ORDER Learned counsel for the petitioner points out that in paragraph-4 of the writ petition it is stated that the partnership firm was dissolved by a registered deed of dissolution, whereas it was dissolved by a simple deed of dissolution. The statement is made on the basis of instructions received from his client so as to place the correct fact on the record. 2. Heard learned counsel for the petitioner and learned counsels for the State Health Society and for the State. 3. The petitioner seeks quashing of the decision of the Technical Bid Scrutiny Committee dated 5.9.2013 of the State Health Society, Bihar as displayed on its Website by which the tender of the petitioner with respect to the works of Categories A and C under Notice Inviting Tender dated 28.5.2013 has been rejected holding the petitioner to be disqualified in its technical bid on the ground that income tax returns submitted by the petitioner for the three requisite financial years were not in the same name and for consequential reliefs. 4. The petitioner-firm, M/s. New Ratan Priya, was originally a partnership firm dissolved on 30.11.2009 by a simple deed of dissolution, and one of the partners Sudhir Prakash who was till that time holding 65% share in the entire partnership firm thereafter became the sole proprietor of the firm and the other partner Ravi Prakash, who in fact was a brother, retired from the partnership. It was directed in the deed of dissolution of partnership dated 30.11.2009 that the continuing partner of the firm shall have the right of exclusive use of the goodwill and right to carry on the business with full and irrevocable authority to collect all the outstanding debts and give valid and effective receipts and to discharge and settle any account, compromise any dispute or differences. It was further provided that the retiring partner will have no right, title or interest in use of the goodwill, outstanding assets of the partnership, printing off set machine dominate 724 (Double colour), other articles, outstanding dues debts with the customers and market. The Bank account was also to be operated by the remaining partner and all contracts and orders and its effects thereto were to be carried out by the continuing partner as the proprietor of the firm. The Bank account was also to be operated by the remaining partner and all contracts and orders and its effects thereto were to be carried out by the continuing partner as the proprietor of the firm. It was further provided that although the firm was dissolved on 30.11.2009 but the final accounting will be done on 31.3.2010 and the retiring partners will be entitled and liable for all the assets of partnership and its liability as on 31.3.2010. The petitioner-firm through its proprietor, Sudhir Prakash, continued to carry on business of the firm as before. 5. Pursuant to an NIT dated 28.5.2013 along with corrigendum dated 31.5.2013 the petitioner-firm applied and filed all the documents including the income tax returns for three years as was required in the tender condition. The petitioner also filed audit report and work experience. The income tax returns for the assessment years 2010-11 and 2012-13 pertaining to the financial years 2009-10 and 2011-12 were in the name of the firm, whereas the income tax return for the assessment year 2011-12 pertaining to the financial year 2010-11 was in the name of the proprietor Sudhir Prakash. It appears that there is evidently an error in the NIT, since with regard to the audit certificate it refers to the financial year 2009-10, 2010-11 and 2011-12, whereas with respect to the income tax returns also the same assessment years are mentioned although in such matters the assessment years would be one year later, i.e., 2010-11, 2011-12 and 2012-13, as has been understood by the respondents also while examining the technical bid. It is here pointed out by learned counsel for the petitioner that subsequently after rejection of the income tax returns filed in the name of the partnership firm for the assessment year 2012-13 a fresh return was filed for the said assessment year in the name of the proprietor Sudhir Prakash with the same gross total income, etc. subject to the variation of the applicable rules of deduction, etc. under the Income Tax Act with regard to a partnership firm and an individual. The technical bid was opened on 24.6.2013 but the parties were informed that the scrutiny would be done later on. subject to the variation of the applicable rules of deduction, etc. under the Income Tax Act with regard to a partnership firm and an individual. The technical bid was opened on 24.6.2013 but the parties were informed that the scrutiny would be done later on. On 11.8.2013 the petitioner was alleged to have been informed orally by the State Programme Officer, State Health Society to explain as to why the three income tax returns submitted by the petitioner were not in the name of one person. The petitioner at first orally brought the fact to the notice of the Programme Officer and followed it up by giving explanation in writing, as requested, on 12.8.2013 emphasizing the fact that the deed of dissolution of partnership dated 30.11.2009 had been submitted with the tender documents as also the TDS certificate of the financial year in the name of the firm were brought on the record, one of them having been issued by the State Health Society for printing work done by the petitioner. Certain documents including receipt of ITR-V Form of the financial year 2009-10 were also demanded by the State Health Society by its letter dated 20.8.2013 which had been submitted by the petitioner by letter dated 29.8.2013 within time stating that he had also submitted these documents earlier with the tender documents. The tender of the petitioner, however, was finally rejected which was uploaded on the Website of the State Health Society from which the petitioner learnt that the reason for rejection was “Since as per ITR tax payer is not same for all three requisite years hence not qualified”. 