Page 68 - GSTL_11th June 2020_Vol 37_Part 2

154 GST LAW TIMES [ Vol. 37
Constructions Ltd. has quoted the rate as ‘18%’. The bid quoted by Sunil Kumar
Agrawal in a different capacity as ‘Sunil Kumar Agrawal LLP’ (Limited Liability
Partnership) mentions the rate of GST as ‘18%’. This means, no other bidder had
given the rate correctly or separately in respect of Section-B and Section-C con-
struction of roads and it was by virtue of this confusion that the petitioner left the
column No. 18 (provided to mention the rate of GST) as blank. It was more so,
since satisfaction of the GST was to be the employer’s liability by virtue of clause
12.4 of the ITB, read with Section 9 of the GST Act; by virtue of which mention-
ing of the rate by the bidder was immaterial. Whatever be the rate, it was to be
satisfied by the awarder and as such, mentioning of a particular rate by the bid-
der would never tilt the balance in any manner insofar as his quote (stipulated to
be given excluding the GST) is concerned. Reliance is placed on a ruling ren-
dered by the Division Bench High Court of Kerala as reported in C.A. George v.
State of Kerala [AIR Online 2019 Ker 713, paragraphs 12, 13 and 14] holding that,
if the tax rate is not mentioned in the column and if the bid amount is quoted
accordingly, it cannot be presumed that the bid amount is inclusive of the
tax/GST.
16. After hearing both the sides, we find that there is considerable force
in the submissions made by the Learned Counsel for the petitioner with refer-
ence to the materials brought on record. Insofar as there is no dispute that the
GST rate originally notified as per Annexure P/3 came to be modified and segre-
gated into two, vide Annexure P/4, dated 22-8-2017 (stipulating a lesser rate of
12% for construction of roads for public purpose (Section-B) and a higher rate of
18% for construction of roads for internal/private purpose (Section-C), it was ob-
ligatory for the respondents to have provided separate columns in the Annexure
P/2 tender issued on 9-9-2019 when Annexure P/4 notification was governing
the field. That apart, by virtue of the clear stipulations under clause 12.4 of the
ITB, read with Section 9 of the GST Act, payment of GST was to be the liability of the
awarder and hence, mentioning or non-mentioning of the rate of GST was to be of no
consequence as it is a ‘constant figure’ with regard to which no alteration can be
thought about either by the bidder or by the awarder. Above all, if at all, there
was any mistake or the bid was defective for not quoting the proper amount with
reference to the duties/taxes payable, it was quite open for the respondents to
have ‘re-evaluated the bid’ in terms of clause 23.3, read with clause 23.2.3 of the
ITB to work out the actual quote and to identify the L-1 bidder. Obviously, it is
without any regard to these vital aspects, that the proceedings were sought to be
pursued hastily, by issuing Annexure P/8; virtually without considering the ob-
jection/ explanation raised by the Petitioner vide Annexure P/7 in response to
Annexure P/5. We are of the view that Annexure P/8 order/proceedings dated
9-1-2020 impugned in the writ petition is not liable to be sustained and hence, it
is set aside.
17. In view of the enabling clauses contained in Annexure P/2 NIT as
discussed above, it is still open for the respondents to re-evaluate the bid submit-
ted by all the participants including the petitioner and to work out the actual bid
amount, if the GST was also to be considered as part of the bid and thus, adding
it on, instead of deducting the GST from the bid quoted by the petitioner or such
other bidder. After conducting the re-evaluation as above, the bid proceedings
could be finalized, identifying the successful bidder and to have the work
awarded accordingly; subject to satisfaction of the other requirements in accord-
ance with law. Since there cannot be any dispute with regard to the ‘rate of tax’

GST LAW TIMES  11th June 2020  68