JUDGMENT : SHAJI P. CHALY, J. The appeal is filed by the writ petitioners in W.P.(C) No. 32855 of 2022 challenging the judgment of the learned single Judge dated 09.11.2022, whereby the writ petition was dismissed. 2. The first appellant consortium and the 3rd respondent consortium M/s. Anchor-SSIPL-MIPL were participants in a tender invited by the Kerala State Electricity Board Limited, respondent No.1, as per Exhibit P1 dated 03.05.2022. The writ petition was filed by the appellants being aggrieved by the pre-qualification and the consequent declaration of the third respondent Consortium as L1 bidder as per Exhibits P4 and P5 Notes dated 07.10.2022 and 10.10.2022 respectively. According to the appellants, the third respondent Consortium is not qualified for want of the qualifications prescribed under clauses 3.1.6, 26.1, 27.1, 27.2, 29.1 and 29.2 of Ext.P1; and it was overlooking the rigour of the said qualifications, respondents 1 and 2 had declared that the third respondent consortium had the requisite financial qualification. 3. It is further contended in the writ petition that when clauses 3.1.6 and 27.1 of the instructions to the bidders contained at Exhibit P1 that the last three years’ income to be taken into account, there cannot be any question, under any stretch of imagination, that the alleged infusion of assets which took place pursuant to Exhibit P8 dated 01.04.2022 by and between a proprietor and a partnership can be accounted for that purpose. 4. It is further contended that insofar as clause 26.2.1(c) is concerned, Exhibit P10 certificate dated 01.08.2009 issued by the bidder is not one issued to any of the consortium members of the third respondent and it is only to be assumed that it is not in compliance with the pre-requisite demanded by the said clause. 5. 4. It is further contended that insofar as clause 26.2.1(c) is concerned, Exhibit P10 certificate dated 01.08.2009 issued by the bidder is not one issued to any of the consortium members of the third respondent and it is only to be assumed that it is not in compliance with the pre-requisite demanded by the said clause. 5. Anyhow, the learned single Judge, after taking into consideration clauses 3.1.6, 27.1 and 27.2 of Exhibit P1 pre-qualification bid document and Exhibit P8 agreement dated 01.04.2022 executed by and between a proprietary concern and a partnership firm, held that the lead bidder is having 30% turnover for the previous 3 assessment years namely 2019-2020, 2020-2021 and 2021-2022; and therefore, the contentions advanced by the appellants were brushed aside and the writ petition was allowed, taking into account the proposition of law laid down by the Apex Court in the decisions in Silpi Constructions Contractors v Union of India and another [ (2020) 16 SCC 489 ], and Tata Cellular v Union of India [ (1994) 6 SCC 651 ]. It is, thus, challenging the legality and correctness of the judgment of the learned single Judge, the appeal is preferred. 6. Shorn of unnecessary details, the basic facts required for the disposal of the writ appeal are as follows: The Kerala State Electricity Board Limited through the Chief Engineer second respondent, invited tenders for the execution of Civil and Hydro Mechanical works of Upper Sengulam Hydro Electric Project as per Ext.P1 e-tender notice dated 03.05.2022 with the Probable Amount of Contract (PAC) at Rs.175,60,70,410/-. The first appellant namely PGCCPL & ARYACON CONSORTIUM, and respondents 3 and 4 were pre-qualified in the tender and Ext.P4 Note containing the details of the pre-qualified bidders was published on 07.10.2022. The financial bids were opened on 10.10.2022, and the third respondent was declared as the lowest bidder, as is evident from Ext.P6. 7. According to the appellants, they had serious doubts about the third respondent's qualification, and therefore, the materials submitted by the third respondent in support of its bid was downloaded from the website. It is submitted that on scrutiny of the documents, the apprehension with respect to the disqualification of the third respondent was found to be correct. 7. According to the appellants, they had serious doubts about the third respondent's qualification, and therefore, the materials submitted by the third respondent in support of its bid was downloaded from the website. It is submitted that on scrutiny of the documents, the apprehension with respect to the disqualification of the third respondent was found to be correct. It is also contended that the third respondent had failed to comply with the requirements of clauses of 26.2.1(c), 3.1.6, 27.1 and 27.2 of the instructions to the bidders forming part of Ext.P1 Notice Inviting Tender and accordingly, the writ petition was filed. 8. The third respondent has filed a detailed counter affidavit in the writ petition refuting the allegations and the claims and demands raised by the appellants. 9. According to the third respondent, the petitioners and respondents 3 and 4 were pre-qualified in the technical bid analysis and that the appellants as well as respondent Nos. 3 and 4 participated in the bid as consortium entities. Among other contentions, it is stated that the third respondent formed a consortium among (i) Anchor Structurals; (ii) Shri Saravana Industries Pvt. Ltd.; and (iii) Mary Matha Infra Structure Pvt. Ltd. preceded by an Asset and Business Operation Transfer Agreement between Dr. Sasi Eloor, the proprietor, and M/s. Anchor Structurals as per Exhibit P8 dated 01.04.2022. 10. It is also the case of the third respondent that Dr. Sasi Eloor is the Managing Partner of M/s. Anchor Structurals all along. Exhibit R3(a) is the consortium agreement executed by and between the parties as specified above. Dr. Sasi Eloor was given the power of attorney by all the consortium members to enable him to represent all of them in the bid being the Managing Partner of the lead bidder of the consortium—M/s. Anchor Structurals, evident from Exhibit R3(b) power of attorney dated 11.06.2022. 11. It is also submitted that Dr. Sasi Eloor, who was doing a major hydro electric project since 1993 as a proprietary concern and M/s. Anchor Structurals, a partnership firm to which Dr. Sasi Eloor is the Managing Partner, entered into Exhibit P8 Asset and Business Operation Transfer Agreement, by which they became a single entity for all purposes and later, Exhibit R3(c) partnership deed of M/s. Anchor Structurals dated 01.06.2017 is executed. Therefore, the sum and substance of the contention advanced by the third respondent is that Dr. Sasi Eloor is the Managing Partner, entered into Exhibit P8 Asset and Business Operation Transfer Agreement, by which they became a single entity for all purposes and later, Exhibit R3(c) partnership deed of M/s. Anchor Structurals dated 01.06.2017 is executed. Therefore, the sum and substance of the contention advanced by the third respondent is that Dr. Sasi Eloor and M/s. Anchor Structurals merged with each other consequent to Exhibit P8 agreement dated 01.04.2022 and have become a single entity for all purposes. 