ORDER

1. The present writ petition has been filed with the following main prayers:-

i. Issue a writ order or direction in the nature of Certiorari quashing the impugned order dated 02.04.2019, passed by the opposite party No. 4/ Superintending Engineer, Anusandhan Evam Niyojan (Barh) Mandal, Sichai Bhawan, Annexee, Lucknow, contained in ANNEXURE No. 1 to this Writ Petition.

ii. Issue a writ order or direction in the nature of Certiorari setting aside sub para 2 of paragraph 2 of the Government Order dated 08.11.2017 whereby a formula, with rate of VAT has been introduced, that is, Rv-Rg and (Q) x (Rv-Rg) / Rv. A true copy of the Government order no. 1814/23- 10-2017-12(General)/2017 dated 08.11.2017 wherein impugned para 2 of paragraph 2 is included, is being filed as ANNEXURE No. 2 to this writ petition.

iii. Issue a writ order or direction in the nature of Mandamus commanding the opposite parties not to give effect to the operation and implementation of the impugned order dated 02.04.2019, passed by the opposite party No. 4/Superintending Engineer, Anusandhan Evam Niyojan (Barh) Mandal, Sichai Bhawan, Annexee, Lucknow, contained in ANNEXURE No. 1 to this Writ Petition.

iv. Issue a writ order or direction in the nature of Mandamus, commanding the opposite parties not to give effect to the operation and implementation of the impugned para 2(2) of the Government Policy dated 08.11.2017, contained in ANNEXURE No. 2 to this writ petition.

v. Issue a writ order or direction in the nature of Mandamus commanding the opposite parties to pay to the petitioner/service provider the Goods and Services Tax (GST) admittedly deposited by the petitioner amounting to Rs. 43,20,988/-.

vi. Issue a writ order or direction in the nature of Mandamus, commanding the opposite parties to adhere to the State Government policy except the impugned para 2(2) of the Government Policy dated 08.11.2017 in respect of payment of Goods and Services Tax (GST).

vii. Issue a writ order or direction in the nature of Mandamus, commanding the opposite parties to pay market rate interest on Rs. 43,20,988/- arbitrarily and illegally withheld by them since 17.4.2018 and 18.8.2018 till the actual payment.”

2. Learned counsel for the petitioner has submitted that the petitioner is a private company and is engaged with civil construction work. The opposite party no. 5 i.e. Superintending Engineer, Irrigation Construction Division, Varanasi on behalf of the State Government had floated tenders for construction of flood protection works at Ganga river near Village Chandrawati, Chobeypur, District Varanasi. The petitioner being the highest bidder was a service provider to the opposite parties and had executed the flood protection work at Ganga River, near Village Chandrawati, Chobeypur, District Varanasi. The agreement was executed by the petitioner was before the enactment of Goods and Services Tax Act, 2017 (hereinafter referred to as “the Act 2017”). Some work executed by the petitioner was before the enactment of the Act 2017 and remaining part of the work was executed and completed after the Act, 2017 has came into existence w.e.f. 01.07.2017.

3. Learned counsel for the petitioner has submitted that the respondents are the recipient of the service rendered by the petitioner-Company and they are liable to pay Goods and Services Tax (hereinafter referred to as “G.S.T.”) under the Goods and Services Tax Act, 2017 (hereinafter referred to as “the Act of 2017”) on Reverse Charge Basis as the liability to pay G.S.T. is on the recipient of service provided by the petitioner.

4. It has further submitted that after the enactment of Act 2017, the petitioner had raised 7th running bill dated 21.03.2018 and the final 8th bill dated 30.07.2018, the payment whereof was made by the department.

5. It has further submitted that the petitioner has also challenged the sub-Para 2 of Para 2 of the Government Order dated 08.11.2017 on the ground that the formula for calculation is in contravention of the provisions of the Act 2017. It has further submitted that the Irrigation Department has taken a decision in its meeting dated 01.08.2018 in pursuance of the Government Order dated 08.11.2017 for refund of G.S.T. .

6. It has further submitted that the petitioner had demanded the payment of G.S.T. from the Respondents No. 3 and 6 i.e. Rs. 43,20,988/- which the petitioner had deposited with the Commercial Tax Department as G.S.T. vide its letter dated 26.10.2018, 14.02.2019 and when the same was not paid, lastly, the representation was made on 23.02.2019 to the Commissioner of Commercial Tax. The representation of the petitioner for refund of admitted amount of G.S.T. Rs. 43,20,988/- was rejected vide impugned order dated 02.04.2019 by the respondent no. 4. It has further submitted that the said rejection of the admitted amount of G.S.T. by the respondent no. 4 without considering the provisions of the GST Laws, Government Order dated 08.11.2017.

7. On the other hand, learned State Counsel has submitted that the amount claimed by the petitioner as mentioned above is disputed as after the calculation the amount which has been determined for refund to the petitioner is Rs.26,12,649/- for payment towards G.S.T. on the basis of Government Order dated 08.11.2017 and the proceedings for allotment of Budget towards payment of Rs.26,12,649/- is already under progress and upon such allotment the payment will be made.

8. It has further argued by the learned Standing Counsel that it is not an admitted amount as argued by the learned counsel for the petitioner, the amount is disputed for which the petitioner has a remedy under Clause 34 of the agreement which provides for arbitration for any of the dispute arising out of the agreement entered into between the parties.

9. It has also submitted that for the disputed amount the writ petition is not maintainable.

10. On being asked specific query from the learned counsel for the petitioner that the sub- Para 2 of Para 2 of the Government Order dated 08.11.2017 is violative of which of the Section of the Act 2017, in reply, learned counsel for the petitioner has relied upon Section 142(10) of the Act 2017 for convenience the same is quoted herein below :-

“(10) Save as otherwise provided in this Chapter, the goods or services or both supplied on or after the appointed day in pursuance of a contract entered into prior to the appointed day shall be liable to tax under the provisions of this act.”

11. After hearing the learned counsel for the petitioner and going through the record of the case, the position which emerges out in the present case is that if there is any dispute regarding refund of amount as claimed by the petitioner, the petitioner could raise its grievance before the Arbitrator as per Clause 34 of the agreement.

12. As far as the challenge to sub paragraph 2 of paragraph 2 of the Government Order dated 08.11.2017 is concerned, the petitioner has pleaded neither in the writ petition nor in the prayer clause that the said paragraph under challenge is in contravention of which provision of the Act 2017. But during the course of argument, learned counsel for the petitioner has relied upon sub-Section (10) of Section 142 of the Act 2017 with an argument that sub paragraph 2 of paragraph 2 of the Government Order is in contravention of the above mentioned provision, whereas sub-Section (10) of Section 142 does not provide any mode of calculation or formula for determining the liability.

13. Nothing has been pleaded or argued by the counsel for the petitioner to show that formula introduced by the Government Order violates the Section 142(10) of the Act 2017 in any manner. As a matter of fact, it does not deal with calculation or formula for determining the liability is arbitrary and unreasonable.

14. In view of the discussion made hereinabove, the present writ petition is devoid of merits and it is dismissed as such.

15. However, if there is any dispute, the petitioner may approach under Clause 34 of the agreement for arbitration, relating to disputed amount, obviously except the amount which is admitted by the State in the counter affidavit i.e. Rs.26,12,649/-.