Parties are heard on question of admission.

Though each of the petitioners is claiming the same relief but for the sake of convenience we take the facts from Writ Petition No. 13410 of 2009 (O).

The petitioner, a Government contractor, entered into some agreements/contracts with respondent No. 1 for construction of residential complex. Undisputedly, there were no terms in the agreement/contract that the service tax would be paid either by the petitioner or by respondent No. 1. It appears that after the execution of the contract was over, respondent No. 2 issued notices to the petitioner to deposit the service tax. The petitioner, being aggrieved by the said demand, placing reliance upon the resolution/subject No. 12 taken up by the board of directors of respondent No. 1 on October 23, 2009, has come to this court with a submission that if respondent No. 1 has resolved that in the matters where there was no condition for payment of the service tax then in all such cases where the contract was already executed, the service tax would be paid by respondent No. 1 but in all cases for future the service tax shall be paid by the contractor.

Learned counsel for the petitioner submitted that respondent No. 1 being the State under article 12 of the Constitution of India is obliged to be honest and, therefore, they were also required to put subject No. 12 into execution and as they are not putting the said subject No. 12 into execution by writ of mandamus, respondent No. 1 be directed to implement the decision dated October 23, 2009 (annexure - P/3) and be asked to make the payment of service tax due upon the petitioner to the petitioner or respondent No. 2. The petitioner has also submitted that a declaration be granted by this court that the petitioner is not liable to pay service tax pertaining to the demand covered under the decision dated October 23, 2009 (annexure - P/3). They have also prayed that a direction to respondent No. 2 be issued to register the petitioner under section 69 of the Finance Act, 1994.

Respondent No. 2 even after notice has not filed any reply with a submission that they are entitled to recover the tax, irrespective of the fact that whoever pays it.

Shri Prashant Singh, learned counsel for respondent No. 1, however, submitted that under the Finance Act the liability to pay the service tax is always upon the service provider and as in this case the services are being provided by the petitioner, he is to be held liable. In relation to subject No. 12 and its implementation, it is submitted by him that even after passing the said resolution, respondent No. 1 cannot be held liable to pay tax. It is further submitted that a review of subject No. 12 is in offing because the said resolution runs contrary to the provisions of law. His submission is that the present is a matter relating to contract and the liability of the parties under the contract, therefore, this court should not interfere in the matter.

We have heard the parties at length and have gone through the annexure - P/3.

Undisputedly, under section 19 of the Finance Act, in matters of commercial contracts, service tax at the rate of 10.24 per cent. is leviable with effect from June 10, 2004 and June 16, 2005, respectively, on commercial constructions and residential complex constructions. Undisputedly, the construction work was completed between 2005 and 2008, and therefore, section 19 of the Finance Act shall apply with full force.

In so far as liability to pay the tax is concerned, it is upon the service provider. It cannot be said that the petitioner is not liable to pay the tax as a service provider.

The learned counsel for the petitioner has placed his strong reliance upon the judgment of the apex court in the matter of ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. reported in [2004] 118 Comp Cas 213; [2004] 3 SCC 553. It was contended that once the State or an instrumentality of the State is a party to the contr