12. It is further stated that Exhibit P9 certificate issued by the Chartered Accountant of the third respondent conformed the contract receipts of M/s. Anchor Structuarals, which is the lead partner of the consortium, which is having a total turnover of more than 30% of the Probable Amount of Contract for the last 3 years i.e., for the financial years 2019-2020, 2020-2021 and 2021-2022. Therefore, it is contended that the plea taken in the writ petition based on the same and to controvert Exhibit P9 certificate, is baseless and untenable. 13. It is also pointed out that, Exhibit P10 certificate confirmed the capability and experience of the lead partner of the consortium in executing major projects and high rating of performance. That apart, it is submitted that M/s. Anchor Structurals has also satisfactorily completed execution of the civil works of Vellathooval Small Hydro Electric Project, evident from Exhibit R3(d) certificate issued by the Project Manager. 14. The third respondent has also produced Exhibits R3(e), R3(f), R3(g) and R3(h) certificates in order to demonstrate that Dr. Sasi Eloor has sufficient and adequate experience in the field. It is virtually admitted at paragraph 8 of the counter affidavit that in the technical bid evaluation, the competent authority after thoroughly verifying the technical requirements and qualifications of the bidders, shortlisted the appellants and respondents 3 and 4 as technically qualified in the subject bid. 15. It is the prime contention of the third respondent that when financial bids were opened, the third respondent became L1 having quoted 12% below the Probable Amount of Contract. The second appellant became L2 by quoting 11% below the Probable Amount of Contract and the 4th respondent became L3 by quoting 9% below the Probable Amount of Contract. 15. It is the prime contention of the third respondent that when financial bids were opened, the third respondent became L1 having quoted 12% below the Probable Amount of Contract. The second appellant became L2 by quoting 11% below the Probable Amount of Contract and the 4th respondent became L3 by quoting 9% below the Probable Amount of Contract. Therefore, it is the contention of the third respondent that consequent to the lowest bid submitted by the third respondent, there is a difference of Rs.1,67,69,426/-by and between the appellants and the third respondent. 16. Therefore, it is contended that the third respondent was financially qualified and being the lowest bidder, the tendering authority was right in accepting the bid submitted by the third respondent as L1. It was, accordingly, that the third respondent sought dismissal of the writ petition. 17. The Kerala State Electricity Board and the Chief Engineer (Civil Construction) South, respondent Nos. 1 and 2, have filed a common counter affidavit basically stating that the selection methodology adopted by the Board is in terms of the provisions of the Notice Inviting Tender and the third respondent meets technical and financial criteria set for pre-qualification in the bidding process. It is further contended therein that as per clause 26.2.1(c), the bidder shall have sufficient experience as individual/as a consortium member in the execution of the tunnel driving works and Dr. Sasi Eloor, the Managing Partner of M/s. Anchor Structurals, a consortium member, was found to have experience as an engineering contractor in execution of the tunnel driving in the works of construction of Vazhikkadavu Diversion scheme and Kuttiar Diversion Scheme, both of which are projects implemented and owned by KSEBL. 18. It is also contended that the Asset and Business Operations of Dr. Sasi Eloor were transferred as per Exhibit P8 agreement dated 01.04.2022 to M/s. Anchor Structurals and therefore, the tunnel driving experience acquired by Dr. Sasi Eloor as an Engineering Contractor is accounted towards the experience of M/s. Anchor Structurals in which Dr. Sasi Eloor is the Managing Partner. It is therefore, submitted that the contention of the appellants that neither the third respondent consortium nor any of its members individually has the qualification under clause 26.2.1(c) of Ext.P1, is without any basis. 19. Sasi Eloor as an Engineering Contractor is accounted towards the experience of M/s. Anchor Structurals in which Dr. Sasi Eloor is the Managing Partner. It is therefore, submitted that the contention of the appellants that neither the third respondent consortium nor any of its members individually has the qualification under clause 26.2.1(c) of Ext.P1, is without any basis. 19. It is further pointed out that in the consortium which applied for the contract, M/s. Anchor Structurals is the lead bidder and M/s. SSIPL and M/s. MIPL are consortium members; and therefore, it is submitted that the merged assets and operations of M/s. Anchor Structurals has been considered while evaluating the financial and technical capabilities of the lead bidder, M/s. Anchor Structurals. According to the Board, when the financial capability of Dr. Sasi Eloor and M/s. Anchor Structurals is taken into account, M/s. Anchor Structurals has a total turnover of Rs.70.46 crores. It is accordingly contended that the third respondent satisfies the requirements of clauses 27.1 and 3.1.6, which specifies that the lead bidder shall have a total turn over of not less than 30% of the Probable Amount of Contract. Therefore, the Board justified its action. 20. The third respondent has filed a detailed counter affidavit in the writ appeal also reiterating the stand adopted in the counter affidavit filed in the writ petition and also has produced various documents, including a certificate issued by the Chartered Accountant in favour of M/s. Anchor Structurals dated 17.06.2022 stating that its annual accounts for the financial year 2021-2022 are under audit; from where also it is clear that it is uploaded in the site. Apart from the same, Annexure R3(b) certificate issued by yet another Chartered Accountant to the second appellant namely Poulose George Construction Company Private Limited to contend that the appellants have failed to furnish the turnover in respect of the assessment year 2021-2022, which is a clear violation of clause 3.1.6. It is also stated that the said data could be procured by the third respondent after the disposal of the writ petition. 21. It is also stated that the said data could be procured by the third respondent after the disposal of the writ petition. 21. So also, Annexure R3(c) dated nil is the manual issued by the Board, and certain tender documents are also produced as Annexures R3(d) to R3(f) basically to show that in the case of a bidder formed after merger and acquisition of other companies, the past experience and other antecedents of the merged or acquired companies will be considered for qualification of such bidder, provided such bidder continues to own the requisite assets and resources of the merged/acquired companies needed for execution and successful implementation of the contract put to tender. 