Case Law Details
Gopikrishna Infrastructure Pvt Ltd Vs State of Jharkhand (Jharkhand High Court)
Contractors are entitled to reimbursement of the GST impact also on indirect transactions on which GST was imposed.
This is a settled law that the State and its instrumentalities are required to demonstrate fair play in action. In “ABL International Ltd. and Another”17 the Hon’ble Supreme Court observed that even in contractual matters, the State and its instrumentalities are required to follow the equality clause under Article 14 of the Constitution of India. The petitioner-Firms were agitating for their right to refund/reimbursement for long. They have brought on record the copies of their representations made to the JBVNL, and the response thereto by the JBVNL was that the matter is pending litigation. On the point of similarity of facts with M/s Techno Electric and Engineering Company Limited, suffice it would be to record that the NITs, GCCs, LOAs, and the GST clause introduced in the LOAs are the same. A pre-bid clarification letter dated 30th June 2016 was issued to all the Implementing Agencies for clarification on the statutory tax valuations upon the introduction of the GST. Now only because the NITs were floated on different dates or the LOAs or the Agreements were executed pre-GST regime, the benefit of GST reimbursement on indirect transactions under the amended clause 10.7 of the GST cannot be denied to such petitioner-Firms. The stand taken by the JBVNL that the pre-bid clarification which resulted in amendment in clause 10.7 and subsequent incorporation of clause 28 in the GCC shall not be available to the petitioner-Firms violates the basic norm of justice, equity and fair play. It is not disputed that the nature of the work awarded to the petitioner-Firms in both phases is the same and the execution of the work under the previous contracts was in progress when the amendment in clause 10.7 of the GCC was made. We think that no distinction can be drawn on the basis of the date of execution of the Agreement and the benefit of the amended clause 10.7 of the GCC cannot be denied to the petitioner-Firms if the GST regime was brought into force in the course of the performance of the contract. We therefore hold that the petitioner-Firms referred to in paragraph no.27 and other similarly situated Contractors are entitled to reimbursement of the GST impact also on the indirect transactions on which the GST was imposed.
In the result, the writ petitions are allowed to the extent that the JBVNL shall calculate and reimburse the petitioner-Firms the GST component paid by them and it shall release the withheld amount from the bills of the petitioner-Firms, if any. As held by co-ordinate Bench, the petitioner-Firms are entitled for reimbursement of the GST along with statutory interest in terms of the GST Act, 2017 read with the Rules framed thereunder.
FULL TEXT OF THE JUDGMENT/ORDER OF JHARKHAND HIGH COURT
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