K.Sreekumar vs Chief Electrical Engineer
2023 Latest Caselaw 10591 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
    THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                                &
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
  MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945
                    WA NO. 1802 OF 2023
   AGAINST THE JUDGMENT WP(C) 32206/2023 OF HIGH COURT OF
                              KERALA
APPELLANT/PETITIONER:

         K.SREEKUMAR
         AGED 71 YEARS
         PROPRIETOR, QUILON CONSULTING ENGINEERS, DIVYA
         NAGAR, 17, PATTATHANAM-P.O, KOLLAM.,
         PIN - 691021

         BY ADVS.
         K.N.SREEKUMARAN
         P.J.ANILKUMAR (A-1768)
         N.SANTHOSHKUMAR



RESPONDENTS/1ST RESPONDENT:

    1    CHIEF ELECTRICAL ENGINEER
         OFFICE OF THE CHIEF ELECTRICAL ENGINEER, PWD
         PUBLIC OFFICE COMPLEX, MUSEUM-P.O,
         THIRUVANANTHAPURAM, PIN - 695003

    2    EXECUTIVE ENGINEER
         PWD ELECTRICAL DIVISION, CIVIL STATION,
         ERANHIPPALAM, KOZHIKKODE, PIN - 673020
 WA No.1802/2023

                            -:2:-

    3     ASSISTANT COMMISSIONER
          TAX PAYER SERVICES CIRCLE, KOLLAM EAST, TAX
          COMPLEX, ASRAMAM, KOLLAM, PIN - 691002

    4     STATE OF KERALA, REPRESENTED BY THE SECRETARY FOR
          PUBLIC WORKS
          GOVERNMENT SECRETARIAT, ANNEXE-
          2,THIRUVANANTHAPURAM, PIN - 695001


OTHER PRESENT:

           SR GP DR THUSHARA JAMES



     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WA No.1802/2023

                               -:3:-



                         JUDGMENT

Kauser Edappagath, J.

This writ appeal has been filed challenging the judgment of

the learned Single Judge in WP(C) No.32206/2023 dated 3 rd

October, 2023.

2. The appellant is a Class - A Electrical Contractor

registered with the Kerala Public Works Department. He was

awarded the contract for the execution of the electrical works

regarding the augmentation of the power system in Government

Medical College, Kozhikode pursuant to the tender dated

28/5/2019 invited by the 1 st respondent. An agreement for the

execution of the said work was executed between the appellant

and the 1st respondent on 13/6/2019 governing the terms and

conditions, and the appellant carried out the said work. In the

course of the periodical submission of the bills for the work done,

the appellant was paid the total contract amount of WA No.1802/2023

`3,64,56,779/- as on 31/3/2023 which includes GST @2%

deducted at source. The tender for the works was invited by the

1st respondent after the enactment of GST laws w.e.f. 1/07/2017.

"Works contract" falls within the ambit of S.2(119) of the GST Act,

2017 and composite works contract executed for Government is

taxable @12% as per Notification No.20/2017 up to 31/12/2021

and after that, the enhanced rate of 18% w.e.f 1/01/2022 as per

Notification No.15/2021 CT(Rate) dated 18/11/2021. According to

the appellant, apart from deducting 2% towards the GST

component from the eligible contract amount, the 1 st respondent

did not pay any amount towards GST to him though he was

discharging the tax liability @12%/18% by declaring the contract

receipts in the returns filed under the GST Act. In these

circumstances, the appellant has approached this Court to give a

direction to the respondents to reimburse him the tax paid

@12%/18% on the work he executed. The learned Single Judge

dismissed the writ petition as per the impugned judgment holding

that the appellant's remedy is to approach the civil court.

3. We have heard Sri.K.N.Sreekumaran, the learned WA No.1802/2023

counsel for the appellant and Dr.Thushara James, the learned

Senior Government Pleader.

According to the appellant, though the total amount of

estimate for the work should be arrived at exclusive of GST, and

the payment has to be made to the contractor for the total value

of the work at contract rate plus the applicable GST, the 1 st

respondent has only deducted GST @2% from the contract

amount. He contends that he paid the tax due on the contract

receipts @12%/18% out of his own pocket. But the 1 st

respondent took the stand that contract rates are based on 2016

DSR rates adopted for Government works and hence, tax at the

applicable rate under the GST Act cannot be paid to the

appellant. The question whether the appellant is entitled to be

paid GST @12%/18% on the contract amount received or not is a

disputed question of fact which cannot be decided in a writ

petition filed under Article 226 of the Constitution of India. The

determination of the said question includes the interpretation of

the terms of the contract entered into between the appellant and

the respondents. Such an exercise cannot be undertaken by the WA No.1802/2023

writ court. The remedy open to the appellant is to approach the

civil court as rightly held by the learned Single Judge. We see no

illegality or impropriety in the judgment impugned. Accordingly,

the writ appeal is dismissed.

Sd/-

DR. A.K.JAYASANKARAN NAMBIAR JUDGE

Sd/-

DR. KAUSER EDAPPAGATH JUDGE

Rp