TaxTMI 
TaxTMI 
2022 (11) TMI 918
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...., 2017 (collectively be read as, "GST Act") pertaining to the periods 2017-18 and 2018-19 vide Annexures-9 and 10: "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to admit this writ petition and issue rule nisi, calling upon the respondents to show cause as to why this writ petition shall not be allowed. If the opposite parties fail to show cause or show insufficient cause, the said rule may be made absolute and upon hearing the parties this Hon'ble Court may further be pleased to: a. To declare the Demand-cum-Show Cause Notices as ultra vires, illegal, unconstitutional and violative of the Fundamental Rights of the petitioner and thereby quash the Show Cause Notices with Reference Nos. ZD2108220041633 and ZD210822004217Y for the tax periods July, 2017 - March, 2018 and April, 2018 - May, 2018; and b. Pass any other order(s) and direction(s) as would be deemed just and proper by this Hon'ble Court; c. And for this act of kindness, the petitioner shall as in duty bound ever pray." 2. Fact leading the petitioner to approach this Court to beseech invocation of extraordinary jurisdiction under....
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....atter, Petitioner shall make a comprehensive representation before the appropriate authority within two weeks from today ventilating the grievance. If such a representation is filed, the authority will consider and dispose of the same, in the light of the aforesaid revised guidelines dated 10.12.2018 issued by the Finance Department, Government of Odisha, as expeditiously as possible, preferably by 15.03.2021. 8. If the Petitioner(s) will be aggrieved by the decision of the authority, it will be open for the Petitioner(s) to challenge the same. 9. No coercive action shall be taken against the Petitioner till 15.03.2021. 10. The writ petition is disposed of accordingly." 2.2. Said order has further been modified with the following order dated 12.11.2021 in consideration of I.A. No.4735 of 2021 filed in the disposed of W.P.(C) No.3452 of 2021: "1. Last opportunity is granted to the Applicant (Petitioner) to file a representation to the Executive Engineer, Manjore Irrigation Division, Athamallik (Opposite Party No.3) and not to the tax authority. It is made clear that if such representation is not made on or before 1st December, 2021 the interim ....
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....from gross amount of each running bill of the petitioner/contractor shall be made as per the then prevailing statutory provisions of law at the time of floating of tender/ submission of the tender for the contract work. The Value Added Tax is applicable to the instant contract work as the Value Added Tax Act was prevailing at the time of floating/submission of tender for the respective contract work. ***" 2.6. The petitioner by referring to the following text from Guidelines issued by the Government of Odisha in Finance Department vide Memo No. 36116-FIN-CT1-TAX-0045-2017/F., dated 07.12.2017 urged that the authority ought not to have insisted on submission of bills for the work already executed showing goods and service tax element as inclusive of the contract price: "Works Contracts executed before 01.07.2017 and payments made in pre-GST and GST period.- (i) In the pre-GST regime, taxes like Central excise Duty, Entry Tax, OVAT and Service Tax have been included in the estimated value of the Works Contract and form a part of the bid price as well as of the contract price. Accordingly, value of the contract was inclusive of all taxes. (ii) In case of ....
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....etitioner claims to have made comprehensive representations vide Annexure-7 series and affirms the same to be pending before the Executive Engineers of Manjore Irrigation Division, Athamallik; Rural Works Division, Angul; and Angul Irrigation Division, Angul; in the district of Angul, nothing is stated in the instant writ petition as to why the petitioner has arrayed Executive Engineer of Rengali Right Canal Division No.II, Dhenkanal against whom possibly no relief could have been asserted. Therefore, this Court does not find any merit in the contention of the petitioner that the Executive Engineer having not yet considered such representations, the CT&GST Officer of Angul Circle has no competence to initiate action under Section 73 of the GST Act for the purpose of determining tax liability in respect of amounts received on execution of works. It is, therefore, held that the writ petition is incompetent for non-joinder and mis-joinder of proper and necessary party and pendency of representation, if any, before such authority who is not impleaded as party in the writ petition does not deserve consideration for the purpose of adjudication as to whether the CT&GST Organisation is jus....