22. The appellants have also filed I.A. No. 1 of 2022 in the writ appeal seeking to accept Annexure A, the abstract issued by the KSEB Limited dated 21.11.2022 in respect of construction of a concrete gravity work entered with Dr. Sasi Eloor wherein certain action is taken against Dr. Sasi Eloor in respect of the said contract and Annexure B the pre-qualification bid questionnaire of M/s. Anchor Structurals, the lead bidder/third respondent. 23. The appellants have also filed a reply affidavit to the counter affidavit filed by the third respondent in the writ appeal reiterating the stand adopted in the writ petition and the appeal, wherein it is also contended that the third respondent has not produced unaudited financial return for the year 2021-2022 and therefore, it can be seen that the requirements contained under the Notice Inviting Tender for submission of the audited accounts for the previous 3 assessment years was not complied with. It is further submitted in the reply affidavit that the appellants are unconditionally willing to match the offer of the third respondent. 24. We have heard the learned Senior Counsel for the appellants Sri. Joseph Kodianthara assisted by Sri. Issac Thomas, learned Senior Counsel for the Kerala State Electricity Board and its officials Sri. Raju Joseph assisted by Sri. Joseph Antony and Sri. K. I. Mayankutty Mather for the third respondent, and perused the pleadings and material on record. 25. The learned counsel appearing on either side advanced arguments on the basis of the contentions deliberated above. Issac Thomas, learned Senior Counsel for the Kerala State Electricity Board and its officials Sri. Raju Joseph assisted by Sri. Joseph Antony and Sri. K. I. Mayankutty Mather for the third respondent, and perused the pleadings and material on record. 25. The learned counsel appearing on either side advanced arguments on the basis of the contentions deliberated above. The discussion of facts made above would make it clear that the issues raised by the rival parties are depending upon a few of the terms and conditions contained in Exhibit P1 Notice Inviting Tender (NIT). In our considered view, insofar as the technical capacity of the third respondent and the appellants are not under serious dispute and therefore, the contentions advanced by the rival parties relying upon the documents produced along with the respective pleadings in that regard need not be traversed through. 26. Clause 1 of Ext.P1 deals with ‘the scope of pre-qualification bid, which specifies that the Board, as per the terms and conditions set forth in the documents aims at selecting bidders having appropriate level of experience, financial soundness, technical capability and backed by competent managerial and technical personnel, equipment and machinery for undertaking the particular contract and other expertise necessary for carrying out the work in time, of requisite standard and quality and in a smooth manner, if awarded to him/them. It is further stated therein that all the bidders participating in the bid will be evaluated for their financial capability, technical soundness and previous experience in executing works of similar nature; and that for pre-qualification, the bidders have to submit the Pre-qualification (PQ) bid in the prescribed form. 27. It is further stipulated in clause 1 that the bidders shall submit the PQ bid duly filled in as stated in the PQ bid document, along with other bid documents before the due date of submission; that the bidder shall furnish relevant details as per the formats, documentary evidences, photograph, audited financial statements etc. for the last three years; that after examination and evaluation, the Board will select the qualified bidders; and that the result of pre-qualification will be informed to all the bidders. Therefore, the scope of pre-qualification bid is very well specified in the instructions to the bidders at Exhibit P1. 28. for the last three years; that after examination and evaluation, the Board will select the qualified bidders; and that the result of pre-qualification will be informed to all the bidders. Therefore, the scope of pre-qualification bid is very well specified in the instructions to the bidders at Exhibit P1. 28. Clause 3 of Exhibit P1 deals with ‘eligible applicants’ and clause 3.1.6 thereto specifies that the lead bidder in the consortium/joint venture shall have a total turnover of not less than 30% of the Probable Amount of Contract for the last three financial years. (emphasis supplied) 29. Clause 3.1.7 inter alia enumerates that the execution of contract agreement will be done exclusively with the lead bidder of consortium/joint venture/group and the payment will be made only to the lead bidder. 30. Clause 4 deals with the ‘contents of Pre-qualification bid’, and clause 4.1 specifies that the pre-qualification bid (Vol.I) consists of instructions to bidders, conditions of pre-qualification, eligibility criteria for pre-qualification, qualification criteria for financial capability, qualification criteria for technical capability, details of bidding process, method of submission of bid, formats and questionnaires etc. and should be read in conjunction with any addenda issued in accordance with clause 5 and other volumes of those bid documents. 31. Clause 4.3 specifies that the bidder is expected to examine and understand all instructions, forms, questionnaires, terms and conditions in the pre qualification document and to furnish all information and documents as required by the Board for pre-qualification. 32. On a conjoint reading of clauses 3.1.6, 4.1 and 4.3 of Exhibit P1, it is clear that the KSEB Limited was very clear and specific insofar as the pre-qualification of the bid; technical and financial, is concerned. Clause 13 of Exhibit P1 dealing with ‘supporting documents’, states that the bidders shall upload scanned copies of supporting documents to establish their qualification; the supporting documents, including the copies of audited profit and loss account and the balance sheet of the bidder for the last three years duly certified, solvency certificates from Bank defined vide item No.4 of Part I of Vol.II or from Revenue Authorities, audited annual accounts, statutory auditors certificate, certificates of completed works, experience certificate, proof of qualification for technical and managerial personnel, bank references, literature about the firm supply details etc. In case of Joint Venture/Consortium/Group, details of all the members shall be submitted, and supporting documents, such as photographs, literatures etc. In case of Joint Venture/Consortium/Group, details of all the members shall be submitted, and supporting documents, such as photographs, literatures etc. if any, can also be submitted along with the pre qualification bid. 33. Therefore, it is clear that insofar as the financial qualification is concerned, it is specifically stated that the participating bidder shall produce audited profit and loss account and balance sheet for the last three years duly certified. Clause 16 dealing with ‘check list for contents of cover No.2 for Pre-qualification’, reads as follows: “16. Check list for contents of Cover No.2 for Pre-qualification Cover Number -2 for Pre-qualification shall contain the following: In addition to Volumes-I, II, III, IV, the bidders shall ensure to furnish scanned copies of the following documents in Cover Number 2. 