M/S Frontier Construction Company vs. Union Of INDIA And 3 Ors.

A Demand-cum-show cause notice bearing F. No. V(15)/3/ADJ/ ST/COMMR/DIB/2020/5972 dated 29.09.2020 was issued by the Joint Commissioner, Central Goods and Services Tax, C.R. Building, Milan Nagar, Dibrugarh-786003 alleging inter-alia that the Petitioner had wilfully suppressed material facts to evade payment of service tax to the tune of Rs. 61,86,425/- for the period from financial year

In response to the said Demand-Cum-Show Cause Notice dated 29.09.2020, the Petitioner submitted written replies dated 15.10.2020 and 20.10.2020 and in its reply dated 20.10.2020 the petitioner submitted copies of 26AS statement for the financial year 2014-15, 2016-17 and 2017-18, bank statements for the said periods and inter alia stated that the entire contract receipts were from the Public Welfare Department and as such the same were exempted from payment of service tax. In the said reply the petitioner also stated that neither any tax was collected nor paid to them by the PWD Department Kohima and prayed that the demand be vacated and intimation be issued in that regard. The petitioner firm at the relevant time was engaged in the business of providing works contract services. The petitioner firm was awarded the work of construction of Legislative Assembly, Nagaland at Kohima on 22.11.1991 by the PWD (H & B), New Capital Complex Division, Kohima, Nagaland and the petitioner received Rs. 44,25,500/- and Rs. 1,68,56,895/- respectively in the financial years 2014-15 and 2016-17 towards execution of the aforesaid contract. The petitioner was also awarded the work of construction of school building by the Development Authority, Nagaland, Dimapur on 16.11.2009 and for execution of the said contract, the petitioner received a sum of Rs. 95,25,304/- and Rs. 1,29,72,883/- respectively in the year 2014-15

Being aggrieved by the aforesaid Order-In-Original dated 01.03.2022 passed by the Additional Commissioner, Central Goods and Services Tax, the petitioner preferred an appeal before the Commissioner(Appeals), Central Goods and Services Tax, Central Excise and Customs, GST Bhavan, Kedar Road, Guwahati on 24.05.2022 along with an application for condonation of delay in filing the said appeal. In the said appeal the petitioner submitted that the petitioner had received a total consideration of Rs. 4,63,80,582/- during the years 2014-15, 2016-17 and 2017-18 on account of work executed in the year 1991 and 2009 respectively on account of construction of Legislative Assembly of Nagaland and Construction of School Building in Nagaland and also produced the relevant work orders and payment receipts in connection thereto. The petitioner also furnished certificates issued by the respective Government authorities providing details of the works executed and on the basis of the aforesaid documents the petitioner submitted before the Commissioner(Appeals), Central Goods and Services Tax, Central Excise and Customs that the aforesaid works contracts are exempted from levy of service tax as per Sl. No. 12a and 12A(a) of the Mega Exemption Notification No. 25/2012 dated 20.06.2012. The petitioner also stated in the appeal that the income reflected in Form 26AS is not a proper basis to determine service tax liability without establishing nature of service and the purpose for which income is received and on the basis of 26AS alone, it cannot be said that service tax has not been paid or has been short-paid or short-levied.

The Commissioner(Appeals), Central Goods and Services Tax, Central Excise and Customs without considering the submissions made by the petitioner in the appeal, vide order-in-appeal dated

2023 rejected the appeal and confirmed the demand as held in the order-in-original dated 01.03.2022 passed by the Additional Commissioner, Central Goods and Services Tax. The Commissioner(Appeals), Central Goods and Services Tax, Central Excise and Customs condoned the delay in filing the appeal and rejected the appeal on merits. In the said appellate order dated 11.10.2023 the Commissioner(Appeals), Central Goods and Services Tax, Central Excise and Customs, inter alia, held that the claim of the petitioner about the works contract relates to the year 1991 and 2009 and the period covered under demand is 2014-15 to 2017-18 and the petitioner had failed to substantiate before the adjudicating authority its claim by way of any supporting documents and as such rejected the appeal filed by the petitioner.

