JUDGMENT : SOUMITRA SAIKIA, J. This writ petition is filed by the petitioner who is the proprietor of the Proprietorship firms namely, M/S N.K Sharma and M/S Sidharth Enterprise. The petitioner is registered under the Service Tax net vide Service Tax Code (Registration No.) AIIPS4609P. The petitioner is engaged in the business of providing transportation service and supply of tangible goods. For the Financial Year 2014-15 (October, 2014 to March, 2015) to Financial Year 2017-18 (upto June, 2017) for services rendered by the petitioner, a summons dated 10.05.2018 was issued by Superintendent, Anti-Evasion, Goods & Services Tax, Dibrugarh Commissionarate under Section 14 of the Central Excise Act 1944 read with Section 80 of the Finance Act, 1994. The petitioner was asked to appear in person or through authorized representatives on 30.05.2018 for recording statements and submission of certain documents such as copies of Form 26AS, balance-sheet with profit and loss for the period 2012-13 to 2016-17, copies of contract agreements, work orders etc. The petitioner initially sought for extension of time to submit the relevant papers and documents sought for and eventually submitted all its documents in support of his case. Thereafter, a show cause notice dated 31.12.2020 was issued by the competent authority which although initially stated to have been not received by the petitioner but upon personal appearance before the competent authority, copies thereof were served by the respondent authorities. It was alleged in the show cause notice that the petitioner had willfully suppressed material facts providing taxable services to service receiver during the period from 2014-15 to 2017-18 with an intent to evade payment of service tax amounting to Rs.1,44,82,015/- in contravention of the provisions of Section 66B and 68 of the Finance Act, 1994 read with Rule 6 of the Service Tax Rules, 1994. 2. It was alleged that on scrutiny of Form 26AS collected from the Income Tax Department, TDS was seen to be deducted by the various service recipients and since the petitioner did not submit any documents regarding the services provided, there is a reason to believe that the income amount on which the petitioner paid income tax collected against the services provided by him, the petitioner had rendered taxable services amounting to Rs. 1,66,86,568/- and as such the service tax on the value of such services provided amounting to Rs. 1,66,86,568/- and as such the service tax on the value of such services provided amounting to Rs. 1,44,82,015/- was required to be paid by the petitioner to the government exchequer and as the same was willfully not paid and the information thereto was also suppressed by the writ petitioner, the show cause notice was issued by invoking the extended period of time under Section 73(1) for recovery of the amount mentioned in the show cause along with the interest at the appropriate rate under Section 75 of the Finance Act, 1994. Thirty (30) days time was granted from the date of receipt of the show cause to the writ petitioner to show cause as to why the action contemplated in the show cause notice will not be initiated. The petitioner subsequently appeared before the respondent authority and submitted that no claim under Service Tax is liable to be paid by the petitioner. The petitioner being a service provider, the service tax liability for services rendered for transportation of goods by road provided to Indian Oil Corporation was discharged by the IOC under the reverse charge mechanism. The service liability for services provided to ONGC has also been duly paid by the petitioner and the challans showing the payment of service tax to the tune of Rs. 38,60,514/- were also produced before the respondent authorities. It was also submitted that an amount of Rs.41,87,500/- reflected in the gross receipt as per Form 26AS was related to sale of flat and as such the said amount was not related to service tax and relevant sale agreement and payment particulars were also submitted as proof thereof. 3. However, the respondent authorities did not consider these submissions of the petitioner and vide the impugned order-in-original No. V(15)104/ADJ/ST/COMMR/DIB/2020/330-334 dated 23.05.2022 had assessed an amount of Rs. 1,17,27,034/- as service tax payable by the petitioner. The demand of service tax raised was confirmed for the Financial Year 2014-15 (Oct-March) to 2017-18 (April-June) in terms of Section 73(1) and 68 of the Finance Act 1994 and Rule 6 of the Service Tax Rules, 1994 read with Section 174(2) of the CGST Act, 2017 and also imposed an equal amount of penalty of Rs. 1,17,27,034/- under Section 78 besides imposing penalty of Rs. 10,000/- under Section 20 of the Act. 1,17,27,034/- under Section 78 besides imposing penalty of Rs. 10,000/- under Section 20 of the Act. Being aggrieved, the present writ petition has been filed putting a challenge to impugned order-in- original No. V(15)104/ADJ/ST/COMMR/DIB/2020/330-334 dated 23.05.2022 passed by the Additional Commissioner, Goods and Services Tax, Aizawl (respondent No. 5). 