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.... Devi Construction Vrs. The Executive Engineer, Bhubaneswar R&B Division-IV, Bhubaneswar, W.P.(C) No.7956 of 2019 vide Order dated 22.02.2021. 4.4. It is also noteworthy here that very many works contractors laid challenge to the Guidelines issued by the Government of Odisha in Finance Department vide Memo No. 36116-FIN-CT1-TAX:: 0045-2017/F., dated 07.12.2017 on the advent of the GST statute with effect from 01.07.2017. During the pendency of the writ petitions, being W.P.(C) No. 6178 of 2018 : All Orissa Contractors Association Vrs. State of Odisha, and other cases, the Government of Odisha in Finance Department brought out Revised Guidelines for works contract vide Office Memorandum bearing No.38535-FIN-CT1-TAX-0045-2017/F., dated 10.12.2018. This Court vide Order dated 12.12.2018 disposed of said writ petition(s) by extracting the Revised Guidelines in extenso and held as follows: "*** In that view of the matter, the Petitioner shall make a comprehensive representation before the appropriate authority within four weeks from today ventilating the grievance. If such a representation is filed, the authority will consider and dispose of the same, in the light of the afo....
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....legal, arbitrary and same shall not be quashed. v. why the notice issued by the Opp. Party No. 9 under Annexure-9 shall not be declared illegal, arbitrary and same shall not be quashed? vi. why the Opp. Party shall not be directed to prepare a fresh schedule of rates considering rapidly change of rate and price and calculate the differential amount of GST on the contract in which estimate was prepared under VAT?' *** 11. 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 pre-GST period. As such, the revised SoR- 2014 was issued on 16 September, 2017. 12. 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 a....
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.... Court finds no merit in the Petitioner's challenge to the said OM in law." 4.6. This Court on 01.02.2021 while disposing of W.P.(C) No.3452 of 2021 and other cases filed by the petitioner has taken into consideration Revised Guidelines vide Office Memorandum No.38535-FIN-CT1-TAX-0045-2017/F., dated 10.12.2018 and directed as follows: "*** In that view of the matter, Petitioner shall make a comprehensive representation before the appropriate authority within two weeks from today ventilating the grievance. If such a representation is filed, the authority will consider and dispose of the same, in the light of the aforesaid revised guidelines dated 10.12.2018 issued by the Finance Department, Government of Odisha, as expeditiously as possible, preferably by 15.03.2021. ***" Hence, the petitioner again in the present writ petition, which is filed on 17.08.2022, without referring to Revised Guidelines dated 10.12.2018, has sought to rely on erstwhile Guidelines dated 07.12.2017 (Annexure-2, Paragraph 4 of the writ petition) which appears to be an attempt to misguide the Court. 4.7. This Court having threadbare compared the clauses contained in File No. NRRDA-G....
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....ayable to the works contractor; (i) Item-wise quantity of work done after 30.06.2017 (i.e. the Balance Work) and its work value as per the original agreement basing on the pre-revised SoR- 2014 is to be ascertained first. (ii) The revised estimated work value for the Balance Work is to be determined as per the Revised SoR- 2014. (In case of rates of any goods or service used in execution of the Balance Work not covered in the Revised SoR-2014, the tax exclusive basic value of that goods or service shall be determined by removing the embedded tax incidences of VAT, Entry Tax, Excise Duty, Service Tax, etc. from the estimated Price/Quoted Price.) (iii) The revised estimated work value for the Balance Work shall then be enhanced or reduced in the same proportion as that of the tender premium/discount. (iv) Finally, the applicable GST rate (5%, 12% or 18% as the case may be) is to be added on the revised estimated work value for the Balance Work to arrive at the GST-inclusive work value for the Balance Work. (v) A model format for calculation of the GST-inclusive work value for the Balance Work is attached as Annexure. The competent authorit....