6. Learned counsel for the petitioner submits that a firm whether partnership or proprietorship has no independent existence in the eye of law other than that of its partner or proprietor unlike a company incorporated under the Companies Act. It is submitted that both in the case of a partnership or proprietorship firm the firm acts only through its partners or proprietor and income or loss of the firm is the income or loss of its partners or proprietor. It is submitted that both in the case of a partnership or proprietorship firm the firm acts only through its partners or proprietor and income or loss of the firm is the income or loss of its partners or proprietor. It is further submitted that the experience of the firm is in fact experience of the partners or proprietor and thus there could be no ground for rejecting the technical bid of the petitioner merely because the partnership firm consisted of two partners and only one partner has become the proprietor of the partnership firm on the retirement of the other partner. 7. Learned counsel in this regard refers to the conditions laid down in Clauses 6 & 7 of the NIT with respect to which it is provided that income tax returns for the assessment years 2009-10, 2010-11 and 2011-12 in the name of the agency/proprietor were to be submitted as also the complete audit report for the financial years 2009-10, 2010-11 and 2011-12 was also required to be submitted. It is further pointed out that under Clause 10 the agency was required to have three years experience of printing and supply in the field with respect to any Government/semi-Government Department or Public Sector Organization. 8. Learned counsel also points out that there was no requirement of any qualification of gross income and therefore the condition regarding filing of income tax returns was a non-essential condition and could not be treated as mandatory requirement so as to disqualify the petitioner. In support of the aforesaid stand learned counsel relies upon a decision of the Supreme Court in the case of Rashmi Metaliks Limited and another vs. Kolkata Metropolitan Development Authority and others : (2013) 10 SCC 95 , in paragraphs 10.4, 17 and 18 of which it has been held as follows : “10.4. Kanhaiya Lal, relied upon by Shri Vishwanathan, talks in the same timbre in that it distinguishes between essential and collateral terms of a tender and in the latter case allows elbow room for exercise of discretion. Although it may be seen as a facet of Wednesbury reasonableness, this decision can be seen as adding another factor to Tata Cellular viz. the Court is empowered to separate the wheat from the chaff. Although it may be seen as a facet of Wednesbury reasonableness, this decision can be seen as adding another factor to Tata Cellular viz. the Court is empowered to separate the wheat from the chaff. In this exercise the Court can segregate the essential terms forming the bulwark of the compact, and whilst ensuring their strict adherence, can allow leniency towards the compliance with collateral clauses. 17. So far as Clause (j) of the detailed notice inviting E-tender No. 01/KMDA/MAT/CE/2013-2014 dated 10.5.2013 emanating from the office of the Chief Engineer is concerned, it seems to us that contrary to the conclusion in the impugned judgment, the clause is not an essential element or ingredient or concomitant of the subject NIT. In the course of hearing, the income tax return has been filed by the appellant Company and scrutinized by us. For Assessment Year 2011-12, the gross income of the appellant Company was Rs.15,34,05,627, although, for the succeeding Assessment Year 2012-13, the income tax was nil, but substantial tax had been deposited. 18. We think that the income tax return would have assumed the character of an essential term if one of the qualifications was either the gross income or the net income on which tax was attracted. In many cases this is a salutary stipulation, since it is indicative of the commercial standing and reliability of the tendering entity. This feature being absent, we think that the filing of the latest income tax return was a collateral term, and accordingly the Tendering Authority ought to have brought this discrepancy to the notice of the appellant Company and if even thereafter no rectification had been carried out, the position may have been appreciably different. It has been asserted on behalf of the appellant Company, and not denied by the learned counsel for the respondent Authority, that the financial bid of the appellant Company is substantially lower than that of the others, and, therefore, pecuniarily preferable.” 