4. Opening the arguments on behalf of the writ petitioner, Dr. Ashok Saraf, learned Senior Counsel has urged before the Court submits that pursuant to receipt of summon preceeding the show cause notice, all the necessary documents were furnished before the respondent authorities. The documents pertaining to the relevant year notwithstanding they were almost six (6) years old, the same were submitted before the authorities in support of the claims of the petitioner. Thereafter, further documents were sought for which again were placed before the authorities concerned. Upon these documents being furnished, the petitioner did not receive any communication from the respondents and as such the petitioner was under a bona fide belief that the respondent authorities were satisfied with the documents furnished by the petitioner and the matter was ultimately laid to rest. However, the petitioner was surprised thereafter to receive a notice from the Additional Commissioner, Goods and Services Tax, Aizawl namely, respondent No. 5 calling upon the petitioner for personal hearing to be scheduled on 14.03.2022. On the said date, the petitioner appeared before the said authority and informed that the petitioner did not receive any show cause notice. On such information being furnished before the respondent authority, a copy of the demand cum show cause notice dated 31.12.2020 was issued by the respondent No. 5. As such the show cause notice dated 31.12.2020 was essentially served on the writ petitioner only on 14.03.2022. Therefore, the conclusion of the respondent authorities in the impugned order that inspite of repeated notices, there was no response received from the writ petitioner on the face of it is contrary to the actual facts. 5. The learned Senior counsel for the petitioner further submits that the entire proceedings were conducted on the basis of information available on Form 26AS collected from the Income Tax Department. 5. The learned Senior counsel for the petitioner further submits that the entire proceedings were conducted on the basis of information available on Form 26AS collected from the Income Tax Department. From the said Form 26AS, the Department proceeded that in so far as the TDS shown to have been deducted by the various service recipients, the writ petitioner therefore having not submitted any documents regarding the services provided by him, the respondent authorities perfunctorily came to the conclusion that the writ petitioner had rendered taxable services amounting to Rs. 10,66,86,568/- and on such value of services, service tax amounting to Rs. 1,44,82,015/- was required to be paid by the petitioner to the Government exchequer which they allegedly failed to pay and this information was also suppressed and therefore the amount was to be recovered by the demand cum show cause notice under proviso to Section 73(1) of the Finance Act, 1994 by invoking the extended period of limitation along with interest at appropriate rate under Section 75 of the Finance Act, 1994. The petitioner was therefore called upon to show cause as to why the service tax amounting to Rs. 1,44,82,015/- for the Financial year 2014-15 (October, 2014 to March, 2015) to Financial Year 2017-18 (upto June 2017) should not be demanded for recovered from the writ petitioner under the appropriate sections mentioned in the show cause notice. 6. The learned Senior counsel for the petitioner strenuously submits that the very basis of issuance of the demand cum show cause notice was on a mistaken belief of the department that any service tax is due from the writ petitioner whereas for the services rendered by the writ petitioner in respect of IOC, Marketing Division IOC and ONGC, no service tax was outstanding from the petitioner and in respect of sale of flat the amounts received were not at all related to service tax. The learned Senior counsel for the petitioner strenuously submits that as per notice for personal hearing, the authorized representative of the petitioner appeared before the Additional Commissioner, Goods & Services Tax, Aizwal on 23.03.2022 through online mode and submitted that there was no service tax liability pending to be discharged by the petitioner. The learned Senior counsel for the petitioner strenuously submits that as per notice for personal hearing, the authorized representative of the petitioner appeared before the Additional Commissioner, Goods & Services Tax, Aizwal on 23.03.2022 through online mode and submitted that there was no service tax liability pending to be discharged by the petitioner. The service tax liability for services of transportation of goods by road provided to the Indian Oil Corporation Limited by the petitioner was discharged by Indian Oil Corporation Limited as a recipient of services under reverse charge mechanism as per Notification No.30/2012-St dated 20.06.2012. Further, it was also submitted that the service tax liability for the services provided to ONGC was also duly paid and 74 numbers of challans showing payment of service tax to the tune of Rs. 38,60,514/- was also produced as a proof thereof. It was further submitted that an amount to the tune of Rs.41,87,500/- reflected in the gross receipt as per Form 26AS was related to sale of flat and as such, the said amount was not related to service tax and relevant sale agreement and payment particulars were also submitted as a proof thereof. The representative of the petitioner once again submitted all the relevant documents as sought for by the authorities, both physical copies and scanned copies vide mail dated 23.03.2022. 