Karnataka High Court
N V Kulkarni Construction Company vs The State Of Karnataka on 27 June, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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WP No. 103557 of 2024
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO.103557 OF 2024 (T-RES)
BETWEEN:
N.V. KULKARNI CONSTRUCTION COMPANY,
A REGISTERED PARTNERSHIP FIRM UNDER
THE INDIAN PARTNERSHIP ACT, 1932,
B-15, PANDARI KRUPA, VIVEK NAGAR EAST,
VIJAYAPURA-586101, R/BY ITS PARTNER,
SRI. NARYAN RAO VITTAL RAO KULKARNI,
AGED ABOUT 54 YEARS,
S/O SRI. VITTAL RAO KULKARNI.
... PETITIONER
(BY SRI M. THIRUMALESH AND
SMT. ROOPA ANAVEKAR, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA,
BHARATHI
FINANCE DEPARTMENT,
HM II FLOOR, VIDHANA SOUDHA,
Digitally signed by
BENGALURU-560001
BHARATHI H M
Location: HIGH COURT OF
KARNATAKA DHARWAD
BENCH
REP. BY ITS ADDL. CHIEF SECRETARY.
Date: 2024.07.06 12:16:26
+0530
2. COMMISSIONER OF COMMERCIAL TAXES,
GOVERNMENT OF KARNATAKA,
VANIJYA THEREIGE KARYALAYA,
1ST MAIN ROAD, GANDHI NAGAR,
BENGALURU-560009.
3. EXECUTIVE ENGINEER,
PROJECT DIVISION,
RURAL DEVELOPMENT AND
PANCHAYAT RAJ DEPT.,
BADEKAMAN ROAD,
VIJAYAPURA-586101.
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WP No. 103557 of 2024
4. EXECUTIVE ENGINEER,
KRISHNA BHAGYA JALA NIGAM LTD.,
MLI DIVISION NO.2, BABLESHWAR,
VIJAYAPURA-586101.
5. EXECUTIVE ENGINEER,
THE NATIONAL HIGHWAY DIVISION,
VIJAYAPURA-586101.
... RESPONDENTS
(BY SRI SHIVAPRABHU S. HIREMATH, ADDL. GOVERNMENT
ADVOCATE.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO:
I) ISSUE A WRIT IN THE NATURE OF WRIT OF
DECLARATION, DECLARING THAT THE PETITIONER IS ENTITLED FOR
REIMBURSEMENT OF THE DIFFERENTIAL GST AMOUNT PAID BY THE
PETITIONER FOR THE WORKS EXECUTED AS PER REPRESENTATIONS
DATED 03-01-2024 AND 13-01-2024 FILED BEFORE RESPONDENT
NOS.3, 4 AND 5- ANNEXURES-F, G AND H.
II) ISSUE OF WRIT OR SUCH OTHER ORDER IN THE
NATURE OF WRIT OF MANDAMUS DIRECTING RESPONDENT NOS.3, 4
AND 5 TO REFUND THE DIFFERENTIAL GST AMOUNT PAID BY THE
PETITIONER FOR THE WORK EXECUTED AS PER REPRESENTATIONS
DATED 03-01-2024 AND 13-01-2024 FILED BEFORE RESPONDENT
NOS.3, 4 AND 5 ANNEXURES F, G AND H.
III) ISSUE OF WRIT OR SUCH OTHER ORDER DIRECTING
THE RESPONDENT NO.1, THE STATE GOVERNMENT, TO ISSUE A
CIRCULAR/POLICY TO ADDRESS THE ISSUE OF PAYMENT OF GST ON
WORKS CONTRACT WHICH ARE EXECUTED UNDER OLD SCHEDULE
OF RATES IN RESPECT OF WORKS EXECUTED FOR GOVERNMENT
DEPARTMENTS, LOCAL AUTHORITIES OF GOVERNMENTAL
AUTHORITY WHEREIN GST IS NOT PAID BY THE
AWARDER/EMPLOYER OF WORKS CONTRACTOR BUT LEVIED AND
PAID BY THE PETITIONER TO GST DEPARTMENT AND ETC.,.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
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WP No. 103557 of 2024
ORDER
Heard the learned counsel for the petitioner.
2. Learned Addl. Government Advocate is directed
to take notice for all the respondents.
3. It is the case of the petitioner that he is a Class-I
contractor engaged in execution of works contracts and
registered in the Central Goods and Services Tax Act and
Karnataka Goods and Services Tax Act, 2017. The petitioner
executed contracts as per terms and conditions laid down in
the tenders floated by respondent No.3 at the time of
inviting the tender. During the pre-GST regime the tax rate
was 4% under the Karnataka Value Added Tax Act.
Subsequent to introduction of GST regime, the rate of tax
increased to 12% resulting in significant disparity on the tax
rates applied. Therefore, learned counsel for the petitioner
contends that the transition has lead to overpayment of tax
by the petitioner as at the time of inviting the tender it was
4% and in view of the GST coming into force w.e.f.
01.07.2017, it was increased to 12%. The petitioner
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executing the contract with respondent No.5 is not disputed.
Of course there cannot be any dispute with regard to old
regime of pre-GST and post regime of GST, so also the tax
rates. In view of the change of regime, petitioner made a
representation to the respondents No.3 to 5 to consider their
representation and reimburse the excess tax paid. However
the representations made by the petitioner were not
considered. Due to the inaction of the respondents,
petitioner is before this Court seeking interference.
4. Learned counsel for the petitioner relies on the
judgment of this Court in a similar case in
W.P.No.106756/2023, which relied upon at the batch of
petitions in W.P.No.9721/2019 and connected matters
disposed of on 11.04.2023 wherein similar issue had arisen
and the petitions were allowed.
5. Learned Addl. Government Advocate representing
the respondents submits, there is no dispute with regard pre
and post regime of GST and the percentage that was
imposed at the time of and post allotment of tender. He also
fairly contends that he cannot dispute the judgment referred
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by the learned counsel for petitioner and to that extent he
submits that this petition could be disposed of in view of the
earlier judgment passed by this Court.
6. In view of the submission made by the learned
counsel for petitioner as well as learned Addl. Government
Advocate and the decisions rendered by this Court stated
herein supra, wherein the entire details have been laid down
and the orders have been passed by this Court in the
connected matters, nothing much survives for consideration
except following the judgment in the case of
W.P.No.9721/2019 and connected matters. Accordingly,
I pass the following:
ORDER
i) The petition is disposed of directing the
respondents to consider the representation of the petitioners
produced at Annexure-F, G and H and pass suitable orders in
accordance to the above mentioned judgments stated supra
in W.P.No.9721/2019 and connected matters and if the
petitioner is entitled to refund, for having paid the excess
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amount, the same shall be refunded/adjusted within a period
of four weeks from the date of receipt of a copy of this order.
Sd/-
JUDGE
MRK
CT:BCK
