Page 75 - GSTL_23rd July 2020_Vol 38_Part 4

2020 ] METRRO WASTE HANDLING PVT. LTD. v. SOUTH DELHI MUNICIPAL CORPN. 441
(i) It is pleaded that the issue involved is short and simple. The only is-
sue is as to whether the respondent is entitled to deduct the
amounts for alleged service tax, which is not payable by the peti-
tioner in terms of the Agreement between the parties. Hence, this
writ petition is maintainable.
(ii) It is further pleaded that the consideration that was payable by the
respondent was Rs. 1934/- is per day per vehicle for eight hours
and there is nothing to show that any component of this amount in-
cluded service tax. Hence, to claim that the petitioner has not paid
service tax and hence not entitled to component of service tax, is a
false contention.
(iii) It is further pleaded that when the parties entered into the contract
on 27-8-2012, Section 66 of the Finance Act, 1994 clearly stipulated
all the taxable services. Collection of waste was not one of the ser-
vices that is stated as taxable service. Hence, when the agreement
was entered into between the parties, it was known that there was
no service tax payable for the services in question. Hence, the con-
sideration that was agreed upon as payable to the petitioner, did not
include any component of service tax as is being mischievously
pleaded.
(iv) It is further pleaded that on 17-3-2012 a specific notification was is-
sued bearing No. 12/2012, which specifically under clause 25 ex-
empted waste collection or disposal services provided to the Gov-
ernment or local parties. Hence, it is pleaded that the agreed con-
sideration of Rs. 1934/- per day per vehicle was that was agreed
knowing very well that the service tax was not applicable.
(v) It is further pleaded that the auditors of the respondent have raised
objection and it is only on account of this objection, the respondent
have mindlessly and in complete ignorance of the contractual terms,
deducted such large amounts on the alleged ground that the service
tax has not been paid for the services provided by the petitioner and
hence, the respondent is entitled to refund of the same.
(vi) It is further pleaded that the parties understood the agree-
ment/contract rate is fixed and not variable dependent upon service
tax. It is also pleaded that immediately after the work order the peti-
tioner commenced raising invoices for the services provided which
had no reference of the service tax payable. The respondent have
paid full invoices w.e.f. June 2012. It is only some time in 2015, the
respondent have pursuant to the auditor’s objection started deduct-
ing the amounts from the agreed rate on the alleged ground of non-
application of service tax.
12. The Learned Counsel for the respondent, Ms. Mini Pushkarna con-
firms that it was pursuant to the auditor’s objection that the deductions have
been made. She submits that the auditors are statutory auditors appointed under
Sections 204 and 205 of the DMC Act, 1957. Hence, their reports would be ex-
tremely relevant. She has reiterated the submissions made in the counter affida-
vit.
13. I may first look at the relevant clause of the work order w.e.f.
2-6-2012 between the parties, which read as follows :
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