Petitioner, an advertisement tax contractor, lost the contract due to GST introduction. The petitioner sought a refund of the proportionate amount remitted. The court held the contract was frustrated and ordered a refund.
Ordered the Municipality to refund Rs. 3,58,049/-, the proportionate amount, within one month.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
MONDAY, THE 21ST DAY OF DECEMBER 2020 / 30TH AGRAHAYANA, 1942
WP(C).No.39618 OF 2018(B)
PETITIONER:
ASHIK A. SHUKOOR, AGED 30 YEARS ASHIK MANZIL, EDATHARA, KALANJOOR P.O, PATHANAMTHITTA 689 694
BY ADVS. SRI.G.BHAGAVAT SINGH SRI.ANWIN SHAJ
RESPONDENTS:
1 THE ADOOR MUNICIPALITY REPRESENTED BY THE SECRETARY, ADOOR P.O, PATHANAMTHITTA 691 523
3 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF FINANCE, SECRETARIAT, THIRUVANANTHAPURAM 695 001
R1 BY SRI.K.SHAJ,SC,ADOOR MUNICIPAL COUNCIL
S GOPINATHAN SR GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.39618 OF 2018(B)
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JUDGMENT
Dated this the 21st day of December 2020
The petitioner was a contractor for collecting
Advertisement Tax for the financial year 2017-2018 of Adoor Municipality, Pathanamthitta District. The petitioner could not collect the Advertisement Tax for the entire period on account of the introduction of GST w.e.f. 1.07.2017. Accordingly, the petitioner had lost the contract for collecting Advertisement Tax.
petitioner sought refund of the proportionate amount, i.e., Rs.3,58,049/-. In the counter affidavit, it is stated that the respondent is not empowered to return the auction amount collected by the respondent. However, the factual claim is not disputed.
WP(C).No.39618 OF 2018(B)
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owing to the intervening facts. The public authority cannot take advantage of such situation by declining the refund of the amount deposited by the petitioner towards collection of the Advertisement Tax. The petitioner had not committed any fault in performing his contract. The Municipality, therefore, cannot withhold the refund of the proportionate amount due to the petitioner.
This writ petition is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
PR
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WP(C).No.39618 OF 2018(B)
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 COPY OF THE NOTICE ISSUED BY THE MUNICIPALITY IN FAVOUR OF THE PETITIOENR DT. 3/4/2017.
EXHIBIT P2 COPY OF THE ORDER ISSUED BY THE MUNICIPALITY IN FAVOUR OF THE PETITIOENR DT. 5/4/2017
EXHIBIT P3 COPY OF THE RECEIPT NO. 0018770 DT. 12/4/2017 ISSUED BY THE MUNICIPALITY TO THE PETITIOENR
EXHIBIT P4 COPY OF THE RECEIPT NO. 0018777 DT. 12/4/2017 ISSUED BY THE MUNICIPALITY TO THE PETITIOENR
EXHIBIT P5 COPY OF THE RECEIPT NO. 0018776 DT. 12/4/2017 ISSUED BY THE MUNICIPALITY TO THE PETITIONER
EXHIBIT P6 COPY OF THE AGREEMENT EXECUTED BY THE PETITIONER IN FAVOUR OF THE MUNICIPALITY DT. 25/5/2017 WITH EFFECT FROM 1/4/2017
EXHIBIT P7 COPY OF THE RECEIPT NO. 0023026 DT. 11/9/2017 ISSUED BY THE MUNICIPALITY TO THE PETITIONER
EXHIBIT P8 COPY OF THE RECEIPT OF THE REPRESENTATION DT. 22/2/2018 ISSUED BY THE MUNICIPALITY TO THE PETITIONER
EXHIBIT P9 COPY OF THE REPLY NOTICE ISSUED BY THE MUNICIPALITY DT 26/7/2018.
2 issues framed by the court
Whether the municipality is liable to refund the proportionate amount deposited by the petitioner when the contract was frustrated by the introduction of GST.
Whether the municipality can withhold the refund amount on the ground that it is not empowered to return the auction amount.
Ashik A. Shukoor
Adoor Municipality
The Secretary, Adoor Municipality
State of Kerala
A.MUHAMMED MUSTAQUE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