7. It is submitted that the petitioner thereafter vide letter dated 15.05.2022 addressed to the Superintendent (A/E), Central Goods & Service Tax, Aizawl informed that the petitioner had already paid the applicable amount of service tax on taxable services provided by him and the challans for such payments were provided to the authorities. It was stated in the said letter that the petitioner rendered two types of services. As regards services provided to the ONGC, service tax was applicable and payable by the petitioner, whereas with regards to services provided to the IOC Ltd. service charge was payable by the service recipient on reverse charge basis. It was also stated in the said letter that only taxable services provided by the petitioner wherein the petitioner is liable to make payment of service tax was the services provided to ONGC and ONGC releases payment only after service tax is paid and service tax challan is presented before them. It was also stated in the said letter that only taxable services provided by the petitioner wherein the petitioner is liable to make payment of service tax was the services provided to ONGC and ONGC releases payment only after service tax is paid and service tax challan is presented before them. It was stated that as per the notice issued, department has calculated service tax liability on the entire amount of services provided by the petitioner which is not correct. The petitioner also annexed a table of calculation of service tax wherein it reflected that the petitioner has made payment to the tune of Rs. 38,60,514/- in respect of service tax, which was substantiated by challans. This goes to mean that the petitioner made some excess payment of service tax leave alone any short payment as alleged by the respondent Department. 8. The learned Senior counsel submits that the Additional Commissioner, Goods & Services Tax, Aizawl however did not consider any of the submissions of the Petitioner and vide the impugned Order-in-Original dated 23.05.2022 assessed an amount of Rs. 1,17,27,034/- as service tax payable by the Petitioner. In the said Order-in-Original dated 23.05.2022, the Additional Commissioner, Goods & Services Tax, Aizawl so confirmed the demand of service tax of the said amount of Rs. 1,17,27,034/- for the Financial Year 2014- 15 (Oct-March) to 2017-18 (April-June) in terms of Section 73(1) and 68 of the Finance Act, 1994 and Rule 6 of ST Rules, 1994 read with Section 174(2) of CGST Act, 2017 and also imposed an equal amount of penalty of Rs. 1,17,27,034/- under Section 78 besides imposing penalty of Rs. 10,000/- under Section 20 of the Act. While passing the said impugned Order-in-Original dated 23.05.2022, the Additional Commissioner, Goods & Services Tax, Aizawl stated that the Noticee failed to reply to the show cause Notice dated 31.12.2020 within stipulated time and as such, it could not be ascertained whether the services provided by the petitioner was exempted from payment of service tax holding that the services provided by the Petitioner would fall under the definition of service, the Additional Commissioner, Goods & Services Tax, Aizawl only on the basis of Form 26 AS, came to a conclusion that the Petitioner was required to pay to the Government exchequer a sum of Rs. 1,17,27,034/- as short paid service tax. 1,17,27,034/- as short paid service tax. As regard the invocation of extended period of limitation, it was alleged by the Additional Commissioner, Goods & Services Tax, Aizawl that the Noticee willfully did not mention his Service Tax liability in their periodic ST-3 Return and did not discharge his service tax liability to the Government exchequer with malafide intention to evade payment of service tax. It was also stated that the Noticee i.e. the petitioner deliberately suppressed the material facts from the department with the intent to evade payment of tax and therefore, extended period of limitation of five years as envisaged under the proviso of sub-section (1) of section 73 of the Finance Act, 1994 was invokable. Therefore by the aforesaid impugned Order-in-Original dated 23.05.2022, the Respondent No.5 confirmed the demand of service tax amounting to Rs. 17,27,034/- and imposed an equal amount of penalty of Rs. 1,17,27,034/- under Section 78 besides imposing penalty of Rs. 10,000/- under Section 20 of the Act. 9. It is therefore submitted that no service tax is due from the petitioner further services rendered and these information were already supplied to the respondent No. 5 by way of the writ petitioner both pursuant to issuance of summons as well as pursuant to issuance of notice of demand cum show cause notice and also during the personal hearing. 10. It is strenuously urged by the learned senior counsel that there was absolutely no application of mind by the respondent authorities nor did they consider the materials which were placed before the authorities concerned before passing the impugned order in original imposing the demand of service tax and penalty. It is submitted that these information being placed before the authorities concerned pursuant to the summons issued itself, there was no case for suppression made out against the petitioner as sought to be alleged against the petitioner and thereby issuing the demand cum show cause notice by extending the prescribed period of time under Section 73 of the CGST Act. 11. The learned Senior counsel for the petitioner submits that for imposition of tax, there must be a declaration of liability under the statute and which the assessee is required to comply with. It is submitted that tax cannot be imposed on an analogy and inferences based on Form 26AS statement received from the Income Tax Department. 11. The learned Senior counsel for the petitioner submits that for imposition of tax, there must be a declaration of liability under the statute and which the assessee is required to comply with. It is submitted that tax cannot be imposed on an analogy and inferences based on Form 26AS statement received from the Income Tax Department. In support of his contention, the learned Senior Counsel has pressed into service Judgment of the Apex Court rendered in Chatturam Horilram Ltd. Vs. Commissioner of Income Tax, reported in 1955 (2) SCR 290 . It is submitted that in the said Judgment, the Apex Court by referring to a Judgment of the Federal Court held that there are three stages of imposition of taxes. There must be a declaration of liability which is the part of the statute which determines the liability in respect of the assessee, next there must be an assessment. The liability does not depend on the assessment it is already fixed under the statute but the assessment particularizes the exact sum which a person liable is required to pay and lastly there must be modes of recovery of tax, in the event the assessee who is taxed does not pay voluntarily. 