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....balance work. The Revised Guidelines dated 10.12.2018 has rationality in application of rate of tax under the GST Act on the balance work. 4.10. At this juncture the following provisions of the GST Act are relevant to be taken note of. Section 2(119): " 'works contract' means a contract for building, construction, fabrication, completion, erection, installation, fitting out, improvement, modification, repair, maintenance, renovation, alteration or commissioning of any immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of such contract; Section 7(1A): "Where certain activities or transactions constitute a supply in accordance with the provisions of sub-section (1), they shall be treated either as supply of goods or supply of services as referred to in Schedule II." Schedule II: "Activities or transactions to be treated as supply of goods or supply of services- *** 5. Supply of services The following shall be treated as supply of service, namely:- (a) renting of immovable property; (b) construction of a compl....
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....y of GST and for that matter ascertainment of liability and correct quantification of tax liability is subject-matter of adjudication by the authorities bestowed with power under the provisions of the GST Act. 4.12. The legal position has been succinctly laid down by different Courts. Suffice it to refer to the case of Jindal Poly Films Ltd. Vrs. State of Maharashtra, (2013) 63 VST 67 (Bom) wherein Hira Lal Rattan Lal Vrs. Sales Tax Officer, (1973) 31 STC 178 (SC) = (1973) 1 SCC 216 has been taken note of to say that the fact that the dealer upon whom the tax is imposed, is not in a position to pass on the tax on his consumers has no relevance to the competence of the Legislature. An amendment is permissible even when the principal Act fails to bring out clearly the intention of the Legislature. In M.A. Rahman Vrs. State of Andhra Pradesh, (1961) 12 STC 392 (SC) wherein it has been stated that though there is no provision in the Act or the Rules specifically authorising the seller to pass on the tax to the consumer, what actually happens is that the seller includes the tax in the price and thus passes it on to the consumer. Then in his turn the seller pays the tax to the State. ....
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.... GST Rules read with Section 39 of the GST Act vis-à-vis data disclosed in WAMIS. 5. The petitioner in the writ petition has made a prayer to issue writ of certiorari by quashing Show Cause Notices dated 06.08.2022 issued by CT&GST Officer, Angul Circle, Angul under Section 73 of the GST Act pertaining to the periods from 01.07.2017 to March, 2018 and 01.04.2018 to 31.05.2018 on the plea that the representation(s) filed before the Executive Engineer (Annexure-7 series) has not been considered in terms of Revised Guidelines dated 10.12.2018. 5.1. It may be pertinent to quote relevant portion of the representation(s) addressed to the Executive Engineer(s): "That it is humbly submitted here that payments are received by me are arising out of the above contract executed prior to the commencement of the GST Act, i.e. w.e.f. 01.07.2017 wherein the Tender Notices were published prior to the commencement of the GST Act with the estimate prepared completely prior to the commencement of GST Act. Therefore, taking into consideration the works contractor required to pay the GST which was not envisaged while entering into the contract, the Finance Department vide Office Me....
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....05) 6 SCC 499]. 11. Except for a period when Article 226 was amended by the Constitution (Forty-second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided, the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. 12. Constitution Benches of this Court in K.S. Rashid and Son Vrs. Income Tax Investigation Commission [1954 SCR 738 = AIR 1954 SC 207], Sangram Singh Vrs. Election Tribunal, Kotah [(1955) 2 SCR 1 = AIR 1955 SC 425], Uni....
