TMI Blog2007 (4) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... /s Ellora Constructions, is also one of the offerers. For convenience we will refer to respondent Nos. 2 to 4 as the respondents. 4. In or about Feb./March, 2006, M.S.R.D.C. had invited tenders for allotment of the toll collection contract at Lahuki on the Aurangabad-Jalna Road. The petitioner purchased the tender documents on 6-3-2006. 5. It is necessary to refer to one aspect that preceded the disputes in the present writ petition. To the normal conditions of such tenders, the respondents added Sub-clause (h) to Clause 23 of the present Tender which reads as under: Intending bidder who has got the tendency to go for litigation against M.S.R.D.C. regarding fixing the agency approved by the M.S.R.D.C. (or to go for litigation for any other cause) thereby causing financial loss to the Corporation, shall not be considered for eligibility. M.S.R.D.C. has full power to decide eligibility of intending bidder based on above criteria. 6. The petitioner, on grounds not necessary to elaborate, contended that this clause was introduced mala fide only to exclude him. The petitioner challenged the same by filing Writ Petition No. 2242/2006 in this Court. The petitioner's grieva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4). It is also admitted that the balance sheet in respect of the sole proprietary business of the petitioner was audited in accordance with Section 44AB of the Income Tax Act. It was contended, however, that, the petitioner's personal balance sheet was not audited and was, therefore, not acceptable as per Clause 2.3.5. The admission and the ground are amplified in paragraph 17(i) of the said reply which reads as under: (i) Disqualification on the ground of inadequate net worth - For the Lahuki toll station - The petitioner has submitted audited balance sheet in the firm's name where the net worth is less than the prescribed limit of ₹ 72 lacs. Another personal balance sheet of the petitioner reflects the net worth, which exceeds the prescribed limit, however the balance sheet is not audited as per Clause 2.3.5. on page 7 of the offer document, therefore the petitioner was/is disqualified. 11. The petitioner is an individual who also carries on business in the firm name and style of M/s Ghai Constructions as a sole proprietor thereof. The petitioner's income is assessed under different heads, including in respect of his business income. There is no dispute t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecified date and furnished by that date the report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars as may be prescribed : Provided that this section shall not apply to the person, who derives income of the nature referred to in Section 44B or Section 44BB or Section 44BBA or Section 44BBB, on and from the 1st day of April, 1985 or, as the case may be, the date on which the relevant section came into force, whichever is later: Provided further that in a case where such person is required by or under any other law to get his accounts audited, it shall be sufficient compliance with the provisions of this section if such person gets the accounts of such business or profession audited under such law before the specified date and furnished by that date the report of the audit as required under such other law and a further report in the form prescribed under this section. Explanation : For the purposes of this section,--(i) Accountant shall have the same meaning as in the Explanation below Sub-section (2) of Section 288; (ii) Specified date , in relation to the accounts of the previous year relevant to an asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtnership or a body of individuals. An interpretation contrary to the one suggested by us would require not merely the firm but every partner thereof and not merely the body of individuals but every member thereof to have his individual income, unrelated to the business of the firm or the body of individuals, also to be audited. This would amount to rewriting the section altogether. 21. In order to ascertain the scope of Section 44AB, it is useful to note that, on 2-3-1970, the Government of India constituted a high power committee of experts under the chairmanship of Sri Justice K.N. Wanchoo, retired Chief Justice of India, to examine and suggest legal and administrative measures to unearth black money, to check the avoidance of tax arrears and to indicate the manner in which the tax assessment and tax administration may be improved and for giving effect to the recommendations. The Wanchoo Committee, in its final report submitted to the Government of India in December, 1971, inter alia, recommended mandatory audit at least in the big cases. The recommendation was also with a view to saving considerable time of the assessing officers which could then be utilized by them for more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e an identical fact situation. This contention taken for the first time is also an afterthought. 27. Mr. Adwant then submitted that the petitioner was also found ineligible in view of the fact that he had filed proceedings against the respondents. This contention is rather curious, especially in view of the fact that Clause 23(h) had been deleted by the respondents. 28. However there is nothing to suggest that the legal proceedings adopted by the petitioner were at all mala fide or vexatious. The mere fact that a citizen challenges the action of a public body in accordance with law cannot, ipso facto, brand him undesirable for the purpose of considering him for public contracts. 29. Mr. Adwant submitted that the petitioner's offer was rejected also on the ground of failure to fulfil the demands made by the Corporation and failure to submit a Bank guarantee in respect of another Toll Station. 30. This submission too appears to be a mere afterthought. This was not the ground on which the petitioner was found ineligible. We have mentioned earlier, the document tendered by Mr. Adwant, which stipulated only one ground/reason for rejecting the petitioner's tender, nam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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