TMI Blog2022 (4) TMI 1453X X X X Extracts X X X X X X X X Extracts X X X X ..... im in accordance with law. Petition dismissed. - W.P.(C) No. 26646 of 2021 - - - Dated:- 4-4-2022 - JUSTICE JASWANT SINGH AND JUSTICE M.S. RAMAN For the Petitioner : Mr. Prabodha Chandra Nayak, Advocate For the Respondent : Mr. Lalatendu Samantaray, Additional Government Advocate ORDER 1. This matter is taken up by virtual/physical mode. 2. In the garb questioning the propriety of Revised Guidelines relating to works contract vide the Office Memorandum bearing No.38535-FIN-CT1-TAX-0045-2017/F., dated 10.12.2018 issued by the Government of Odisha in Finance Department, the petitioner has sought for issue of writ of mandamus by invoking jurisdiction under Article 226 of the Constitution with the following reliefs: It is, therefore, prayed that, this Hon ble Court may be graciously pleased to issue Rule NISI, in the nature of any appropriate writ/writs and/or direction/directions calling upon the opposite parties to show cause as to why- i. The action and decisions of the opposite parties shall not be declared illegal, unconstitutional and violative of legal right of the petitioner on account of the taxes being shared and borne by the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue of that goods or service shall be determined by removing the embedded tax incidences of VAT, Entry Tax, Excise Duty, Service Tax, etc. from the estimated quoted price. Counsel for the petitioner, therefore, relied on paragraph 15 of the writ petition wherein it has been contended as follows: That as per the GST Act the liability of the petitioner is 12%, which is not achieved due to such faulty circular as well as the post GST schedule SoR. Further there is no dispute that the petitioner is not liable to pay 12% of GST as a works contractor. As such the said revised SoR is arbitrary, as such, this Hon ble Court may direct to the opposite parties to prepare fresh SoR and calculate the differential GST to minimize the problem. 5. Per contra, Mr. Lalatendu Samantaray, Additional Government Advocate appearing for opposite party No.1 argued that the petition challenging the vires of Office Memorandum bearing No.38535-FIN-CT1-TAX-0045- 2017/F., dated 10.12.2018 is not maintainable in view of the fact that by very many works contractors on the advent of the GST statute with effect from 01.07.2017, challenged Office Memorandum bearing No.36116-FIN-CT1-TAX- 0045-2017/F., dated 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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? ii. the Opp. 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 VAT law. iii. the Office Memorandum dated 10.12.2018 issued by the Opp. Party No. 4 under Annexure-3 shall not be declared illegal, arbitrary, unreasonable and same shall not be quashed. iv. further the process adopted by the Opp. Parties in preparation of revised SoR dated 15.09.2017 under Annexure-8 shall not be declared illegal, arbitrary and same shall not be quashed. v. why the notice issued by the Opp. Party No. 9 under Annexure-9 shall not be declared illegal, arbitrary and same shall not be quashed? vi. why the Opp. Party 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? *** 11. The basic price of materials as per SoR-201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of the work gets reduced to that extent. This was prepared under the recommendation of a Code Revision Committee and after verification of tax rate in the pre-GST period of each of the items including the hire charges of machineries. *** 29. In the instant case, three components of the tax, i.e., subject of tax, person liable to pay the tax and rate of tax has been clearly defined in the statute. The OM dated 10th December, 2018 only prescribes the manner/procedure of calculation to determine the amount of tax in a particular eventuality in the transitional period of migration to GST Act with effect from 1st July, 2017. Consequently, the Court finds no merit in the Petitioner s challenge to the said OM in law. 5.2. Mr. Samantaray, Additional Government Advocate, referring to paragraph 10 of the writ petition, wherein the petitioner has attacked the Office Memorandum bearing No.38535-FIN-CT1-TAX-0045-2017/F., dated 10.12.2018 on the specious ground that said Memo is not in conformity with the Guidelines issued by the National Rural Infrastructure Development Agency, Ministry of Rural Development, Government of India vide File No. NRRDAGO21( 17)/32017-FA, dated 06.06.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court, therefore, proceeds with the evidence enclosed to the writ petition supported by affidavit. 7.2. This Court in identical situation being the case of Chandra Sekhar Jena Vrs. State of Odisha and Others, W.P.(C) No.23703 of 2021 vide Order dated 30.10.2021 held as follows: 1. Although learned counsel for the Petitioner seeks to have the order similar to the one passed by this Court on 13th January, 2021 in W.P.(C) No.23906 of 2020, it is seen that the agreement in question is dated 26th April, 2016 with the time for completion being 11 months. Clearly, therefore, any claim now raised arising from the said contract would be time barred. It is, therefore, not possible to accede to the prayer of the Petitioner. 2. The writ petition is dismissed. 8. The instant matter being similar to that of the case decided by this Court in Chandra Sekhar Jena Vrs. State of Odisha and Others, W.P.(C) No.23703 of 2021 vide Order dated 30.10.2021, the present writ petition is hereby dismissed in the similar fashion and, thus, this Court holds that the claim of the petitioner is hit by law of limitation. 9. Before parting, this Court wishes to observe that the petitioner has mad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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