The learned Senior counsel for the petitioner submits that the only reason recorded by the Additional Commissioner, Central Goods and Services Tax in its Order-in-Original dated 01.03.2022 in levying Service Tax that on security of the third party data i.e. Form 26AS, the Petitioner was found to have rendered taxable services. The learned Senior counsel further submits that the Form 26AS is the Certificate of Tax Deduction at Source issued by the Income Tax Department showing the total amount of tax deducted at source

The learned Senior counsel for the petitioner submits that the Central Government being satisfied that it is necessary in the public interest so to do exempt certain taxable services from the whole of the service tax leviable thereon under section 66B of the Finance Act, 1994. Services provided to the Government or a governmental authority by way construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation or alteration of civil structure or any other original works meant for use other than commerce, industry or any other business or profession are exempted under Clause 12A(a) of the said Notification dated 20.06.2012. Clause 12A(a) of the said notification is reproduced below for the sake of convenience : "12A. Services provided to the Government, a local authority or a governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of (a) a civil structure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession, (b) ****** (c) ******* Under a contract which had been entered into prior to 1st March, 2015 and on which appropriate stamp duty, where applicable, had been paid prior to such date: Provided that nothing contained in this entry shall apply on or after the 1st April 2020’.

The learned senior counsel for the petitioner further submits that the impugned order-in-original dated 01.03.2022 passed by the Additional Commissioner, Central Goods and Services Tax is based on third party data and information received from the Central Board of Direct Taxes. He submits that the Income Tax and Service Tax are two different, separate and independent Acts and their provisions operating in two different fields. Therefore by relying the 26 AS/TDS Statement under the Service Tax Act, demand of service tax cannot be made. Therefore the impugned order-in-original dated 01.03.2022 passed by the Additional Commissioner, Central Goods and Services Tax imposing penalty and the subsequent order-in-appeal dated 11.10.2023 passed by the Commissioner(Appeals), Central Goods and Services Tax, Central Excise and Customs upholding the order dated 01.03.2022 are absolutely illegal, without juri iction, bad in law and liable to be interfered with. Being aggrieved, the present writ petition has been filed putting a challenge to impugned Demand cum show cause notice dated 29.09.2020; the impugned Order-in-Original dated 01.03.2022 and Order-inn-Appeal dated 11.10.2023. 10. The learned Senior counsel for the petitioner submits that for reported in (1987) 27 ELT 648 and M/S N.E Logistics &Anr. Vs. Union of India & 2 Ors. [W.P(C) No. 1870/2020]. It is submitted that in N.E Logistics (Supra), similar show cause notice was issued based on information collected from the Income Tax Department through Form 26AS. It is submitted that the High Court remanded the matter back to the authorities on the ground that the department had proceeded on a presumption that the assessee therein was liable to pay tax. It was held that the liability to pay tax of a service tax is not based on presumption nor can it be based upon the State of indeterminateness on the part of the authorities. Liability to pay the tax has to be conclusively determined for a given transaction for which the tax is imposed and for which the noticee has been held to be liable to pay tax as the same determination has not been made, the matter was remanded back to the Principal Commissioner, CGST for fresh determination and the assesses therein were given a opportunity to produce any relevant materials to show cause that the contract works for the service tax has been imposed for which the noticee is not liable to pay for such transaction.

It is submitted on behalf of the petitioner that by the said Judgment directed that after arriving at a conclusive determination reasoned order or a further demand notice as the case may be issued by the authorities. However, if on the other hand in the conclusion arrived at that the petitioner is not liable to pay service tax appropriate reason order is to be passed. It is submitted that the order has attained finality as no appeal has been preferred against the said Judgment.