1. Joint Venture/Consortium/Group/Agreement. 2. Power of attorney in Kerala Government Stamp paper worth Rs.600/-and attested by the Notary/resolution of Board of Directors of the firm as the case may be for signing the bid document/ executing of agreement etc. 3. Letter of Application 4. Formats and Questionnaires as per the pre-qualification bid document for Technical Experience and Financial Capability duly filled in by the applicant (In the case of consortium, formats and questionnaires shall be submitted for each member of consortium). 5. Supporting documents as per clause 13 above. 6. Details of nominated Sub contractors, if any, of the applicant and their identified works. 7. Declarations as per Annexure 1 and 4 of Vol.I. 8. Corrigenda published, if any. 9. Complete construction programme. 34. Clause 22 of Ext.P1 deals with the manner in which application is to be evaluated, and it reads thus: “22. Evaluation of Application The bidders shall submit the Pre qualification bid duly filled in as stated in this Pre qualification bid document, along with other bid documents before the due date of submission. The Bidder shall furnish relevant details as per the formats, documentary evidence, photograph, audited financial statements for the last three years etc. The details of pre qualification are given in Volume - I of these documents. After examination and evaluation, the Board will select the qualified bidders. The result of Pre-qualification will be informed to all the bidders through the e-procurement website. In the first stage, the pre qualification bids will be thoroughly evaluated for the financial capability and technical soundness of the bidders. After examination and evaluation, the Board will select the qualified bidders. The result of Pre-qualification will be informed to all the bidders through the e-procurement website. In the first stage, the pre qualification bids will be thoroughly evaluated for the financial capability and technical soundness of the bidders. For this, the value of work done, audited annual accounts, bankers certificate etc. will be evaluated to assess their financial capability. Nature, volume, type etc. of works done, type of clients, tools, plants and machinery possessed by the bldder, availability of required managerial and technical persons etc. will be evaluated to assess the technical soundness. The documents accompanied with PQ bids shall be responsive to the PQ bid criteria. Only qualified bids in the pre qualification shall be considered for further evaluation. Board will use the criteria and methods described in clause No. 26 to determine the qualifications of the Bidders. In the case of joint venture/ consortium/ group, financial and technical capability of each member of the consortium will be evaluated and combined capability will be considered for the qualification of the applicant.” 35. Clause 24 states that all bidders, whose bids have been found to be substantially responsive to the requirements of the pre- qualification bid document and who have met or exceeded the eligibility criteria vide clause No.27 and 29 in the opinion of the Board will be qualified for further evaluation. 36. Clause 26 dealing with ‘eligibility parameters’ states that the bidders financial capability and technical soundness is proposed to be assessed based on the parameters enumerated thereunder. Clauses 26.1 to 27.2 are the most important aspects to decide the issues and therefore, they are extracted hereunder: 26.1 Financial Capability (i) Total turnover for the last three completed financial years. (ii) Latest solvency certificate from bank issued within last six months defined in Part I of Volume II or from revenue authorities specifying the solvency amount. In case of a foreign bidder, the certificate issued by their respective banker shall be translated to English, Embassy attested and Notarised. The notarization is to be made in the foreign country itself where Embassy attestation is being done. 26.2 Technical Capability 26.2.1 (a) The bidder shall have sufficient experience as individual/ as a consortium member in the execution of Hydro Electric Project OR irrigation projects having any of the components viz. The notarization is to be made in the foreign country itself where Embassy attestation is being done. 26.2 Technical Capability 26.2.1 (a) The bidder shall have sufficient experience as individual/ as a consortium member in the execution of Hydro Electric Project OR irrigation projects having any of the components viz. Dam/weir, water conductor system, Design, fabricatjon and erection of Hydro- Mechanical works. b) The lead bidder should have satisfactorily completed Civil works of at least one hydro-electric project as a prime Contractor/ as a consortium partner during the last seven years as on the date of notice inviting bid. c) The bidder shall have sufficient experience as individual/ as a consortium member in the execution of tunnel driving works. 26.2.2 Previous experience in Planning, Engineering, Construction of hydro electric projects/ Irrigation projects, Civil Engineering works such as dams, power houses etc., Supply, Erection, Testing and Commissioning of Hydro-Mechanical equipments of Hydro Electric Projects. 26.2.3 Availability of Plant, Equipment and Machinery. 26.2.4 Availability of Technical and Managerial organization. 27 Qualification Criteria for Financial Capability 27.1 The bidder should have a total turnover of not less than 75% of Probable Amount of Contract of the work bidded, for the last three financial years. In case of joint venture, all partners combined shall meet the requirement. However, the lead member shall have a total turnover of not less than 30% of Probable Amount of Contract for the last three years. 