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....urt must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the Petitioner seeks enforcement of any of the fundamental rights; where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 15. In Veerappa Pillai Vrs. Raman & Raman Ltd. [1952 SCR 583 = AIR 1952 SC 192], CCE Vrs. Dunlop India Ltd. [(1985) 1 SCC 260 = 1985 SCC (Tax) 75 = AIR 1985 SC 330], Ramendra Kishore Biswas Vrs. State of Tripura [(1999) 1 SCC 472 = 1999 SCC (L&S) 295 = AIR 1999 SC 294], Shivgonda Anna Patil Vrs. State of Maharashtra [(1999) 3 SCC 5 = AIR 1999 SC 2281], C.A. Abraham Vrs. ITO [(1961) 2 SCR 765 = AIR 1961 SC 609], Titaghur Paper Mills Co. Ltd. Vrs. State of Orissa [(1983) 2 SCC 433 = 1983 SCC (Tax) 131 = AIR 1983 SC 603], H.B. Gandhi Vrs. Gopi Nath & Sons [1992 Supp (2) SCC 312], Whirlpool Corporation Vrs. Registrar of Trade Marks [(1998) 8 SCC 1 = AIR 1999 SC 22], Tin Plate Co. of India Ltd. Vrs. State of Bihar [(1998) 8 SCC 272 = AIR 1999 SC 74], Sheela Devi Vrs. Jaspal Singh [(1999) 1 SCC 209] and Punjab National Bank Vrs. O.C. Krishnan [(2001) ....
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....f elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted. [See N.T. Veluswami Thevar Vrs. G. Raja Nainar [AIR 1959 SC 422], Municipal Council, Khurai Vrs. Kamal Kumar [AIR 1965 SC 1321 = (1965) 2 SCR 653], Siliguri Municipality Vrs. Amalendu Das [(1984) 2 SCC 436 = 1984 SCC (Tax) 133], S.T. Muthusami Vrs. K. Natarajan [(1988) 1 SCC 572], Rajasthan SRTC Vrs. Krishna Kant [(1995) 5 SCC 75 = 1995 SCC (L&S) 1207 = (1995) 31 ATC 110], Kerala SEB Vrs. Kurien E. Kalathil [(2000) 6 SCC 293], A. Venkatasubbiah Naidu Vrs. S. Chellappan [(2000) 7 SCC 695], L.L. Sudhakar Reddy Vrs. State of A.P. [(2001) 6 SCC 634], Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha Vrs. State of Maharashtra [(2001) 8 SCC 509], Pratap Singh Vrs. State of Haryana [(2002) 7 SCC 484 = 2002 SCC (L&S) 1075] and GKN Driveshafts (India) Ltd. Vrs. ITO [(2003) 1 SCC72] .] *** 15. Thus, while it can be said that this Court has recognized some exceptions....
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....r entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained at the show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. High Court ought not to have entertained the writ petition, more so, when against the final orders appeal lies to this Court. The judgment of this Court in the case of Union of India Vrs. Guwahati Carbon Ltd., (2012) 11 SCC 651 = 2012 SCC OnLine SC 210 relied on by the learned senior counsel for the appellants also supports their case. In the aforesaid judgment, arising out of Central Excise Act, 1944, this Court has held that excise law is a complete code in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute is available. When there is a serious dispute with regard to classification of service, the respondents ought to have responded to the show cause notices by placing material in support of their stand but at the same time, there is no rea....
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....xpeditiously as possible in accordance with law and in accordance with the directions given hereinabove. 7. We make it clear that the Assessing Authority will decide the matters uninfluenced by any observations made by the High Court/Tribunal in the earlier round of litigation. 8. All contentions on both sides are expressly kept open. At this stage we do not wish to express any opinion on the merits of the case." 5.10. In an identical case viz. Bhubaneswar Development Authority Vrs. Commissioner of Central Excise, 2015 SCC OnLine Ori 53, where the Show Cause Notice relating to service tax under Chapter-V of the Finance Act, 1994 was under challenge, this Court observed as follows: "5. After hearing the learned counsel for the respective parties, it would be relevant herein to take note that the judgment of the Hon'ble Supreme Court in the case of Collector of Central Excise, Hyderabad Vrs. M/s. Chemphar Drugs and Liniments, Hyderabad, (1989) 2 SCC 127 and in particular, Para-9 thereof is quoted as hereunder: "9. *** In order to make the demand for duty sustainable beyond a period of six months and up to a period of 5 years in view of the provi....