The learned Senior Counsel for the petitioner also pressed into service Judgment rendered in Luit Developers Private Limited Vs. Commissioner of CGST & Central Excise, Dibrugarh (Service Tax Appeal No. 75792 of 2021) by the Customs, Excise & Service Tax Appellate Tribunal, Kolkata. While dealing with the imposition of service tax levied on the basis of entries in Form 26AS of the Income

The learned Senior counsel for the petitioner submits that in the present case the Service Tax has been levied on the basis of the information reflected in the 26AS statement of the Income Tax. The 26AS statement only reflects the Income Tax deducted at source and the amount from which the said tax has been deducted. The said 26AS statement cannot determine the liability of the Service Tax of the petitioner inasmuch as only because Income Tax was deducted at source from certain receipts in respect of the various services rendered, it cannot be said that the said services were taxable under the Finance Act of 1994. A particular receipt on account of services rendered though may be liable to Income Tax under the Income Tax Act, 1961, the same may not be liable for payment of service tax because of the exemptions granted under the Finance Act of 1994, or because the liability for payment of service tax may have been fastened on the service recipient on reverse charge basis. As such the information contained in the 26AS statement cannot by any stretch of imagination be said to be indicative of the fact that the services in respect of which the amount was received and the income tax was deducted at source on the said receipt were also taxable under the Finance Act of 1994 and liable to Service Tax. The Adjudicating Authority simply on the basis of inferences and analogy levied Service Tax on the entire receipts as reflected in the 26AS statement without examining the fact as to whether those Services were liable to Service Tax under the Finance Act of 1994. Without undertaking such an exercise and examination, the Adjudicating Authority cannot levy the Service Tax on the said receipts as has been held by the Apex Court that Tax cannot be imposed on the basis of Inferences and analogy. Since in the present case the entire Service Tax liability has been imposed any on inferences and analogy without coming to a finding that the said services were liable to Service Tax under the Finance Act of 1994 the impugned Adjudication Order is absolutely illegal, without juri iction, and the same is liable tobe set aside and quashed.

It is further submitted by Dr. Saraf, learned Senior Counsel that in the present case the adjudicating authority has levied service tax without examining the facts and without coming to a finding that the said services were taxable and simply on the basis of the information

The impugned order in original is further assailed on the ground that the extended period of limitation is illegal as there was no suppression, fraud, collusion or willful misstatement or suppression of facts or contravention of any of the provisions of the Act. Dr. Saraf, learned Senior counsel submits that Section 73 specifies recovery of service tax not levied or paid or short-levied or short paid or erroneously refunded and in such an event, the extended period of five (5) years is applicable. It is submitted that a section itself prescribes that the provisions of the section would be applicable for recovery of Service Tax not levied or paid or short levied or short paid or erroneously refunded by reasons of –

It is submitted that for initiating any proceeding under Section 73 of the Act, there must be tax levied or paid or short-levied or short paid or erroneously refunded. Further the Notice has to be issued within a period of eighteen (18) months from the relevant date on the person chargeable with the service tax which has not been levied or paid or erroneously refunded. The Proviso to the said sub-section (1) also specifies that such notice can be issued within such extended period of five years only if such short-levy or short- payment or erroneous refunds were by reasons of fraud, collusion, willful misstatement, suppression of facts or contravention of any of the provisions of the Act or the Rules made thereunder with the interest to evade payment of tax.

It is submitted by the learned Senior counsel that assuming though not admitting that there was a failure to furnish correct information, however, the same does not constitute suppression unless the failure/omission to furnish information or failure to pay mis-statement. The latter implies making of an incorrect statement with the knowledge that the statement made was not correct. It was further held therein that a mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment duty in order to evade duty.