27.2 Latest Solvency Certificate from the Bank issued within last 6 months, defined in Part I of Volume II/Revenue authorities specifying a solvency amount of 50/% of Probable Amount of Contract of the work bidded. If the bidder or any of the partners of Consortium is a foreign entity, then the solvency certificate issued by their respective banker shall be translated to English, Embassy attested and Notarized. The notarization is to be made in the foreign country itself where Embassy attestation is being done. The assessment of the Applicant's total turnover for the last three years shall be based on the audited annual accounts submitted by the bidder. In case the annual accounts for the latest financial year are not audited and therefore, the applicant could not make it available, the Applicant shall give an undertaking to this effect and statutory auditor shall certify the same. In case the annual accounts for the latest financial year are not audited and therefore, the applicant could not make it available, the Applicant shall give an undertaking to this effect and statutory auditor shall certify the same. In such a case, the applicant shall provide the un-audited Annual Accounts (with schedule) for the latest financial year, duly certified by the Statutory Auditor as well as Audited Reports for three years preceding the latest financial year.” 37. On an evaluation of the afore-quoted terms and conditions of the Ext. P1 Notice Inviting Tender makes it clear that definite and imperative parameters are fixed in order to pre-qualify a bidder technically and financially. The intrinsic question revolves around clauses 27.1 and 27.2 of Exhibit P1. Clause 27.1 states that the bidder should have a total turnover of not less than 75% of the Probable Amount of Contract of the work bidded, for the last three financial years and in the case of joint venture, all partners combined shall meet the requirement. 38. There is no dispute at all that the appellants and the third respondent are qualified in accordance with the first limb of clause 27.1. But, clause 27.1 further insists that “however, the lead member shall have a total turnover of not less than 30% of the Probable Amount of Contract for the last three years.” The last three years are clearly understood by the parties and the Board as the financial years 2019-2020, 2020-2021 and 2021-2022. 39. The predominant contention advanced by the appellants is that M/s. Anchor Structurals, the partnership firm, and lead bidder is not having a total turnover of 30% of the Probable Amount of Contract during the aforesaid financial years. We find force in the said contention because even according to the third respondent, it is only by merger and fusion of the income and assets of the Proprietor, Dr. Sasi Eloor and M/s. Anchor Structurals, the lead bidder, is having 30% of the Probable Amount of Contract as the merger agreement, Exhibit P8 dated 01.04.2022. 40. The question arises for consideration is, can the assets of Dr. Sasi Eloor, the Proprietor, be included in the turnover of M/s. Anchor Structurals for the years 2019-2020, 2020-2021 and 20212022 to satisfy the mandate of the financial qualification. 40. The question arises for consideration is, can the assets of Dr. Sasi Eloor, the Proprietor, be included in the turnover of M/s. Anchor Structurals for the years 2019-2020, 2020-2021 and 20212022 to satisfy the mandate of the financial qualification. In our view, since the specific term of the NIT, which is a mandatory and essential requirement as discussed above, that the lead bidder shall have a total turnover of not less than 30% of the Probable Amount of Contract for the last three years, the partnership firm, M/s. Anchor Structurals, being the lead bidder should have the qualification during the said financial years and not the infused accounts of the parties as contended, as on 01.04.2022. To make it more clear, merely executing an agreement of merger by Dr. Sasi Eloor and the partnership firm M/s. Anchor Structurals in which he is the Managing Partner on 01.04.2022, that can never be related back to the audited annual accounts of M/s. Anchor Structurals, the lead bidder for the years specified above. This is more clear when clause 27.2 in the latter portion states that the assessment of the applicant’s total turnover for the last three years shall be based on the audited annual accounts submitted by the bidder. 41. Therefore, on a conjoint reading of clauses 3.1.6, 27.1 and 27.2, it is explicit and clear that the lead bidder should have 30% of the Probable Amount of Contract for the last three years. Admittedly, the lead bidder is not satisfying the said criteria, which is quite clear and evident from the arguments advanced by the third respondent itself and Exhibit P9 certificate issued by the Chartered Accountant. 42. The learned Standing Counsel for the KSEB Limited placed heavy reliance on the decisions in New Horizon Limited and another v. Union of India and others [1995 KHC 1244], IMS Bhatia Transport Contractor v. Union of India and others [2021 KHC 4752], Addanki Narayanappa v. Bhaskara Krishnappa [1966 KHC 601], Avula Contractions Pvt. Ltd. & others v. Senior Divisional Electrical Engineer, Traction Distribution, South Central Railway and others [[ AIR 1999 AP 318 ] and M/s. C.K. ASATI VS. Union of India and Ors. [ AIR 2005 MP 96 ] and submitted that when there is merger by an individual and a partnership firm, the entire income, assets and liabilities would axiomatically become the assets and liabilities of the firm. 43. Union of India and Ors. [ AIR 2005 MP 96 ] and submitted that when there is merger by an individual and a partnership firm, the entire income, assets and liabilities would axiomatically become the assets and liabilities of the firm. 43. No doubt, in respect of the experience and the technical capabilities of the individual partners, it may be correct, but in respect of the imperative financial requirements as per Exhibit P1 NIT, it cannot be sustained. Even from a common man's point of view, the assets and liabilities of Dr. Sasi Eloor, secured by the partnership firm M/s. Anchor Structurals on 01.04.2022, can only be included as income, asset and liabilities of the firm M/s. Anchor Structurals of the financial year 2022-2023 alone. 44. Even though in spite of our earnest efforts and queries made during the course of arguments, neither the learned counsel for the Board nor the learned counsel for the third respondent could point out a provision either in the Income Tax Act or in Exhibit P1 that the lead bidder is entitled to re-open the audited annual accounts by its own volition to include the income, assets and liabilities of Dr. Sasi Eloor in the audited accounts of the lead bidder, M/S Anchor Structurals, for the financial years 2019-2020, 2020-2021, 2021-2022. 