The Gauhati High Court in its recent case held that there is no exception to retailer from registration under the Assam Goods and Services Tax Act 2017, without any materials placed on record to support the exemption.
The observation comes in connection with the supplier of a bidder to a tender process for construction of Assam Type Sub-Centre Building under the State’s Animal Husbandry & Veterinary Department. A Notice Inviting Tender (NIT) was issued on 06.04.2023 by the AH & Vety. Department for construction of Assam Type Sub-Centre Building with Electrification, Water Supply and Sanitary Works etc. at various locations in the district of Nalbari. In the said tender document, there is a specific clause under the Qualification Criteria, being Clause 2.A.(g) which provides that a bidder who quotes the rate beyond 15% below the approved rate would have to submit justification with proper rate analysis and photographic evidence.
The petitioner , Balen Roy Medhi who is an unsuccessful bidder noticed that the successful bidder who is the respondent no.5 initially mentioned the wrong GSTIN of its supplier in the bid. The Petitioner contended that a forged document was taken into recourse by respondent no.5 to obtain the tender. Respondent no. 5 on the other hand submitted that quotation of the GSTIN number was inadvertent as the said shop did not have any GSTIN.
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State Counsel viewed that Clause 2.A.(d)(ii) of the tender necessitates GSTIN registration of the bidder. It was submitted that there is no allegation against respondent no. 5 regarding not having a GSTIN registration and therefore, the challenge is not maintainable.
Respondent’s counsel also stated that there is no requirement that the supplier is required to have a GSTIN number. It further cited M/S Naga Builders and Suppliers Vs. State of Nagaland & Ors., (2022) to argue that Courts would loath to interfere when a challenge is made by an unsuccessful bidder.
The High Court noted that under the Gazette Notification dated 03.06.2019, a person engaged in exclusive supply of goods whose aggregate turnover in a financial year does not exceed to Rs. 40 lakhs is exempted from registration under the Assam GST Act. Further viewed that nothing was placed on record to show that the supplier, Maa Enterprise, would fall within the exempted clause.
It was found that the respondent no. 5 has tried to explain the position by a further clarificatory letter from Maa Enterprise that the said Enterprise did not have any GSTIN number. Court found force in the contentions advanced on behalf of the petitioner that such explanation is not acceptable inasmuch as the said clarificatory letter does not bear any seal and is not even issued in the letter-head of Maa Enterprise.
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A single bench of Justice Sanjay Kumar Medhi observed that though certain entities are given exemption under the Act, there cannot be any presumption in that regard, “more so when the very purpose of the Act of 2017 is to bring all business under the purview of the Act.” While allowing the writ petition , the bench directed that Work Orders be done through eligible bidders.
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