Referring to the Judgment of Apex Court rendered in CCE Vs. Chemphar Drugs & Liniments, reported in (1989) 2 SCC 127 , the “contravention of an of the provisions of the Act or Rules” are qualified by the immediately following words “with intent to evade payment of duty”, and therefore it was not correct to say that there can be a suppression or misstatement of fact, which was not willful and yet constitutes a permissible ground for the purpose of the proviso to Section 11A. It is submitted that the law laid down by the Apex Court in this Judgment are squarely applicable in the present case inasmuch as there is no such finding the adjudicating authority while invoking the powers under Section 73 by invoking the extended period of limitation. It is submitted that the intent to evade payment of tax cannot be established by peering into the minds of the tax payer but has to be established through evaluation of the tax behavior.

Referring to the Judgments pressed into service in support of his contention, Dr. Saraf urges that from the law laid down by the Apex Court and referred to by him, it is clear that without examining

It is further submitted by the learned Senior counsel that if an Notification No. 25/2012 S.T. dated 20.06.2012 w.e.f. 01.07.2012 as Orissa, reported in (1972) 83 ITR 26; B.D Khaitan Vs. Income Tax be set aside and quashed. Such a non-speaking order is not maintainable in law and same is liable to be set aside and quashed.

In so far as the question of maintainability of the writ petition is concerned in view of the statutory remedy of appeal being provided under the Act, the learned Senior counsel submits that the existence of other adequate legal remedy will not per se act a bar for issuance of a writ of certiorari and in an appropriate case it may issue prerogative writs. The duty of the superior Court to issue a writ of certiorari to correct the errors of an inferior court or tribunal called upon to exercise judicial or quasi-judicial functions and not to Vs Assistant Commissioner, reported in AIR 1967 SC 1401; State of U.P. Vs. Mohd. Nooh, reported in 1958 SCR 595; Bhopal Sugar of it’s powers to invoke the prerogative writs notwithstanding the reported in (1998) 8 SCC 1; Union of India Vs. Parashotam Dass, reported in 2023 SCCOnline SC 314; State of Tripura Vs. Monoranjan Chakraborty, reported in (2001) 10 SCC 740; Assistant Commissioner petition be allowed. The impugned order-in-original be interfered with and set aside interfering with the demand of service tax as well as the imposition of penalty imposed on the writ petitioner.

Mr. S.C Keyal, learned counsel appearing for the Respondents has strongly disputed the contentions made on behalf of the writ petitioner. On the question of maintainability of the writ petition, it is submitted that where there is elaborately prescribed statutory

Sanjib Das Vs. Union of India, reported in 2022 0 Supreme (Gau) 284;

Sunil Gulati Vs. Additional Commissioner, CGST, Delhi South Commissioner &Anr. [W.P(C) No. 4383/2025];

M/S Vishwanath Traders Vs. Union of India and Ors [SLP(C) No. 15594/2023];

Union of India and Ors. Vs. Coastal Container Transpiration Association impugned order in original and order-in-appeal which is the issue in the present proceedings has been assailed primarily on two grounds.

The first ground urged before this Court by the writ petitioner assessee is that there were no dues of service tax payable by the petitioner in respect of the services rendered.

Upon a perusal of the pleadings available before the Court, it is seen that the service tax liability of services by the petitioner was stated that the contracts undertaken by the Petitioner were pertaining to works and the same was exempted from payment of service tax under the Mega Exemption Notification No. 25/2012 S.T. dated 20.06.2012 w.e.f. 01.07.2012 as amended.

In this context a reference to the Notification No. 25/2012- Service Tax dated 20.06.2012 as amended, in exercise of powers conferred on it by Sub-section (1) of Section 93 of the Finance Act, 1994 notified certain exemptions of the taxable services from the whole of the service tax leviable thereon under Section 66B of the said Act.