45. It is also relevant to note that a certificate is required under clause 27.2 of Exhibit P1 from a statutory auditor, only in case the annual accounts for the latest financial year are not audited and the applicant could not make it available, the applicant shall provide the un-audited annual accounts (with schedule) for the latest financial year, duly certified by the statutory auditor as well as the audited reports for three years preceding the latest financial year. In this regard, Ext.P9 certificate dated 17.06.2022 issued by the Chartered Accountant along with the Annexure forming part of the certificate is relevant and important. It reads thus: 17-06-20222 CHARTERED ACCOUNTANT'S CERTIFICATE We have verified the books of accounts of the partnership firm M/s Anchor Structurals, Engineering and Contractors, carrying on Contract business under the Trade name M/s ANCHHOR STRUCTURALS with Income-tax PAN AANFA1748G and GST registration No. 32AANFA1748G1ZN having Registered Office at, Eloor House, Kolenchery in Connection with certification of Contract receipts for submission of bid to be submitted to KSEB Ltd. or/and other departments for tendered works. In terms of a ASSET AND BUSINESS OPERATION TRANSFER AGREEMENT dated 1.4.2022 the assets and liabilities of Dr. SASI ELOOR carrying on Civil Construction Contract as a proprietary business under the name and style DR. SASI ELOOR, ENGINEERING CONTRACTOR with Income tax PAN AABPE1461A and GST registration No.32 AABPE1461A2ZR have been transferred to the partnership Firm as a going Concern. Therefore we are of the Opinion that the Contract receipts of the acquired Proprietary business of Dr Sasi Eloor can be included in the Total turnover of the Bidding Firm (M/S ANCHOR STRUCTURALS) We hereby certify that the total contract receipts of M/s. Anchor Structurals (after including Turnover of the Proprietary Concern above as per details in annexure) are as follows for the financial years 2019-2020, 2020-21 and 2021-2022. Financial Year) Total Turnover of bidder 2019-20 (Audited) 30,61,82,133 2020-21 (Audited) 19,59,31,795 2021-22 (Un-audited) 20,25,62,737 UDIN for the Document is 22204767ALCVIU7018 For R. Krishna Iyer & Co. K. Parvathy Ammal. Annexure Forming part of Certificate dated 17th June, 2022 Details of Consolidation of Turnover Financial Year Sasi Eloor Anchor Structurals Total Turnover 2019-20 (Audited) 12,12,11,671 18,49,70,462 30,61,82,133 2020-21 (Audited) 5,97,28,009 13,62,03,786 19,59,31,795 2021-22 (Un-Audited) 4,60,23,452 15,65,39,285 20,25,62,737 46. It is relevant to note from the certificate that the Chartered Accountant has only certified that the contract receipts of the acquired proprietory business of Dr. Sasi Eloor can be included in the total turnover of the lead bidder, M/s. Anchor Structurals; and the total turnover of Dr. Sasi Eloor and M/s Anchor Structurals, the partnership firm together would satisfy the requirement of clause 3.1.6 r/w clause 27. 1 and 2 of Exhibit P1. 47. In that regard, the learned counsel for the third respondent, relying upon the contentions advanced in the counter affidavit filed in the writ appeal, submitted that as per Section 147 of the Income Tax Act, 1961 (‘Act, 1961’ for short), the Income Tax Department has the power to re-assess an individual's previously filed income tax returns, and as per Section 149 of the Act, 1961, notice under Section 148 in that regard could be issued within a period of three years and in cases falling under Section 148(b) even upto 10 years. 48. It is further submitted that pursuant to a search under Section 132 of the Act, 1961, the authorities can initiate block assessment under Section 158-BD and Section 158-BC for six years. 48. It is further submitted that pursuant to a search under Section 132 of the Act, 1961, the authorities can initiate block assessment under Section 158-BD and Section 158-BC for six years. It is further contended that in case any proceedings are initiated under those provisions against the proprietory concern of Dr. Sasi Eloor, the authorities can assess and proceed against the lead bidder M/s. Anchor Structurals, in the light of the terms contained in Exhibit P8 agreement dated 01.04.2022, and if so, the lead bidder M/s. Anchor Structurals can also claim financial turnover of the proprietory concern of Dr. Sasi Eloor for the previous financial years in the light of Exhibit P8 agreement dated 01.04.2022. 49. However, on a perusal of Section 147 of the Act, 1961, it is quite clear and evident that it is dealing only with the income escaping assessment, which clearly states that if any income chargeable to tax, in the case of an assessee, has escaped assessment for any assessment year, the Assessing Officer may, subject to the provisions of Sections 148 to 153, assess or reassess such income or recompute the loss or the depreciation allowance or any other allowance or deduction for such assessment year. The explanation thereto further makes it clear that for the purposes of assessment or reassessment or recomputation under Section 147, the Assessing Officer may assess or reassess the income in respect of any issue, which has escaped assessment, and such issue comes to his notice subsequently in the course of the proceedings under the section, irrespective of the fact that the provisions of Section 148-A have not been complied with. 50. Therefore, it can be seen that there is no escape of any income for the purpose of assessment for the past three years due to the very fact that Exhibit P8 agreement as per which the assets, income and liabilities of Dr. Sasi Eloor is merged with the partnership firm, is only dated 01.04.2022, which is only a subject matter for the financial year 2022-2023 and the assessment year 2023-2024. Further, there is no scope at all for reopening the concluded assessment of the previous three years on account of the income generated to the partnership firm, the lead bidder on the basis of Exhibit P8 agreement. Sections 158-BC and 158-BD coming under Chapter XIVB deals with ‘special procedure for assessment of search cases’. 51. Further, there is no scope at all for reopening the concluded assessment of the previous three years on account of the income generated to the partnership firm, the lead bidder on the basis of Exhibit P8 agreement. Sections 158-BC and 158-BD coming under Chapter XIVB deals with ‘special procedure for assessment of search cases’. 51. On an analysis of the provisions contained thereunder, we are convinced that the said provisions also would not come into play, in order to satisfy the requirements contained under the discussed mandatory requirements of the Notice Inviting Tender. However, Section 184 coming under Chapter XVI of the Act, 1961 dealing with ‘special provisions applicable to firms’, specifies that once a firm shall be assessed as a firm for the purposes of the Act, if (i) the partnership is evidenced by an instrument; and (ii) the individual shares of the partners are specified in that instrument. Sub-Section (2) thereto makes it clear that a certified copy of the instrument of partnership referred to in sub-section (1) shall accompany the return of income of the firm of the previous year relevant to the assessment year commencing on or after the 1st day of April, 1993 in respect of which assessment as a firm is first sought. Other methodologies are prescribed thereunder in order to assess the accounts of a firm. 52. Section 187 of the Act, 1961 deals with ‘change in constitution of a firm’ and sub-Section (1) enumerates that where at the time of making an assessment under Section 143 or Section 144, it is found that a change has occurred in the constitution of a firm, the assessment shall be made on the firm as constituted at the time of making the assessment. Sub-Section (2) of Section 187 is relevant to the context and it reads thus: “(2) For the purposes of this section, there is a change in the constitution of the firm— (a) if one or more of the partners cease to be partners or one or more new partners are admitted, in such circumstances that one or more of the persons who were partners of the firm before the change continue as partner or partners after the change; or (b) where all the partners continue with a change in their respective shares or in the shares of some of them: Provided that nothing contained in clause (a) shall apply to a case where the firm is dissolved on the death of any of its partners.” Therefore, on a reading of the said provision, it is clear that the assessment shall be made on the firm as constituted at the time of making the assessment. 