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....d the appeal filed by the revenue on the basis that it did not want to interfere the facts determined by the Tribunal in the said case. 8. In the present set of circumstances of the case, any finding by the Court at this stage is likely to be prejudicial, either the Petitioner-BDA or the Service Tax Authority. ***" 5.11. In Supreme Paper Mills Limited Vrs. Assistant Commissioner of Commercial Taxes, (2010) 11 SCC 593 = (2010) 31 VST 1 (SC), the Hon'ble Supreme Court, after taking note of earlier case being Sales Tax Officer, Ganjam Vrs. Uttareswari Rice Mills, (1973) 3 SCC 171 = 1973 SCC (Tax) 123 = AIR 1972 SC 2617 = (1972) 30 STC 567 (SC) = (1973) 89 ITR 6 (SC), wherein challenge was made to Show Cause Notice, has been pleased to make the following observation: "14. In our considered opinion, the ratio of the aforesaid decision in Uttareswari Rice Mills case [(1973) 3 SCC 171 = 1973 SCC (Tax) 123] of this Court is squarely applicable to the facts of the present case. The expression used in Section 11-E of the Act is that the Commissioner must be satisfied on information or otherwise that the registered dealer has furnished incorrect statement of his turnover ....
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.... determined by the Central Excise Officer. Without going into other details regarding the period of limitations and the circumstances under which show-cause notice can be issued, the crux of the matter is that such determination is after the issuance of show-cause notice followed by affording of opportunity and consideration of representation, if any, made by the person concerned. *** 10. The issuance of show-cause notice under Section 11-A also has some significance in the eye of the law. The day the show-cause notice is issued, becomes the reckoning date for various issues including the issue of limitation. If we accept the submission of the respondent that a prima facie view entertained by the department whether the matter requires to be proceeded with or not is to be taken as a decision or determination, it will create an imbalance in the working of various provisions of Section 11-A of the Act including periods of limitation. It will be difficult to reckon as to from which date the limitation has to be counted. *** 13. It must be noted that while issuing a show-cause notice under Section 11-A of the Act, what is entertained by the Department....
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.... Driveshafts (India) Ltd. Vrs. ITO, (2003) 1 SCC 72 = 2002 SCC OnLine SC 1116 as the guiding rule for the Adjudicating Authorities as enunciated by the Hon'ble Apex Court. Paragraph 5 of said Judgment speaks as follows: "5. We see no justifiable reason to interfere with the order under challenge. However, we clarify that when a notice under Section 148 of the Income Tax Act is issued, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notices. The assessing officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the assessing officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the above said five assessment years." 5.16. The Hon'ble Supreme Court in the case of State of Maharashtra and Others Vrs. Greatship (India) Limited, 2022 SCC OnLine SC 1262 reiterated the scope of inter....
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....ing interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged." 50. In Punjab National Bank Vrs. O.C. Krishnan, (2001) 6 SCC 569 this Court considered the question whether a petition under Article 227 of the Constitution was maintainable against an order passed by the Tribunal under Section 19 of the DRT Act and observed : (SCC p. 570, paras 5-6) "5. In our opinion, the order which was passed by the Tribunal directing sale of mortgaged property was appealable under Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short 'the Act'). The High Court ought not to have exercised its jurisdiction under Article 227 in view of the provision for alternative remedy contained in the Act. We do not propose to go into the correctness of the decision of the High Court and whether the order passed by the Tribunal was correct or not has to be decided before an appropriate forum. 6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal pro....
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....on under Article 226 of the Constitution. 30. The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the petitioner has any alternative or effective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors. The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the Court and particularly in cases where public revenue and public interest are involved. Such directions are always required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State....