Page 74 - GSTL_23rd July 2020_Vol 38_Part 4

440 GST LAW TIMES [ Vol. 38
was not applicable on the services provided by the petitioner to the respondent
either at the time of award of the contract or presently.
5. On 15-3-2012, the MCD invited quotations for hiring of Light Motor
Vehicle (hereinafter referred to as ‘LMV’) with auto tipping facility with driver of
Gross Vehicle Weight of 1550 Kg. for narrow lanes with one labourer etc. The
petitioner quoted a rate of Rs. 1,972/- per vehicle per day. Vehicles were to be
hired for the purpose of lifting/collecting of municipal solid waste/garbage/
malba/drain silt etc. for a maximum period of five years or as required by the
MCD. The rates could have been varied only in two eventualities, i.e. (i) in-
crease/decrease in fuel; and (ii) increase/decrease in minimum wages. The rates
were inclusive of all taxes and levies.
6. The respondent entered into an agreement on 27-8-2012 with the pe-
titioner in pursuance to the work order that was issued on 2-6-2012 w.e.f. June,
2012. The petitioner deployed 64 vehicles in West Zone and further 16 vehicles in
Rohini Zone.
7. The petitioner raised running bills on the respondent for the work
carried out under the said work order. The petitioner was duly paid as per the
contractual rate i.e. Rs. 1,934/- per day per vehicle.
8. However, on 15-5-2015, the respondent issued a letter to the petition-
er to submit the paid receipt/challan vide which the service tax on the amounts
released by the respondent for the period of 2012-13 and 2013-14 was deposited
by the petitioner with the competent authority. It was stated in the same letter by
the respondent that service tax is applicable on the services provided by the peti-
tioner to the respondent under the said work order at the rate of 12.36% (includ-
ing cess) and this element was considered and included in the justification of
rates @ 10.36% by the respondent while awarding the work order. The said
communication also states that an amount of Rs. 50,20,461/- for the year 2013-14
have been irregularly released to the petitioner.
9. The respondent has filed a counter affidavit. In the counter affidavit,
it is stated that contractual amount of Rs. 1934/- per day per vehicle is payable to
the petitioner including the component towards payment of service tax. The ele-
ment of service tax had been considered and included in the justification of rates.
As no service tax is applicable and payable by the petitioner, there was no justifi-
cation for payment of the said amount to the petitioner. Hence, it is claimed that
the municipal corporation has rightfully deducted an amount of Rs. 1,10,29,902/-
on account of service tax and total of Rs. 1,28,56,647/- inclusive of deduction on
account of service tax and labour cess.
Reliance is also place on a work order issued to the petitioner on 22-3-
2016 where the petitioner agreed to receive at the rate of Rs. 1,830/- per day per
vehicle. It is pleaded that this lesser amount does not include service tax, as none
was payable.
It is further pleaded that the present writ petition is not maintainable as
the petitioner ought to have filed a suit for recovery as the petitioner is claiming
certain amounts as due and payable to it by the municipal corporation. It is also
pleaded that disputed questions of facts arise and hence the present writ petition
is not maintainable.
10. I have heard the Learned Counsel for the parties.
11. The Learned Counsel for the petitioner, Ms. Manmeet Arora has
made the following submissions :
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