53. Section 188A of the Act, 1961 dealing with ‘joint and several liability of partners for tax payable by firm’, states that every person who was, during the previous year, a partner of a firm, and the legal representative of any such person who is deceased, shall be jointly and severally liable along with the firm for the amount of tax, penalty or other sum payable by the firm for the assessment year to which such previous year is relevant, and all the provisions of the Act, so far as may be, shall apply to the assessment of such tax or imposition or levy of such penalty or other sum. 54. The above said provisions are deliberated for the purpose of demonstrating that by virtue of the agreement executed on 01.04.2022, the income generated by the firm consequent to merger of the assets and liabilities of the individual partner can only be treated as an income for the succeeding financial and assessment years. This is more clear from the Guidance Note issued by the Institute of Chartered Accountants of India (ICAI), Accounting Standards (AS)4 dealing with ‘contingencies and events occuring after the balance sheet date. The guidance not issued by the ICAI was considered by the Apex Court as an appropriate one in the judgment in CIT v. Virtual Soft Systems Ltd. [ (2018) 6 SCC 584 ]. 55. The guidance not issued by the ICAI was considered by the Apex Court as an appropriate one in the judgment in CIT v. Virtual Soft Systems Ltd. [ (2018) 6 SCC 584 ]. 55. Paragraph 8.3 under the head ‘events occurring after the balance sheet date, inter alia stipulates that “adjustments to assets and liabilities are not appropriate for events occurring after the balance sheet date, if such events do not relate to conditions existing at the balance sheet date.” 56. Likewise, paragraph 32 of the guidelines dealing with ‘contingent assets’, states that contingent assets are not recognised in financial statements, since that may result in the recognition of income that may never be realised; however, when the realisation of income is virtually certain, then the related asset is not a contingent asset and its recognition is appropriate. 57. Similarly, paragraph 34 thereto states that contingent assets are assessed continually and if it has become virtually certain that an inflow of economic benefits will arise, the asset and the related income are recognised in the financial statements of the period in which the change occurs. 58. So also, paragraph 44 thereto states that gains from the expected disposal of assets should not be taken into account in measuring a provision. Paragraph 45 further clarifies that gains on the expected disposal of assets are not taken into account in measuring a provision, even if the expected disposal is closely linked to the event giving rise to the provision, and that instead, an enterprise recognises gains on expected disposals of assets at the time specified by the Accounting Standard dealing with the assets concerned. 59. Therefore, under any stretch of imagination, we are unable to comprehend the contentions advanced by the Kerala State Electricity Board Limited as well as the third respondent that the joint audited/unaudited assessment of Dr. Sasi Eloor and the firm M/s. Anchor Structurals would meet the requirements contained under clauses 3.1.6 and 27.2 of Ext.P1. However, the learned Standing Counsel for the Board as well as the third respondent have advanced a contention that the clauses contained under Ext.P1 Notice Inviting Tender is to be evaluated and appreciated from the bidding authority’s point of view and therefore, the authority is vested with ample powers to interpret the provisions of the Notice Inviting Tender and arrive at its own conclusions. 60. 60. The question with respect to the sanctity or solemnity of the terms and conditions contained in a Notice Inviting Tender was considered by the Apex Court in various judgments. In Vidarbha Irrigation Development Corporation and Others v. Anoj Kumar [ 2020 (17) SCC 577 ], it was held as follows at paragraph 16 thus: "16. It is clear even on a reading of this judgment that the words used in the tender document cannot be ignored or treated as redundant or superfluous—they must be given meaning and their necessary significance. Given the fact that in the present case, an essential tender condition which had to be strictly complied with was not so complied with, the appellant would have no power to condone lack of such strict compliance. Any such condonation, as has been done in the present case, would amount to perversity in the understanding or appreciation of the terms of the tender conditions, which must be interfered with by a constitutional court.” 61. In Sterling Computers Ltd. v. M & N Publications Ltd. [ (1993) 1 SCC 445 ], it was held by the Apex Court at paragraph 12 thus: “12. At times it is said that public authorities must have the same liberty as they have in framing the policies, even while entering into contracts because many contracts amount to implementation or projection of policies of the Government. But it cannot be overlooked that unlike policies, contracts are legally binding commitments and they commit the authority which may be held to be a State within the meaning of Article 12 of the Constitution in many cases for years. That is why the courts have impressed that even in contractual matters the public authority should not have unfettered discretion. In contracts having commercial element, some more discretion has to be conceded to the authorities so that they may enter into contracts with persons, keeping an eye on the augmentation of the revenue. But even in such matters they have to follow the norms recognised by courts while dealing with public property. In contracts having commercial element, some more discretion has to be conceded to the authorities so that they may enter into contracts with persons, keeping an eye on the augmentation of the revenue. But even in such matters they have to follow the norms recognised by courts while dealing with public property. It is not possible for courts to question and adjudicate every decision taken by an authority, because many of the Government Undertakings which in due course have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand, they can come out with a plea that it is not always possible to act like a quasi-judicial authority while awarding contracts. Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the courts, such decisions are upheld on the principle laid down by Justice Holmes, that courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of “play in the joints” to the executive.” 62. In Raunaq International Ltd. v. I.V.R. Construction Ltd. [1999(1)SCC492], it was held as follows at paragraph 9 thus: “9. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are of paramount importance are commercial considerations. These would be: (1) the price at which the other side is willing to do the work; (2) whether the goods or services offered are of the requisite specifications; (3) whether the person tendering has the ability to deliver the goods or services as per specifications. These would be: (1) the price at which the other side is willing to do the work; (2) whether the goods or services offered are of the requisite specifications; (3) whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important; (4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (5) past experience of the tenderer and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take follow-up action, rectify defects or to give post-contract services. …' 63. In Global Energy Ltd. v. Adani Exports Ltd. [ (2005) 4 SCC 435 ], it was held that the terms of the invitation to tender are not open to judicial scrutiny and the courts cannot whittle down the terms of the tender, as they are in the realm of contract, unless they are wholly arbitrary, discriminatory or actuated by malice. 64. In Air India Ltd. v. Cochin International Airport Ltd. [ (2000) 2 SCC 617 ], it is held as follows at paragraph 7: “7. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in Ramana Dayaram Shetty v. International Airport Authority of India [ (1979) 3 SCC 489 ], Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India [ (1981) 1 SCC 568 ], CCE v. Dunlop India Ltd. [ (1985) 1 SCC 260 : 1985 SCC (Tax) 75], Tata Cellular v. Union of India [ (1994) 6 SCC 651 ], Ramniklal N. Bhutta v. State of Maharashtra [ (1997) 1 SCC 134 ] and Raunaq International Ltd. v. I.V.R. Construction Ltd. [ (1999) 1 SCC 492 ] The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene.” 65. Therefore, on the basis of the legal propositions of law laid down by the Apex Court, it is clear that the terms of invitation to tender are not open to judicial scrutiny, the same being a subject matter of a commercial venture entered into by and between a State authority and a contractor. It may be true, the authority may be having sufficient leverage and freedom for a necessary purpose and to deal with the possibility of functionality while executing the contract. However, the authority is not vested with power to overlook the criteria fixed by it as a mandatory requirement to pre-qualify a bidder to process the documents submitted by the bidder. 66. However, the authority is not vested with power to overlook the criteria fixed by it as a mandatory requirement to pre-qualify a bidder to process the documents submitted by the bidder. 66. As we have pointed out above, clear mandatory requirements contained under the clauses deliberated above were flouted by the authority and pre-qualified the third respondent as a successful bidder to further proceed with his application being the lowest tenderer. Therefore there is force in the appeal. 67. But, fact remains, there is a substantial difference in the bid offered by the appellants and the third respondent. However in the reply affidavit filed in the writ appeal, it is undertaken by the appellants that they would match with the bid submitted by the third respondent. 68. The same situation was noted by the Apex Court in Vidarbha Irrigation Development Corporation (supra). Paragraph 19 thereto is relevant and it reads thus: “19. We may record that Mr Basant very fairly submitted before us that he will match the amount of Rs 39.15 crores that was the bid of Respondent 2 before us. We record this statement and order, therefore, that the work now be performed by Respondent 1 at this bid amount. The judgment [Anoj Kumar Agrawala v. Vidarbha Irrigation Development Corpn., 2018 SCC OnLine Bom 9472] of the High Court, insofar as para 27 is concerned, is set aside.” 69. Even though the proposition of law laid down by the Apex Court in Tata Cellular v. Union of India [ (1994) 6 SCC 651 ], Jagdish Mandal v. State of Orissa [ 2007 (14) SCC 517 ] and other judgments are pressed into service by the learned Standing Counsel appearing for the Board as well as the third respondent to canvas a proposition that normally and ordinarily a judicial review in a contractual matter is not possible, in view of the findings rendered by us above, the principles of law laid down by the Apex Court in the above as well as the other judgments may not strictly apply to the instant case. 70. Taking into consideration the factual and legal circumstances discussed above, we are of the undoubted opinion that interference is required to the judgment of the learned single Judge. 70. Taking into consideration the factual and legal circumstances discussed above, we are of the undoubted opinion that interference is required to the judgment of the learned single Judge. Therefore, we allow the appeal and consequently, we declare that the third respondent has not qualified the financial bid to process the application/bid documents submitted by the third respondent further. It is an admitted fact that the appellants were found to be technically and financially qualified by the Kerala State Electricity Board Limited. 71. However, the learned counsel for the third respondent contended that the second appellant is not having 30% of the contract value for the assessment year 2021-2022 to satisfy the requirements in question. But, fact remains, the Notice Inviting Tender clearly specifies that what is required is that the lead bidder in the consortium/joint venture shall have a total turnover of not less than 30% of the Probable Amount of Contract for the last three financial years. 72. Even going by the arguments advanced by the learned counsel for the third respondent, it is quite clear and evident that the second appellant is having a total turnover of more than 30% of the Probable Amount of Contract taking into account the turnover for the period 2019-2020 and 2020-2021. In the result, the appeal is allowed; consequently there will be a direction to the respondents 1 and 2 to process the application submitted by the appellants in accordance with law and finalise the same at the earliest and at any rate within three weeks from the date of receipt of a copy of this judgment.