IMPORTANT POINT
Income tax returns are distinct from average annual financial turnover; MSE exemption does not apply to income tax return requirements in tender documents.

JUDGMENT :

MICHAEL ZOTHANKHUMA, J.

1. Heard Mr. B. Sharma, learned counsel for the petitioner. Also heard Mr. R. Dhar, learned counsel for the State respondents No.1-3. Mr. D.K. Nath, learned counsel appears for the private respondents No.4-13.

2. The grievance of the petitioners is that the petitioners’ tender bid has been disqualified by the Technical Evaluation Committee, vide meeting minutes dated 22.02.2024, on the ground that the petitioners had submitted documents, which were not in conformity with Clause 13(h) of the NIT.

3. The petitioners’ case is that they had participated in e-Tender Notice dated 11.01.2024 (hereinafter referred to as the ‘NIT’), for empanelment of manufacturers and suppliers for supply of handloom and handloom accessories under the various schemes of Government of India and Government of Assam, implemented by the Directorate of Handloom and Textiles, Assam.

4. The petitioners’ counsel submits that in terms of Clause 3(b) of the NIT, relating to the eligibility criteria of the bidders, bidders were to have not less than Rs. 50 Lakhs as the average annual financial turnover during the last three years, i.e., 2020-2021, 2021-2022 & 2022-2023 and they were also required to have the experience of supply of handloom and handloom accessories for an aggregated value of a minimum of Rs. 10 Lakh during the last three financial years in terms of Clause 3(c). He further submits that in terms of Clause 3(e) of the NIT, Micro and Small Enterprises (MSEs) are exempt from prior turnover and experience in all public procurements, subject to meeting the quality and technical specification.

5. The petitioners’ counsel submits that even though the petitioners were a small enterprise, registered as a Small and Micro Enterprise (MSE), who were not required to submit the average annual financial turnover and experience of supply of handloom and handloom accessories in terms of Clause 3(b) &(c) of the NIT, in view of Clause 3(e) of the NIT, the petitioners had submitted documents in terms of Clause 3(b) &(c) of the NIT. He accordingly submits that as the petitioners were not required to comply with Clause 3(b) &(c) of the NIT, in terms of Clause 3(e) of the NIT, the disqualification of the petitioners’ technical bid, on the ground that it’s documents were not in conformity with the Clause 13(h) of the NIT, does not arise. He further submits that similarly placed bidders as the private respondents, have been empanelled by the State respondents and as such, there is discrimination writ large, in disqualifying the technical bid of the petitioners.

6. The petitioners’ counsel submits that the petitioners’ technical bid had been rejected on the ground that the petitioners had not submitted the copy of the income tax returns for the years 2022-23. However, an income tax return to be submitted in terms of Clause 13(h), is proof of the Annual Financial Turnover required under Clause 3(b) of the NIT. As such, the petitioners were exempt from submitting the income tax returns for the year 2022-23 in terms of Clause 3(e) of the NIT.

7. The petitioners’ counsel submits that the petitioners had submitted the Income Tax Returns for the year 2020–2021 and 2021 – 2022. The petitioners did not submit the Income Tax Return for the year 2022 – 2023. As the Income Tax Return is a part of the Annual Financial Turnover document under Clause 3(b), which also includes the audited certified balance sheets required under Clause 3(b) of the NIT, the non-submission of the Income Tax Return for the year 2022 – 2023 was not required in view of Clause (e), exempting the submission of the documents required under Clause 3(b).

8. Mr. R. Dhar, learned counsel for the State respondents No.1-3, on the other hand, submits that Clause 3(e) of the NIT is not applicable to the case in hand, inasmuch as, the petitioners’ technical bid had not been disqualified on the ground of not submitting the required Average Annual Financial Turnover and experience certificate. He s