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TMI Blog2009 (3) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... pective districts would purchase eggs. Under the said programme, it was further decided by the Government for supply of soya chunks in case of non-availability of eggs. Instructions dated March 12, 2008 (annexure 2) provide for supply of soya chunks in addition to eggs or in addition to that where surplus fund was available. Pursuant to the Government instructions under annexure 2, opposite party No. 1 floated tender bearing No. 1612/DSWO dated June 9, 2008 (annexure 3) inviting competitive bids for supply of soya chunks for Bolangir district for the year 2008-09. The said Tender Call Notice (for short, "TCN") contained various conditions and eligibility criteria with regard to the persons/firm to participate in the bid. Copy of the said TCN, the details of bid notice for purchase of soya chunks for MDM Programme for the year 2008-09 have been attached to the writ petition as annexure 4. The petitioner submitted the bid before the authority within the stipulated time along with VAT clearance certificate, TIN No. 21101800603 and OST No. BP-II-1157 in respect of the petitioner-firm and all other documents relating to solvency, income-tax clearance, agency licence issued by RTA, PAN n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and style and also had filed monthly VAT returns together with admitted taxes. He obtained VAT clearance certificate in VAT form No. 612 dated February 2, 2008 in the financial year 2007-08 and dated May 26, 2008 in the financial year 2008-09 issued by the Sales Tax Officer, Kantabanji (hereinafter referred to as, "the STO"). The STO, Kantabanji also issued way bills to the petitioner in the month of March, 2008. He received a letter dated June 27, 2008 from the office of the STO, Kantabanji, wherein he has been asked to submit certain documents for making necessary amendment in the registration certificate. In compliance whereof he appeared before the STO, Kantabanji on June 29, 2008 and submitted the required documents and also filed an application for issue of an amended certificate of registration. Relying on section 31(d) of the Orissa Value Added Tax Act, 2004 and rule 30(1)(c) of the Orissa Value Added Tax Rules, 2005, he submitted that cancellation of registration certificate is possible only when the proprietor dies leaving no successor and not otherwise. According to him, cancellation of registration certificate is not warranted when the successor of the proprietor conti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decision that VAT clearance certificate furnished by the petitioner's firm was not a genuine certificate and cannot be accepted. A copy of letter No. 2626 dated June 25, 2008 of the ACCT, Bolangir is annexed to the counter-affidavit as annexure A/1. On the basis of the report of the ACCT, a notice was issued to the petitioner to show cause as to why his tender shall not be cancelled. In reply to the said show-cause notice, the petitioner submitted some old documents, which he had filed along with the tender papers. As no new material was submitted by the petitioner to prove the genuineness of VAT clearance certificate, the show-cause notice submitted by the petitioner was not accepted and the agreement executed with him was revoked. Keeping in view the immediate necessity for supply of soya chunks for the MDM to maintain the nutrition of the young school going children, the Collector thought it fit to negotiate with the opposite party No. 3 for supply of soya chunks. In that process an application was made and opposite party No. 3 agreed to supply soya chunks at the rate quoted by the petitioner. Consequently necessary agreement was executed with opposite party No. 3 for supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther person. The learned counsel appearing on behalf of opposite parties 4, 5, and 6 submitted that the impugned orders under annexures 11 and 12 are revisable orders by the Commissioner of Sales Tax, Orissa, under section 79 of the OVAT Act, 2004 read with rule 18 of the OVAT Rules, 2005. Hence, challenge made by the petitioner against the impugned orders under annexures 11 and 12 in the present writ application is not maintainable. Section 99 of the OVAT Act, 2004 postulates that no dealer shall be entitled to undertake any contract with any Government unless he obtains a certificate in the prescribed manner from the Commissioner to the effect that he has no liability to pay tax nor he has defaulted under the OVAT Act. The petitioner, therefore, made an application for tax clearance certificate in respect of TIN 21101800603 and since there was no liability against the aforesaid TIN, a tax clearance certificate in form VAT-612 has been issued without verifying the entitlement of the applicant which cannot ipso facto give any right to the petitioner that the aforesaid TIN number granted to his late father can be used by him. The registration certificate bearing TIN No. 2110180060 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty No. 3? Law is well-settled that in absence of a valid application accompanied by valid/genuine documents as required in the tender call notice, no contract can be awarded in favour of such person. In the present case one of the criteria is that a participant must be a registered dealer under the OVAT Act and the application must be accompanied by a valid tax clearance certificate. In the present case the application submitted by the petitioner was accompanied by a tax clearance certificate showing TIN No. 21101800603 issued by the STO, Kantabanji. According to the opposite parties the said registration certificate was granted by the Commercial Tax Department to late Dewaram Agarwal, the father of petitioner Sri Koushal Kumar Agarwal. The tax clearance certificate issued in name of M/s. Deepak Trading Co. which was the proprietorship concern of Dewaram Agarwal was furnished along with the application. The petitioner Sri Koushal Kumar Agarwal is not registered dealer under the OVAT Act having any TIN number and the Commercial Tax Department has not issued any tax clearance certificate to the petitioner, Koushal Kumar Agarwal. This amounts to a fraud. Law is well-settled that frau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation for amendment on the situation specified therein. Sri Koushal Kumar Agarwal being not a dealer registered under the OVAT Act is not at all entitled to seek amendment of a registration certificate granted to his late father which was not in force on the date of making application for amendment by the petitioner. Rule 20 of the OVAT Rules provides that no certificate of registration issued under sub-rule (1) or (2) of rule 18 and TIN and SRIN assigned under sub-rule (1), (2) or (4) of rule 19 shall be transferred. Sub-section (d) of section 31 of the Act does not say that on the death of the proprietor to whom certificate of registration was granted, the same shall be treated as a registration certificate of the legal heirs of the deceased. Apart from the above, the registering authority itself has cancelled the certificate of registration granted to late Dewaram Agarwal under annexure 11 and rejected the amendment application of the petitioner under annexure 12. Unless these orders are reversed by the competent authority in the hierarchy, the said orders will govern the field. Thus, it can safely be concluded that on the date when the application was filed in response to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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