The first limb of argument by the learned Senior counsel for the petitioner before this Court is imposition of tax on solely on the basis of data available in Form 26AS which is obtained from the Income Tax Department. In Chatturam Holiram Ltd (Supra) , the Apex Court held that there are three stages in the imposition of tax. There has to be a declaration of liability, which is the part of the statute which determines what persons in respect of what property are liable to pay the tax. Then there has to the assessment. The liability to pay taxes does not depend on the assessment which has already been fixed by the statute. But the assessment specifies the exact sum which a person is found to be liable to pay and finally the modes of recovery of taxes which are assessed in the event the assessee refuses to pay voluntarily. The relevant paragraphs of this Judgments are extracted below: “As has been pointed out by the Federal Court in Chatturam Vs. Commissioner of Income-tax, Bihar [(1947) F.C.R. 116 at 126; 15 ITR 302, at 302] (quoting from the judgment of Lord Dunedin in Whitney Vs. Commissioners of Inland Revenue [(1926) A.C. 37] ‘there are three stages in the imposition of a tax. There is the declaration of liability, that is the part of the statute which determines what persons in respect of what property are liable. Next, there is the assessment. Liability does not depend on assessment. That, ex-hypothesi, has already been fixed. But assessment particularses the exact sum which a person liable has to pay. Lastly, come the methods of recovery, if the person taxed does not voluntarily pay”

Again in A.V Fernandez Vs. State of Kerala, reported in (1957) 8 STC 561, the Apex Court held that the three stages in the imposition of tax which are laid down predicate, in the first instance, a declaration of liability as the starting point. If there is a liability to pay tax which is imposed in terms of the taxing statute, then the provisions with regard to the assessment of such liability is to be followed. If there is no liability to tax there cannot be any assessment either. Sales or purchases in respect of which there is no liability to tax imposed by the statute cannot at all be included in the calculation of turnover for the purpose of assessment and the exact

Therefore, under such circumstances, this Court is of the considered view that the determination made by the respondent authorities by issuing the demand cum show cause notice and the confirmation in the impugned Order-in-appeal is contrary to the provisions of the Act and the law declared by the Apex Court as well as by the High Court. The impugned order-in-appeal is therefore is bad and the same is liable to set aside.

Coming to the question of the invocation of the extended period of limitation, it is necessary to refer to the provisions of Section 73 of the Finance Act, the same is extracted below: Section 73: - Recovery of Service tax not levied or paid or short- levied or short-paid or erroneously refunded.- 73 (1) where any service tax has not been levied or paid or short -levied or short-paid or erroneously refunded, the Central Excise Officer may, within eighteen months from the relevant date serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or the persons to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; Provided that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of- (a) fraud; or (b) collusion; or (c) willful misstatement ;or (d) suppression of facts; or (e) contravention of any of the provisions of this chapter or of the rules made there under with intent to evade payment of service tax, by the person chargeable with the service tax or his agent the provisions of this sub-section shall have effect, as if for the words eighteen months, the words “five years” had been substituted. Explanation-where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of eighteen months or five years as the case may be. (1A) Notwithstanding anything contained in sub-section (1), the Central Excise Officer may serve, subsequent to any notice or notices served under that sub-section, a statement, containing the details of service tax not levied or paid or short levied or short paid or erroneously refunded for the subsequent period, on the person chargeable to service tax, then, service of such statement shall be deemed to be service of notice on such person, subject to the condition that the grounds relied upon for the subsequent period are same as are mentioned in the earlier notices (2) The Central Excise Officer shall after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of service tax due from, or erroneously refunded to, such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (3) ...................

A perusal of the Section 73 of the Finance Act reveals that the extended period in respect of recovery of service tax not levied or paid or short levied or short paid or erroneously refunded can be invoked only when any or more of the conditions prescribed under the proviso to the said section is present. Under the proviso to the said section, there are five situations when the extended period of limitation can be invoked. These are: (a) Fraud; or (b) Collusion; or (c) Willful misstatement; or (d) Suppression of facts; or (e) Contravention of any of the provisions of this Chapter or of the rules made there under with intent to evade payment of service tax.

It is only in the event that any or more of these conditions are found to be applicable in the facts and circumstances of the case that the provisions for extension of limitation under Section 73 can be invoked. In the event, it is invoked a notice has to be issued within a period of 18 months from the relevant date on the person chargeable with service tax.