10. Learned counsel also relies upon a decision of the Apex Court in the case of Kanhaiya Lal Agrawal vs. Union of India and others : (2002) 6 SCC 315 , in paragraph-6 of which it has been held as follows : “6. It is settled law that when an essential condition of tender is not complied with, it is open to the person inviting tender to reject the same. It is settled law that when an essential condition of tender is not complied with, it is open to the person inviting tender to reject the same. Whether a condition is essential or collateral could be ascertained by reference to the consequence of non-compliance thereof. If non-fulfilment of the requirement results in rejection of the tender, then it would be an essential part of the tender otherwise it is only a collateral term. This legal position has been well explained in G.J. Fernandez v. State of Karnataka.” 11. It is further urged on the basis of the aforesaid decisions that since no consequence of non-filing of the income tax returns is to be found in the NIT that again goes to show that the condition of filing income tax returns was a directory condition and not mandatory. 12. Learned counsel also submits that the respondents have accepted the audit report and work experience for which similar condition is to be found in the NIT and thus there was no occasion for disqualification for the aforesaid criteria. 13. It is also the stand that the explanation of the petitioner dated 12.8.2013 was found plausible and the same was accepted and no issue was raised by the respondents and the subsequent finding that the petitioner was not qualified in the technical bid is not correct. 14. Learned counsel for the State Health Society, on the other hand, submits that since there was a requirement of filing of income tax returns for the three assessment years and income tax returns having been found for the first year in relation to the partnership firm and with respect to the second year in the individual name of Sudhir Prakash and again for the third year with respect to the firm, hence the respondents had no option but to reject the same as it was not proper for the respondents to have granted any relaxation to the petitioner. 15. It is contended that once the term provided in the NIT is not fulfilled then relaxation is not permissible and the respondents have only acted reasonably on that count. 16. 15. It is contended that once the term provided in the NIT is not fulfilled then relaxation is not permissible and the respondents have only acted reasonably on that count. 16. Learned counsel has also sought to show that the decision of the Apex Court in the case of Rashmi Metaliks case (supra) does not apply to the facts of the present case as the requirement in the said case was different, whereas in the present matter the term itself is specific. It is submitted that in that case the income tax returns were produced before the Supreme Court, whereas in the present matter the petitioner is not even in a position to produce the income tax returns in the name of the firm or of the individual for three years in a row. Hence it is a case of non-fulfilment of a requirement under the NIT. 17. In support of his aforesaid stand learned counsel relies upon certain observations which have been noted in paragraph-4 of the Rashmi Metaliks case (supra) from the earlier decision of the Apex Court in W.B.SEB v. Patel Engg. Co. Ltd., which are as follows : “xxxxxxxxxxxx The very purpose of issuing rules/instructions is to ensure their enforcement lest the rule of law should be a casualty. Relaxation or waiver of a rule or condition, unless so provided under the ITB, by the State or its agencies (the appellant) in favour of one bidder would create justifiable doubts in the minds of other bidders, would impair the rule of transparency and fairness and provide room for manipulation to suit the whims of the State agencies in picking and choosing a bidder for awarding contracts as in the case of distributing bounty or charity. In our view such approach should always be avoided. Where power to relax or waive a rule or a condition exists under the rules, it has to be done strictly in compliance with the rules. We have, therefore, no hesitation in concluding that adherence to the ITB or rules is the best principle to be followed, which is also in the best public interest.”” 18. In support of his stand learned counsel relies upon a decision of a learned Single Judge of this Court in the case of M/s. Maan Pharmaceuticals Ltd. vs. The State of Bihar & Ors. In support of his stand learned counsel relies upon a decision of a learned Single Judge of this Court in the case of M/s. Maan Pharmaceuticals Ltd. vs. The State of Bihar & Ors. : 2012(1) PLJR 501 relying upon paragraph-18 of the said decision which is in the following terms : “Furthermore, so far the question of blacklisting is concerned, the same is based on the contractual relationship between the parties and is not governed by any statutory rules and in such cases only the terms of the contract as well as the rules of natural justice has to be considered as has been held by the Apex Court in case of Grosons Pharmaceuticals (P) Ltd. (supra). The contractual terms with respect to blacklisting is quite apparent from the notice inviting tender (Annexures-A to A/2) of the Society. In clauses (q) and (t) of tender condition