ORAL JUDGMENT

(Per : Anil S. Kilor, J)

1.Heard.

2.RULE. Rule made returnable forthwith. Heard finally by consent of the learned counsel for the parties.

3. In the present petition, the challenge is made to the communication dated 20/12/2022 issued by the respondent- Nagpur Metropolitan Region Development Authority denying the claim made by the petitioner of Goods and Service Tax (GST) reimbursement against Tender No. 1 dated 30/07/2014.

The brief facts of the present case are as under:

4. The petitioner is a Proprietorship Firm engaged in Construction. The petitioner participated in the tender floated by respondent(s) on 02/06/2014 for construction of “Affordable housing on land bearing Khasra No. 54, Mouza Wathoda, City Survey No. 173, Shesh Nagar, Middle Ring Road, Nagpur.”

5. The petitioner being successful bidder, the work order was issued in favour of the petitioner on 25/08/2014. The work was completed and the work completion certificate was issued in the name of the petitioner.

6. On 08/06/2022, the petitioner submitted a letter for GST reimbursement claim against an Agreement No. B1/186/(2014-2015) for RA Bill Nos.14 to 29. This is in view of the fact that, on the date of tender, GST was not in existence, which came into force w.e.f. 01/07/2017 and according to the petitioner, the petitioner is not liable to pay GST in view of terms of the tender and accordingly, he claims reimbursement of GST. Furthermore, the case of the petitioner is that he is not liable to pay GST based on Government Resolution (GR) and Government Circular. The Government Circular is dated 19/09/2017 and the Government Resolution (GR) is dated 21/01/2021.

7. In addition, the basis to claim GST reimbursement was the reimbursement made in favour of the contractors like the petitioner.

8. The claim of the petitioner for GST reimbursement was verified by the respondents through the Chartered Accountant (CA) namely Rodi Dabir and Company, vide certificate dated 28/06/2022.

9. After six months of such verification, the impugned communication came to be issued denying the claim of the petitioner. Hence, this petition.

10. We have heard Shri Bhangade, the learned senior counsel assisted by Shri M.M.Agnihotri, the learned counsel for the petitioner. It is submitted that the Clauses of the tender namely Clauses 25 and 48 on which the reliance is placed for denial of claim of the petitioner, were part of the tender floated in the year 2014, whereas the GSTs came into effect from 01/07/2017. It is submitted that the taxes which were not there at the time of execution of Agreement or issuance of the tender, the petitioner is not liable to pay such taxes unless there is a specific condition in the tender document. It is argued that, the Government vide Government Circular dated 19/09/2017 and GR dated 21/01/2021, it has been clarified. It is argued that relying upon aforementioned Circular and GR, the reimbursement of GST was made in favour of many contractors like the petitioner.

11. It is submitted that the respondents are harping upon the pre-bid meeting, wherein while recording the clarification to the query relating to all new taxes, it was observed that the Clause in Bid Document will prevail. It further states that all new taxes/charges in tax structure including sales tax, service tax etc. after award of contract shall be fully borne by the contractor and no reimbursement shall be paid by N.I.T. It is submitted that even if this clarification is considered as a part and parcel of the tender document, it goes contrary to the tender conditions. It is submitted that clarification cannot go beyond the main orders. For this purpose, the learned senior counsel for the petitioner has placed reliance on the judgment in the case of B. Rugmini Amma and anr. V/s. B.S.Nirmala Kumari and ors. reported in (2013) 11 SCC 262.

12. On the other hand, Shri Kunte, the learned counsel for the respondents argued that the claim of the petitioner was rightly denied by the resp