In this context, it is necessary to refer to the case laws cited before this Court. In Continental Foundation Joint Venture Holding (Supra), the extended period of limitation under Section 11A of the Central Excise and Salt Act, 1944 was under consideration. The Apex Court held that mere omission to give correct information did not constitute suppression unless that omission was made willfully in order to evade duty. The Apex Court held that suppression would mean failure to disclose full and true information with the intent to evade payment of duty. When the facts are known to both the parties, omissions by one party would not constitute suppression. It was held that an incorrect statement cannot be equated with a willful mis-statement. The latter implies making of an incorrect statement with the knowledge that the statement made was not correct. The relevant paragraphs of the Judgment are extracted below:

The expression “suppression” has been used in the proviso to Section 11-A of the Act accompanied by very strong words as “fraud” or “collusion” and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop (sic evade) the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11-A the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equated with a wilful misstatement. The latter implies making of an incorrect statement with the knowledge that the statement was not correct.

In CEE Vs Chemphar Drugs & Liniments (Supra), while interpreting provisions of Section 11A of the Act of 1944, the Apex Court held that something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise is required, before it is saddled with any liability, before (sic beyond) the period of six months. Whether in a particular set of facts and circumstances there was any fraud or collusion or willful misstatement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case.

In Cosmic Dye Chemical (Supra), the Apex Court again while examining Section 11 A of the Act of 1944 held that the emphasis is on the requisite intent i.e the intent to evade payment of duty which is built into the very works of section. The Apex Court held that even misstatement or suppression of fact are clearly qualified by the words “willful” preceeding the words “misstatement or suppression of facts” which means with intent to evade duty. The Apex Court therefore held that it will not be correct to say that there can be a suppression or misstatement of fact, which is not willful and yet constitutes a permissible ground for the purpose of the provisio to Section 11-A. Misstatement or suppression of fact must be willful. The relevant paragraph is extracted below:

The Apex Court in TELCO Vs. Assistant Commissioner, reported document by the Apex Court were as under :

In Godrej Sara Lee Ltd (Supra), the Apex Court held that mere availability of an alternative remedy of appeal or revision, which the party invoking the juri iction of the High Court under Article 226 has not pursued, would not oust the juri iction of the High Court and render a writ petition “not maintainable”. The Court made it clear that availability of an alternative remedy does not operate as an absolute bar to the “maintainability” of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. The Apex Court in further held that dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper.The Apex Court further held that where the controversy is a purely legal one and it does not involve

Again in Union of India Vs. Parashtom Dass, reported in 2023 SCCOnline SC 314, the Apex Court held that the provision of Article 226 of the Constitution forming part of the basic structure of the Constitution and that the self-restraint of the High Court under Article 226 of the Constitution is distinct from putting an embargo on the High Court in exercising this juri iction under Article 226 of the Constitution while judicially reviewing a decision arising from an order of the Tribunal. The relevant Paragraphs are extracted below: “A High Court Judge has immense experience. In any exercise of juri iction under Article 226, the High Courts are quite conscious of the scope and nature of juri iction, which in turn would depend on the nature of the matter. We believe that there is no necessity to carve out certain case from the scope of judicial review under Article 226 of the Constitution, as was suggested by the learned Additional Solicitor General. It was enunciated in the Constitution Bench Judgment in S.N. Mukherjee case that even in respect of courts-martial, the High Court could grant appropriate relief in a certain scenario as envisaged therein, i.e., “if the said proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suffer from a juri ictional error or any error of law apparent on the face of the record.” There appears to be a misconception that the High Court would re- appreciate the evidence, thereby making it into a second appeal, etc. WE believe that the High Courts are quite conscious of the parameters within which the juri iction is to be exercised, and those principles, in turn, are also already enunciated by this Court.”

From a careful analysis of the judgments discussed above, it is clear that the writ Court can interfere any arbitrary action notwithstanding the availability of alternative remedy when the authorities acts within juri iction or in exercise of juri iction or there is a procedural irregularity or were the order is high handed and is palpably illegal order in as much the same would amount to violation of Article 14 of the Constitution of India.