of financial bid specifically it had been provided that company found to be supplying sub-standard drugs/items shall be blacklisted and barred from applying for any tender from the State Health Society, Bihar and no further supply order will be given to them and non-fulfilment of any condition of the contract may lead to its disqualification for a period of five years for participating in any tender of the Society. This had also been put on the Website of the Society in general notice. Hence, the terms of contract specifically provided for such action for which proper notice was also given. Hence, principle of natural justice cannot be legally assumed to be in favour of the petitioner especially when in the instant matter the question is with regard to supply of substandard drugs to the Government Hospitals for use of seriously ailing poor people.” 19. Learned counsel also relies upon a decision of the Supreme Court in the case of Essar Power Limited vs. The State of Bihar & Ors. : 2013(3) PLJR 242 , in the relevant paragraph-10 of which it has been held as follows : “xxxxxxxx It is for the parties intending to accept the terms of tender and in case the terms are onerous or ambiguous, the party may not have submitted it’s tender. : 2013(3) PLJR 242 , in the relevant paragraph-10 of which it has been held as follows : “xxxxxxxx It is for the parties intending to accept the terms of tender and in case the terms are onerous or ambiguous, the party may not have submitted it’s tender. Before submitting the tender if any clarification is sought and no appropriate clarification is being given by the authority issuing the tender notice to the satisfaction of the petitioner, it was open for the petitioner to withdraw its proposal before the issuance of LOI which was issued after considering the technical and financial bid. As such, in my opinion, since the terms of R.F.P. clearly provides that in case of failure to execute the distribution franchise agreement and commence the operational work, the Earnest Money shall be forfeited is one of the terms of tender notice. Forfeiting of the Earnest Money was consequential action, as such, petitioner cannot validly assail the action of the Board for having taken such action explained in the meeting of 17.8.2011. It is not in dispute that the respondent-Board has issued a fresh tender notice after some modification whereby the approximate input of electrical energy to be provided by the Board has been given, however, the same cannot be a ground to assail the terms and conditions of another tender notice (Annexure-1) read with R.F.P. (Annexure-2).” 20. Learned counsel also relies upon a decision of the Supreme Court in the case of Popcorn Entertainment and another vs. City Industrial Development Corpn. and Another : (2007) 9 SCC 593 with regard to the ingredients regarding the maintainability of a writ petition in a matter of contract. He has also cited a decision of a learned Single Judge of this Court in the case of M/s. Satyendra Kumar Construction Pvt. Ltd. vs. The State of Bihar & Ors. : 2008(3) PLJR 648 , paragraph-10 of which is quoted below : “There is no quarrel with the said proposition but the question remains, can the respondent now having participated under the said clause turn around and contend that the said clause cannot be invoked against him. The answer to this is that once the respondent no. : 2008(3) PLJR 648 , paragraph-10 of which is quoted below : “There is no quarrel with the said proposition but the question remains, can the respondent now having participated under the said clause turn around and contend that the said clause cannot be invoked against him. The answer to this is that once the respondent no. 10 chose to file his tender pursuant to the aforesaid notice inviting tender without reserving his right to challenge the said clause or challenging that clause subsequently he is bound by the said clause and cannot now be permitted to challenge the same. He has elected to participate with his eye open. Having participated he cannot turn around and challenge the validity when it is used against him. He is estopped from doing so. The said plea thus is not available to respondent no. 10. Coming to the question of validity of clause 21 for the reasons given above, I find that respondent no.10 cannot at this stage challenge the validity of the aforesaid clause. I should not be misunderstood in saying that if a clause is violative of constitutional provisions a party can still be estopped from challenging the same. In the present case, he had participated in the tender being fully aware of clause 21 even closed. He took a chance. He succeeded at the first stage but now he fails. It is too late to permit him to challenge the validity of the said provision.” 21. I have considered the submissions of learned counsels for the parties. The only ground upon which the tender of the petitioner has been rejected is that as per ITR tax payer is not the same for all three requisite years. In my view, once a ground of rejection is clearly mentioned in the order it is not open to the respondents to support their case on the basis of any other ground except the ground on which the rejection has been made as laid down in a long line of decisions of the Apex Court starting from the case of Commissioner of Police vs. Gordhandas Bhanji : AIR 1952 SC 16 as also the case of Mohinder Singh Gill vs. Chief Election Commissioner : (1978) 1 SCC 405 . 