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2016 (3) TMI 1004 - MADRAS HIGH COURT

2016 (3) TMI 1004 - MADRAS HIGH COURT - 2016 (42) S.T.R. 799 (Mad.) - Seeking release of payments due to the petitioner along with suitable interest - Execution of the works in favour of the first respondent to the tune of ₹ 67 lakhs - Services carrying on are cable laying works and rehabilitation of external plant to various parties - Held that:- In the absence of any averment stated in the affidavit, filed in support of the writ petition that the petitioner got the leave from BIFR for fi .....

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use in the contract between the first respondent and the petitioner with regard to the payment of Service Tax by the petitioner. In such circumstances, in the absence of any contract between the petitioner and the first respondent with regard to the payment of service tax and the reimbursement of the same, the said issue cannot be gone into in the writ petition. Therefore, the claim made by the petitioner can be decided only by a competent civil Court and not under Article 226 of the Constitutio .....

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ently direct the first respondent to release all the payments due to the petitioner for executing the works in favour of the first respondent to the tune of ₹ 67 lakhs, along with suitable interest. 2. According to the petitioner, they are carrying on cable laying works to various parties, including the first respondent. By letter of Indent dated 17.11.2005, the first respondent was awarded a letter of Indent for upgradation/rehabilitation of external plant net work of Chennai Telephones. .....

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ner brought to the notice of the first respondent about the amendment carried out in the Finance Act, 2005 with effect from 16.6.2005 by stating that the services carried out by the petitioner for the first respondent pursuant to the letter of Indent dated 17.11.2005 is liable to service tax. While presenting the rates, the petitioner had not anticipated service tax imposition and now that, the first respondent has to bear the service tax burden, being the indirect tax levy, which can be passed .....

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laying of telephone cables to BSNL and other public sector undertakings, directly as well as through sub contractors. The show cause proceedings culminated in order dated 25.3.2011 passed by the second respondent, wherein, the second respondent had confirmed that the activity performed by the first respondent to BSNL and other public sector undertakings would tantamount to taxable service and liable to service tax. According to the petitioner, though Service Tax has been paid by the petitioner, .....

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e petitioner firm from the payments received from BSNL and other customers till the issues are resolved with the service tax department. 6. The first respondent contended that the first respondent Company has been declared as a Sick Industrial Company, based on the audited balance sheet in terms of Sec.3(1)(o) of the Sick Industrial Companies (Special Provisions) Act 1985 (SICA) by the Board for Industrial and Financial Reconstruction (BIFR) and State Bank of India has been appointed as the Oper .....

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orders from BSNL and in turn, sub contracted the same to the petitioner on back to back basis, keeping a margin of only 4% of the order value. Further, the first respondent contended that the petitioner cannot agitate the issues by invoking the writ jurisdiction and the writ petition is not maintainable. 8. According to the respondents 2 and 3, they are not necessary parties to this writ petition. 9. Mr.R. Bharanidharan, learned counsel for the petitioner, in support of his contention, relied u .....

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ional Ltd vs Export Credit Guarantee Corpn of India Ltd. The legal position becomes clear when the decision in Suganmal is read with the other decisions of this Court on the issue, referred to below: (i) Normally, a petition under Article 226 of the Constitution of India will not be entertained to enforce a civil liability arising out of a breach of a contract or a tort to pay an amount of money due to the claimants. The aggrieved party will have to agitate the question in a civil suit. But an o .....

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ile enforcing fundamental or statutory rights, has the power to give consequential relief by ordering payment of money realised by the Government without the authority of law (Vide State of M.P vs Bhailal Bhai) (iii) A petition for issue of writ of mandamus will not normally be entertained for the purpose of merely ordering a refund of money, to the return of which the petitioner claims a right. The aggrieved party seeking refund has to approach the civil court for claiming the amount, though th .....

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y alleged to have been illegally collected is not ordinarily maintainable, if the allegation is that the assessment was without a jurisdiction and the taxes collected was without authority of law and therefore the respondents had no authority to retain the money collected without any authority of law, the High Court has the power to direct refund in a writ petition. (Vide Salonah Tea Co Ltd vs Supdt of Taxes) (v) It is one thing to say that the High Court has no power under Article 226 of the Co .....

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ld to be unconstitutional or invalid, refund is not an automatic consequence but may be refused on several grounds depending on facts and circumstances of a given case (Vide U.P Pollution Control Board vs Kanoria Industrial Ltd) (vi) Where the lis has a public law character, on involves a question arising out of public law functions on the part of the State or its authorities, access to justice by way of a public law remedy under Article 226 of the Constitution will not be denied (Vide Sanjana M .....

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