The Commissioner of Income Tax (TDS) vs. M/s. Jaypeem Granites (P) Ltd.,

WA 415/2013 BEFORE HON’BLE THE CHIEF JUSTICE MR. AJIT SINGH HON’BLE MR. JUSTICE SUMAN SHYAM (Ajit Singh, C.J.) These writ appeals are directed against the common order dated 27.11.2013 passed by the learned Single Judge of this High Court in WP(C) No.138 of 2013 and WP(C ) No.328 of 2013. The appeals were therefore heard together and they also involv e the same issue. 2. On 15.9.2013, Notice inviting tender (NIT) was issued for settlement of No.25/28/103/104 Dhipujijan/Garanga Garsag/Malia Group Fisheries. The NIT enumer ated terms and conditions for the settlement. These terms and conditions also me ntioned the documents, which were required to be submitted along with the tender . 3. As many as 10 tenders were submitted. The bid offered by Santosh Barman, on behalf of 5 No. Sonai Pt-III Co-operative Society, was the 1st highest where as bid offered by Kandulal Mandal, on behalf of Katahguri Matshajibi Samabai Sa mmittee Limited, was the 3rd highest. And the bid offered by Jagadish Barman, on behalf of No.11 Part V Kollong Nadi Anchalik Meen Samabai Samity Limited, was t he 9th highest. Since the 1st and 2nd highest bidders were not found to be elig ible, their tenders were rejected and settlement of fishery was made in favour o f 3rd highest bidder i.e. Katahguri Matshajibi Samabai Sammittee Limited. 4. The 2nd highest bidder felt satisfied with the decision of rejection of his tender. He therefore did not challenge the same. 5. The 1st highest bidder however felt aggrieved and filed WP(C) No.138 of 2013. His main ground was that despite submission of complete tender papers, the tender had wrongly been rejected. It is pertinent to note that he did not chall enge the eligibility of 3rd highest bidder, whose tender was accepted. The 9th highest bidder too filed WP(C) No.328 of 2013 and prayed that since all other t enderers were ineligible, settlement be directed to be made in his favour. The o bjection of 9th highest bidder against 3rd highest bidder was that he did not su bmit photocopy of the Pan Card of Income Tax Department as per terms and conditi ons of NIT. His another objection was that the 3rd highest bidder did not file a ny certificate about 100% actual fishermen being in the neighbourhood of the co ncerned fishery. The State Government, on the other hand, defended its decision regarding settlement of fishery in favour of 3rd highest bidder. The 3rd highest bidder also replied to the objections taken by 9th highest bidder against him. 6. The learned Single Judge, by the impugned order, has dismissed WP(C) No. 138 of 2013 of 1st highest bidder on the ground that he was not eligible for set tlement. Interestingly, the 1st highest bidder has graciously accepted the order passed by the learned single Judge and has not challenged the same. The learned Single Judge, however, agreed with one of the two objections of 9th highest bid der that the 3rd highest bidder did not submit photocopy of the Pan Card of Inco me Tax Department, which was the mandatory requirement and cancelled the settlem ent of fishery in his favour. The learned Single Judge also agreed with the deci sion of the State Government that even 9th highest bidder was not eligible for s ettlement of fishery and dismissed his petition. Since the learned Single Judge found that all the 3 stakeholders i.e. 1st highest bidder, 3rd highest bidder an d 9th highest bidder were not eligible, he directed the State Government to issu e fresh NIT for the settlement of fishery, in question. It is, in this backgroun d, the 3rd highest bidder has filed WA No.415 of 2013 and WA No.413 of 2013 and the 9th highest bidder has filed WA No.44 of 2015. 7. As already stated above, the 1st highest bidder has not challenged the o rder of the learned Single Judge dismissing his petition. The 2nd highest bidder

also never challenged the rejection of his tender. Therefore, now only 3rd and 9th highest bidders are in the field. 8. The only question, which calls for our consideration, is - whether in th e fact situation of the case, the 3rd highest bidder had substantially complied with the terms and conditions enumerated in the NIT. And if we decide the questi on in the affirmative, then, obviously, 9th highest bidder will have no chance f or the settlement of fishery in his favour. 9. Condition 4 of the NIT reads as under:- The willing tenderers shall submit the tender papers on 19.10.2012 on or before 2:00 p.m. during the office hours in the tender box. No tenders shall be accept ed after the fixed date. The relevant documents as mentioned in the Tender Form shall be filled in and those shall be enclosed with the tender papers and submit ted in the office. (ka) The fishing experience certificate. (kh) The Bakijai Certificate proceedings issued by the Deputy Commissioner. (ga) The proof of Schedule Caste/Maimal Community and Individual Certificate of fisherman and Fish Farmers. (gha) Bank Draft/Indian Postal Order/Bank Cheque of Rs.10.00. (na) The security/call deposit of Rs.15% of the lowest revenue fixed by the G overnment for the 1st year. (ch) The proof of Registration Certificate of the Co-operative Society. (chh) Photocopy of Pan Card of Income Tax Department (j) The photocopy of the authority letter on behalf of the Society to submit with the tender. (jha) The photocopy of the Annual Balance Sheet of Samity of profit and loss. 10. In the above quoted condition, list of documents to be submitted along w ith the tender is given. One of the documents in the list is photocopy of Pan Ca rd of Income Tax Department ( 4 chh). Admittedly, the 3rd highest bidder did not submit the photocopy of Pan Card of Income Tax Department. But he did submit th e Income Tax Clearance Certificate. The purpose of submitting photocopy of the P an Card of Income Tax Department is only to ensure that tenderer is an income ta x assessee. This purpose can also be served by filing the Income Tax Clearance C ertificate. There is no mention in the terms and conditions of the NIT that in t he event of failure to submit photocopy of the Pan Card of Income Tax Department , the tender shall be rejected. In the context of the condition in question, the object is that the fishery is settled to an income tax assessee. And that the 3 rd highest bidder has fulfilled by submitting the Income Tax Clearance Certifica te. The Assam Fishery Rules, 1953 (in short Rules ), which are statutory and re gulate the settlement of fishery in favour of fishermen, do not provide for a co ndition of submitting photocopy of Pan Card of Income Tax Department along with tender documents. The purpose of settlement of fishery to fishermen, in our cons idered view, does not get defeated in any manner due to non-submission of the ph otocopy of Pan Card of Income Tax Department by the 3rd highest bidder. The auth orities were thus justified in accepting the tender of 3rd highest bidder as h e had submitted the Income Tax Clearance Certificate instead of Pan Card of Inco me Tax Department. For these reasons, we are unable to agree with the learned Si ngle Judge that merely because the 3rd highest bidder did not submit the Pan Car d of Income Tax Department, his tender deserved to be cancelled. In fact, the 3r d highest bidder had substantially complied with the condition. Annexure-A/03 fi led in WP(C) No.138/2013 is the list of members of 3rd highest bidder’s society. This list was also submitted along with the tender. And the list is certified t hat all the members named therein do belong to Scheduled Caste and are actual fi shermen. Annexure-A/03 thus answers the 2nd objection of 9th highest bidder in f avour of 3rd highest bidder. We, therefore, set aside the impugned order passed by the learned Single Judge. 11. In the result, WA No.415/2013 and WA No.413/2013 of the 3rd highest bidd

er are allowed and WA No.44/2015 of the 9th highest bidder is dismissed.