22. 22. Thus, the question has to be confined with respect to the criteria regarding submission of income tax returns, wherein it is provided that a desirous agency should file income tax returns for the assessment years 2009-10, 2010-11 and 2011-12 in the name of the agency/proprietor. It is not in dispute that the petitioner as per the requirement has filed three years income tax returns along with the bid documents but the only thing that has happened is that for the year 2009-10 when the partnership firm was still in existence the income tax returns pertain to the partnership firm whereas for the year 2010-11 it is in the name of the individual proprietor Sudhir Prakash and again in the year 2011-12 although in the name of the firm but showing Sudhir Prakash as the proprietor. It is a different aspect of the matter that no such return could be filed under the income tax law in the name of the firm and therefore ultimately the petitioner had to file return in the name of the individual proprietor but exactly with respect to the same income. It has further to be considered that there is no requirement of any net or gross income in any of the terms of the notice inviting tender. For the said reasons it is evident that the requirement for filing of income tax returns is not an essential condition and therefore as laid down in Rashmi Metaliks case (supra) it is only a salutary stipulation for finding out the commercial standing and reliability of the tendering entity. The term accordingly, as held in the aforesaid case by the Apex Court, is a collateral term. In the said circumstances, the disqualification of the petitioner on the said ground cannot be considered as justified since the entire assets and liabilities of the firm continued to be in the name of the sole proprietor of the firm, Sudhir Prakash, even after the firm was dissolved in the year 2009. Thus considering the legal technicalities although there may be some changes which have occurred but the fact remains that the same person continued to do the work with respect to the firm in question earlier as a partner holding 65% share in the partnership firm and thereafter as the sole proprietor. The same therefore does not substantially affect the commercial standing and reliability of the tendering entity. The same therefore does not substantially affect the commercial standing and reliability of the tendering entity. As a matter of fact, it is evident from the last income tax return for the assessment year 2012-13 pertaining to the financial year 2011-12 that the petitioner has done work not only for others but also the State Health Society and these facts are not at all in dispute. As a matter of fact, neither the audit report nor the experience certificate of the petitioner is under challenge. Thus, in my view, apart from legal technicalities it is practically the same entity which has continued and in any view of the matter if the filing of the returns is treated as non-essential condition then the petitioner has substantially complied with the same by producing the returns for the three years along with the explanation showing that the return for the first assessment year was in the name of the firm as a partnership firm and of the next two years in the name of proprietor of the said firm. 23. For the aforesaid reasons, it is not possible to accept the contention on behalf of the respondent Society that the term as provided in Clause 6 of the NIT has not been fulfilled when it has clearly been substantially fulfilled. 24. For the same reason it cannot be considered a case of relaxation of the conditions and the submission of learned counsel for the respondent Society in that regard has also to be rejected on that count. 25. The decisions relied upon by learned counsel for the State Health Society are also not relevant since I do not consider it to be a case of relaxation. Since the condition itself is fulfilled by the petitioner there is no case for turning around and challenging the same as in the case of M/s. Satyendra Kumar (supra). So far as the reliance upon Popcorn Entertainment case (supra) is concerned the issue therein was with regard to maintainability of a writ petition and not with regard to the ground on which a writ petition can be allowed and therefore that decision is not applicable to the present case. 26. So far as the reliance upon Popcorn Entertainment case (supra) is concerned the issue therein was with regard to maintainability of a writ petition and not with regard to the ground on which a writ petition can be allowed and therefore that decision is not applicable to the present case. 26. Thus on a consideration of the entire facts and circumstances, I am of the view that the disqualification of the petitioner on the ground of income tax returns is not in accord with the condition laid down in the NIT. The same is, accordingly, quashed. Pursuant to the direction of this Court the financial bid of the petitioner had earlier been opened and the petitioner was found to be the lowest tenderer with respect to a large number of items under the categories A and C. Let the respondents act accordingly. 27. The writ application is allowed with the above observations and directions.