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TMI Blog2022 (8) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... declared illegal, unconstitutional and violative of legal right of the petitioner on account of the taxes being shared and borne by the petitioner on post enactment Goods and Services Tax Act, 2017, thereby infringing the Goods and Services Tax, 2017; ii. The opposite parties shall not be directed to restitute the benefit of GST to the petitioner along with interest within a stipulated period in respect of work in which the estimated was prepared under the VAT law; iii. The Office Memorandum dated 10.12.2018 issued by the opposite party No.2 under Annexure-2 shall not be declared illegal, arbitrary, unreasonable and same shall not be quashed; iv. The opposite party No.5 shall not be directed to realize the GST amount from the principal employer and be restrained not to take any coercive against the petitioner till benefit granted by the opposite party Nos.1 to 3; v. The opposite parties shall not be directed to prepare a fresh schedule of rates considering rapidly change of rate and price and calculate the differential amount of GST on the contract in which estimate was prepared under VAT." 3. The petitioner, Sk. Kashim, works contractor, claiming to be proprietor of M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by very many works contractors on the advent of the GST statute with effect from 01.07.2017, Office Memorandum bearing No.36116-FIN-CT1-TAX-0045- 2017/F., dated 07.12.2017 was challenged. During the pendency of the writ petitions, being W.P.(C) No. 6178 of 2018 : All Orissa Contractors Association Vrs. State of Odisha, and other cases, the Government of Odisha in Finance Department brought out Revised Guidelines for works contract vide Office Memorandum bearing No.38535-FIN-CT1-TAX-0045-2017/F., dated 10.12.2018. This Court vide Order dated 12.12.2018 disposed of said writ petition(s) by extracting the Revised Guidelines in extenso and held as follows: "*** In that view of the matter, the Petitioner shall make a comprehensive representation before the appropriate authority within four weeks from today ventilating the grievance. If such a representation is filed, the authority will consider and dispose of the same, in the light of the aforesaid revised guidelines dated 10th December, 2018 issued by the Finance Department, Government of Odisha, as expeditiously as possible, preferably by 31.03.2019. If the petitioner(s) will be aggrieved by the decision of the authority, it will b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and calculate the differential amount of GST on the contract in which estimate was prepared under VAT?' 11. The basic price of materials as per SoR-2014 was inclusive of VAT, entry tax and other tax components. Since 1 July 2017 GST is payable on the value of the contract, the value of tax components in the price of the materials in SoR-2014 was revised and reduced by excluding such tax components prevalent during pre- GST period. As such, the revised SoR-2014 was issued on 16 September, 2017. 12. The Petitioner complains that the procedure adopted in the preparation of the revised SoR-2014 dated 16 September, 2017 (Annexure-8) is illegal, arbitrary and contrary to the provisions of Odisha Public Works Department Code (OPWD Code) and that the rates have not been determined on the basis of actual rates prevailing in different areas of the State. 13. The said submission of the Petitioner is not found acceptable because the rates of materials are to be maintained uniformly all over the State. Further, if there is any difference in the actual rate and scheduled rate in any particular area, the Petitioner could submit the same to the employer and this has nothing to do wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Rural Infrastructure Development Agency, Ministry of Rural Development, Government of India vide File No. NRRDAGO21( 17)/32017-FA, dated 06.06.2018, submitted that the same does not hold water in view of the fact that this Court threadbare comparing said Office Memorandum being NRRDA-GO21(17)/32017-FA, dated 06.06.2018 vis-à-vis Office Memorandum No.38535-FIN-CT1-TAX-0045- 2017/F., dated 10.12.2018 in the matters of Harish Chandra Majhi Vrs. State of Odisha and others, 2021 SCC OnLine Ori 643 = (2021) 51 GSTL 113 = (2021) 93 GSTR 354 (Ori) upheld the impugned Office Memorandum. 5.3. Therefore, Mr. Samantaray submitted that the writ petition is liable to be dismissed with cost inasmuch as all the grounds of challenge has already been set at rest by this Court on earlier occasion. 6. Mr. Prabodha Chandra Nayak, Advocate for the petitioner has conceded to the aforesaid position as set forth by this Court and placed by Mr. Samantaray, Additional Government Advocate. This Court, therefore, finds merit in the submission of the learned Additional Government Advocate. Having the opportunity to go through the Judgment of this Court in the case of Harish Chandra Majhi Vrs. St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court hold that the claim of the petitioner is hit by law of limitation. 8. Before parting, this Court wishes to observe that the petitioner has made a prayer to restrain the opposite party No.5-CT&GST Assessment Unit, Rairangpur, CT&GST Circle, Mayurbhanj, from taking any coercive steps against the petitioner to recover amount of GST. Qua such a prayer, it is noteworthy to record that the task of determining the differential GST, i.e. segregating labour, material, etc. is of the Authority vested with power under the CGST/OGST Act and not within the domain of any other. Such segregation can be made keeping in view inter alia Revised Guidelines dated 10th December 2018 issued by the Finance Department, Government of Odisha. 8.1. The question whether, in fact, any amount is owed to the Petitioner by Opposite Parties on account of GST deducted from its bills or vice versa, has become a highly disputed question of fact. The claim of the Petitioner ultimately, in simple terms, is one for money which it seeks as reimbursement from Opposite Parties. It is not possible for this Court in its writ jurisdiction under Article 226 of the Constitution to calculate on a case to case basis whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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