kumar Das, works contractor, by enclosing copies of different agreements series in respect of works undertaken pleads that at the time of supplying estimate to the department concerned, he furnished estimated cost inclusive of value added tax. The Revised Guideline vide the Office Memorandum dated 10.12.2018 issued after introduction of the Central Goods and Services Tax Act, 2017 (for brevity, “CGST Act”) and the Odisha Goods and Services Tax Act, 2017 (abbreviated, “OGST Act”) with effect from 01.07.2017 specified that incomplete/balance work shall have to be estimated by excluding component of GST in terms of Revised Schedule of Rates, 2014 (in short referred to as “SoR, 2014”).
Counsel for the petitioner submitted that on the advent of GST regime the liability of the petitioner works contractor got enhanced. The basic price of materials as per SoR-2014 was inclusive of VAT, entry tax and other tax components. Since 1 July 2017 GST is payable on the value of the contract, the value of tax components in the price of the materials in SoR-2014 was revised and reduced by excluding such tax components prevalent during preGST period. As such, the revised SoR-2014 was issued on 16 September, 2017.
The Petitioner complains that the procedure adopted in the preparation of the revised SoR-2014 dated 16 September, 2017 (Annexure-8) is illegal, arbitrary and contrary to the provisions of Odisha Public Works Department Code (OPWD Code) and that the rates have not been determined on the basis of actual rates prevailing in different areas of the State. A further ground urged on behalf of the Petitioner is that the tender was floated prior to 1 July, 2017. The price quoted for the items and labour was as per the then prevailing market rate. Therefore, the revised SoR-2014 brought into force on 1 July, 2017 at a reduced rate is illegal and discriminatory.
Counsel for the Opposite Parties also placed for consideration of this Court that the prayer for restitution of benefit of GST along with interest is misleading inasmuch as the cause of action for the petitioner has already become time barred. He has pointed out that close scrutiny of copies of the Agreements series appended to the writ petition would depict the date of completion of work was in the year 2017.`
Government of Odisha in Finance
COURT HELD
The contention of the Petitioner is not found convincing for the reason that, first, nothing has been brought on record to show any comparison of market rate in 2014 when SoR-2014 was issued and the market rate in 2017 when revised SoR was issued. Secondly, no dispute has been raised against the rates mentioned in pre-revised SoR-2014. The price difference in the revised SoR-2014 is to the extent of the changed tax amount only. Undoubtedly, the rates in revised SoR2014 are applicable for the works all over the State.
In the instant case, three components of the tax, i.e., subject of tax, person liable to pay the tax and rate of tax has been clearly defined in the statute. The OM dated 10th December, 2018 only prescribes the manner/procedure of calculation to determine the amount of tax in a particular eventuality in the transitional period of migration to GST Act with effect from 1st July, 2017. Consequently, the Court finds no merit in the Petitioner’s challenge to the said OM in law.”
Noteworthy to refer to the case of Chandra Sekhar Jena Vrs. State of Odisha and Others, W.P.(C) No.23703 of 2021 wherein this Court vide Order dated 30.10.2021 held as follows: “1. Although learned counsel for the Petitioner seeks to have the order similar to the one passed by this Court on 13th January, 2021 in W.P.(C) No.23906 of 2020, it is seen that the agreement in question is dated 26th April, 2016 with the time for completion being 11 months. Clearly, therefore, any claim now raised arising from the said contract would be time barred. It is, therefore, not possible to accede to the prayer of the Petitioner. 2. The writ petition is dismissed.”
This Court wishes to observe that the petitioner has made a prayer to restrain the opposite parties, authorities of the CT&GST Organisation, from taking any coercive steps against the petitioner to recover amount of GST. Qua such a prayer, it is necessary to record that the task of determining the quantum of GST having regard to liability is of the Authority vested with power under the CGST/OGST Act and not within the domain of any other.
Further, the question whether, in fact, any amount is owed to the Petitioner by the Opposite Parties on account of GST deducted from its bills or vice versa, has become a highly disputed question of fact. The claim of the Petitioner ultimately, in simple terms, is one for money which it seeks as reimbursement from the Opposite Parties. It is not possible for this Court in its writ jurisdiction under Article 226 of the Constitution to calculate on a case to case basis which component of the work executed by the Petitioner for reimbursement on account of GST and which is not. This being a disputed question of fact, the Court declines to undertake this exercise in the writ jurisdiction and leaves it to the Petitioner to seek other appropriate remedies available to him in accordance with law. In such proceedings it would be open to either of the parties to rely on the pleadings of the present petition.
In view of the aforesaid discussion and for the reasons stated above, this court while declining to exercise its power under Article 226 of the Constitution, dismisses the writ petition.
Government of Odisha
ANALYSIS OF THE JUDGEMENT
By noticing the above order we analyse that the High Court do not have the authority to issue a writ provision under article 226 of the Constitution to calculate on a case to case basis which component of the work executed by the Petitioner for reimbursement on account of GST and which is not.