TMI Blog2016 (3) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... ion cannot be maintained at this stage. That apart, when the contract is between the first respondent and the petitioner, who is a sub contractor of the first respondent, the claim made by the petitioner to the tune of ₹ 67,00,000/- cannot be made in the writ petition. the contract was only between the first respondent and the BSNL and the petitioner is not a party to the said contract. Further, there is no clause 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ones. In otherwords, the first respondent had received orders from BSNL and in turn, has sub contracted the same to the petitioner on a back to back basis. By letter dated 06.02.2006, the petitioner 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 on to the first respondent. 3. The petitioner has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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 Operating Agency under Sec.17(3) of the Act to prepare a revival Scheme. Further, the BIFR gave a direction that no coercive recovery action can be taken against the first respondent Company by any authority or party, without taking prior approval of the Bench. Further, even as per the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 order for payment of money may be made in a writ proceeding, in enforcement of statutory functions of the state or its officers.(vide Burmah Construction Co vs State of Orissa) (ii) If a right has been infringed - whether a fundamental right or a statutory right and the aggrieved party comes to the Court for enforcement of the right, it will not be giving complete relief if the Court merely declares the existence of such right or the fact that existing right has been infringed. The High Court, while enforcing fundamental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to issue a writ of mandamus for making refund of the money illegally collected. It is yet another thing to say that such power can be exercised sparingly depending on facts and circumstances of each case. For instance, where the facts are not in dispute, where the collection of money was without the authority of law and there was no case of undue enrichment, there is no good reason to deny a relief of refund to the citizens. But even in cases where collection of css, levy or tax is held 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Constitution of India. 13. In these circumstances, the judgment relied upon by the learned counsel for the petitioner is not applicable to the present case. Therefore, the writ petition is devoid of merits and the same is dismissed. However, it is open to the petitioner to file a civil suit as against the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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