TaxTMI 
TaxTMI 
2021 (2) TMI 769
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....ill the date of payment along with exemplary costs. 2. It is the case of the petitioner that the 5th respondent had floated a tender for civil construction work viz., (a) construction of office building over Rythu rest house; (b) construction of shops; (c) raising of compound wall; (d) maintenance of structure; (e) construction of covered shed and (f) laying of CC road and yard at market yard for the Agriculture Market Committee, Cherial, Siddipet District. 3. It is contended that, though the said tenders were called for in April, 2017 and the petitioner having participated therein and was declared as L1, the agreement awarding the contract to the petitioner was entered into on 05.08.2017. The value of the contract awarded under the agreement entered into with the petitioner for the above said work was for a sum of Rs. 2,75,45,328.54 ps. 4. One of the terms of the agreement specifies that the special conditions mentioned in Appendix - I shall be read and construed as forming part of the agreement and the parties shall abide by the same. 5. One such condition specified in Appendix - I states that the Value Added Tax (VAT) payable for the work under the agreement shall be in addi....
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....and 1% SGST) in a sum of Rs. 22,266/- is contrary to the provisions of GST and since the provision relating to TDS under GST has been made applicable for the period from October, 2018 onwards while, the petitioner completed the construction work under the agreement by 30.06.2018. 11. Separate Counter-affidavits for 1st respondent and 2nd to 6th respondents are filed by the learned Standing Counsel and the learned Government Pleader respectively. 12. In the counter-affidavits filed on behalf of 1st and 2nd to 6th respondents, the factum of issuing tender in April, 2017 and the agreement being entered into with the petitioner on 05.08.2017 after the introduction of GST from 01.07.2017 is not disputed. 13. It is stated that as there was no clarity with regard to applicable rate of GST in the initial stages, and the finalization of percentage of rate of applicable GST has got cleared at the end of 2018 only, and there being any number of amendments like embodied taxes, percentage of GST at the rate of 18%, 12% and 5% etc., the authorities added VAT/TOT to the part bills submitted by the petitioner in the meantime and remitted a sum of Rs. 11,93,172/- to the 8th respondent while sett....
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....it filed by the respondents Nos.2 to 6, it is clear that the respondents are only trying to take shelter of the initial hiccups faced in the implementation of GST to justify their actions. The said stand of the respondent would have been appreciated, if only the respondents had not paid GST on the work executed, since it is claimed that the same lacked clarity. However, that is not so. 19. Admittedly, the 5th respondent had added TOT/VAT at 5% to the bills submitted by the petitioner for the work done and deducted and remitted the same to the 8th respondent, despite the TVAT Act, 2005 having stood repealed. 20. If the statement made by the respondents in the counter affidavits are correct, the respondents could not have been adding and deducting TOT/VAT to the running bills submitted by the petitioner, but they should have processed the bills without applicable GST either at 18%, 12% or 5% on account of lack of clarity as to the applicable rate as claimed in the counter. 21. As no such action is taken, it is but natural to presume that the respondents were either ignorant of the implementation of GST and the repealing the VAT Act or turned a blind eye to the contractual obligati....
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....ity of law. 27. Further, the claim of the 7th and 8th respondents that, as the application seeking refund has been preferred beyond the period of 45 days prescribed under the TVAT Act, 2005, the same could not be processed also does not appeal to this Court for being accepted for the reason that the amount remitted by the 5th respondent does not partake the character of tax, since, the TVAT Act, 2005 stood repealed. The amount received by the 7th and 8th respondents is without any authority of law and is thus in contravention of Article 265 of Constitution of India. It is a settled position of law as held by the Hon'ble Supreme Court in Salonah Tea company Ltd. v. Superintendent of Taxes, Nowgong (1988) 1 SCC 401 and Mafatlal Industries Ltd., v. Union of India -(1997) 5 SCC 536 that if any amount is collected as tax, without authority of law, refund of the same can be claimed by filing a suit. It is also settled proposition of law that such refund can also be directed in a writ petition filed under Article 226 of Constitution of India. 28. Having regard to the above, the action of the 7th and 8th respondents in not granting refund to the 5th respondent on the pretext ....