Although ordinarily it is the law enunciated by this court as well as by the Apex Court that an aggrieved assessee ought to avail of statutory remedies ascribed or prescribed under the statute, there is no quarrel on this principle of law. The GST is a complete code in itself providing for filing of returns, assessments, recovery as well as for appeals before the appropriate appellate authority. The facts involved in the present proceedings are however peculiar in essence that this show cause notice and the consequential confirmation of demand by the impugned order in original was a proceeding initiated by the respondent authority after invoking the extended period of limitation under Section 73(1). Therefore, in an ordinary course of proceedings seeking recovery of tax demanded, the normal course would be to avail of the statutory remedies. However, before the authorities invoke their juri iction under section 73(1), it is the mandate of the statute that the authorities must come to a specific

It is a trite law that greater the power prescribed under the statute greater will be the responsibility on the authorities on whom it has been bestowed to ensure that no infraction of the provisions of the Act and the Rules are made and no injustice is caused to the assessee during the process of demand and recovery. This Court while examining the facts and circumstances in minute detail and the exposition of the law laid down by various Courts including this Court as well as the Apex court of the country has held that for the Revenue authorities to invoke the powers under section 73(1), there must be a conclusive finding by the Revenue authorities that the petitioner assessee under the facts and circumstances, had wilfully and deliberately evaded or neglected to pay the GST. This conclusion by the Revenue authorities is not apparent and discernible from a plain reading of the impugned order in original. It is not a case that the petitioner assessee never responded to the notices. It is not a case that the documents which were called for required to be submitted were not furnished. The ST-3 Returns filed by the petitioner assessee were available in the records of the revenue authorities and which would have given a complete picture of the services rendered by petitioner assessee and/or whether such services come within the ambit of service taxes or are excluded by any circular or notification issue. However, there is no finding by the revenue authorities as to why this aspect was not examined. There is no conclusion of the revenue authorities in this aspect of the matter as is evident from the impugned order in original.

Therefore, under such circumstances the invocation of extended period of limitation under section 73(1) has been held by this Court to be invalid and contrary to the prescriptions mandated by law. This being a position, it is a clear case of assumption of juri iction by the Revenue authorities where the statutes did not confer them such juri iction by default. A Writ Court while exercising its powers under Article 226 can certainly examine whether the Tribunal or the quasi-judicial authority by exercising its juri iction mandated under the statute has fulfilled the necessary pre-conditions prescribed by the statute itself.

In the facts and circumstances of the case, this Court is of the considered view that such preconditions mandated by law under section 73(1) having not been fulfilled by the Revenue authorities, their assumption of juri iction under section 73(1) of the GST Act was completely unwarranted and revenue authorities could not have assumed the juri iction under section 73(1) unless these pre- conditions mandatedand a conclusion thereto has been arrived at by the Revenue authorities before assumption of such juri iction. It is under these circumstances that notwithstanding the availability of statutory alternative remedy, this Court considers it an appropriate case to invoke its juri iction under Article 226 to interfere with the impugned order in original and to set aside and quash the order-in- original. Under these circumstances, the case laws referred to by the respondents will have no bearing in the facts and circumstances of the present proceedings. There is also no quarrel with the general proposition of law that in the face of statutory alternative remedy being available, a Writ Court would ordinarily not invoke its power of issuance of prerogative Writs. Since this Court has held that the levy of service tax on the petitioner by extending the limitation is contrary to the provisions of law, the natural corollary that would follow is that the levy of all penalty, surcharge and interest are also not leviable on the petitioner, this Court therefore issues a writ of certiorari setting aside the setting aside the impugned demand cum show cause notice; impugned order in original and order-in-appeal and it is ordered accordingly.

Therefore the writ petition stands accordingly allowed. However no order as to cost. Pending I.A.s are also dismissed and the interim order if any stands merged.