Page 131 - GSTL_16 April 2020_Vol 35_Part 3

2020 ] IN RE : PADMAVATHI HOSPITALITY & FACILITIES MANAGEMENT SERVICE 345
Commissioner GST, Chennai North Commissionerate as a proper
and necessary party to clearly decide as regards the applicability of
GST.
 Para 13 states that even if TNMSC proceed on finalizing the tender
on the basis that no GST is applicable, the Assistant Commissioner
GST may proceed to levy GST
The applicant has prayed for interim injunction of the tender process and also
issue a writ of mandamus to direct TNMSC to reject the bid of KRYSTAL and
award the tender to the applicant in all Zones.
7.5 It is seen from the writ petition filed by the applicant that the appli-
cant has submitted before the Hon’ble High Court that KRYSTAL, a bidder to the
said tender has submitted their bid by stating GST as “Zero” and emerged as the
successful bidder in respect of Zone 1 to Zone 4 and that the applicant would
have been the successful bidder after including GST and that KRYSTAL had tak-
en a calculated risk in submitting their bid without GST. The applicant had also
made a representation to TNMSCL dated 11-7-2019 stating that price quoted by
KRYSTAL without GST is to be disqualified as GST is applicable to the services
involved in the tender. To this, TNMSCL vide letter dated 14-8-2019 had replied
that GST is not applicable as per Notification No. 12/2017, dated 28-6-2017 and
hence, KRYSTAL is the L1 for Zone 1 to 4 as they had the lowest bid with zero
GST. In the writ petition, the applicant has repeatedly stressed that KRYSTAL
has made the successful bid only because they quoted zero GST whereas in reali-
ty GST is chargeable for the services covered in the tender. With GST added, the
applicant would have been the lowest bidder for zone 1 to 4 and they would not
have been asked to lower their bid for zone 5 without including GST. The appli-
cant himself has stated in the writ petition and in the communication with
TNMSCL that the applicability of GST is essential to be decided before the tender
is finalized. The contention of the applicant in the writ petition that the proper
procedure was not followed and level playing field, as required under Tender
Transparency Act and Rules, was not provided is based on the fact that
KRYSTAL had quoted their bid without GST which was wrongly accepted by
TNSMCL. The contention of the applicant that they would have been the lowest
bidder if GST is held applicable which is reflected in their prayer before Hon’ble
High Court that a writ of mandamus may be given to direct TNMSCL to award
the contract to the applicant and not KRYSTAL. Hence, the stand of the applicant
that the issue of applicability of GST is not the issue in the writ petition is not
correct. The decision of the Hon’ble High Court on the writ will be applicable on
the GST authorities who are also the respondents in the writ. This Authority
functions within the limitations prescribed under Sections 97 and 98 of the GST
Act, 2017. Inasmuch as the State/Center Jurisdictional authorities are respond-
ents to the Petition before Hon’ble High Court and the subject matter revolves on
the leviability of GST, we find that the application cannot be admitted as per
proviso to Section 98(2) of the CGST/TNGST Act as the question raised is al-
ready pending in the Hon’ble Madras High Court.
8. In view of the above, we rule as under :
RULING
9. The application filed by M/s. Padmavathi Hospitality & Facilities
Management Service is rejected under proviso to Section 98(2).
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GST LAW TIMES  16th April 2020  251