12. The learned Senior counsel for the petitioner also presses into service the Judgment of the Apex Court rendered in A.V Fernandez Vs. State of Kerala , reported in (1957) 8 STC 561 . It is submitted that before any assessment is made levying any tax there must be a liability to tax. If there is no liability to tax the question of making an assessment in respect of the same does not arise. In the present case, there was no liability to pay the taxes inasmuch as either the services liability to pay tax was on the recipient of the services on reverse charge basis and whichever tax was payable in respect of services rendered to ONGC the same was paid by the petitioner and thereby the adjudicating authority overstepped its jurisdiction in passing the order by levying tax on such services purely on analogy and inferences which is not permissible in law. 13. The learned Senior counsel submits that the Judgments of the Apex Court cited are subsequently followed in Commissioner of Income Tax Vs. Provident Investment Company Ltd. reported in (1957) 32 ITR 190 . 13. The learned Senior counsel submits that the Judgments of the Apex Court cited are subsequently followed in Commissioner of Income Tax Vs. Provident Investment Company Ltd. reported in (1957) 32 ITR 190 . The learned Senior counsel also presses into service Judgments in support of his contention by referring to Venkateswara Stainless Steel and Wire Industries Vs. Union of India , 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. 14. 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. 15. The learned Senior Counsel for the petitioner also pressed into service Judgment rendered in Luit Developers Private Limited Vs. It is submitted that the order has attained finality as no appeal has been preferred against the said Judgment. 15. 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 Tax Act. The Tribunal held that Form 26AS cannot be used to determine service tax liability unless there is any evidence shown that it was due to a taxable service. The Tribunal also came to the conclusion that there was no mala fide intention and therefore extended period of limitation cannot be invoked on the ground and service tax, interest and penalty was not sustainable and the same was accordingly set aside. 16. 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. 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 jurisdiction, and the same is liable to be set aside and quashed. 17. 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 available in Form 26AS statement of the Income Tax, has levied the service tax on the entire amount received, on pure inferences and analogy which is not permissible in law, and thereby the said order passed by the adjudicating authority is absolutely illegal, without jurisdiction and the same is liable to be set aside and quashed. 18. 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. 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 – (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. 19. 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. 20. 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 taxes are made willfully in order to evade payment of tax. In support of his contentions, the learned Senior counsel has referred to the Judgment of the Apex Court rendered in Continental Foundation Joint Venture Holding Vs. CCE, reported in (2007) 10 SCC 334. It is submitted that the Apex Court in the said Judgment held that mere omission to give correct information did not constitute suppression unless that omission was made willfully in order to evade duty. Suppression would mean failure to disclose full and true information with the intent to evade payment of duty. CCE, reported in (2007) 10 SCC 334. It is submitted that the Apex Court in the said Judgment held that mere omission to give correct information did not constitute suppression unless that omission was made willfully in order to evade duty. 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, omission by one party would not constitute suppression. 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. 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. 21. Referring to the Judgment of Apex Court rendered in CCE Vs. Chemphar Drugs & Liniments, reported in (1989) 2 SCC 127 , the learned Senior Counsel, Dr Saraf, submits that the Apex Court while interpreting the provisions of Section 11A of the Central Sales Tax Act, 1944 held that something positive other than mere inaction or failure on the part of the manufacture or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability of invoking the extended period of limitation. 22. Reliance is also placed upon the Judgment of the Apex Court rendered in Cosmic Dye Chemical Vs. CCE. , reported in (1995) 6 SCC 117 , it is submitted that the Apex Court therein held that the words “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 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. 23. 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 the fact as to whether there was any suppression, mis-statement, fraud, collusion, or contravention of any of the provisions if the Act and the rules with the intent to evade payment of any tax, the Adjudicating Authority simply on the basis of the tax behavior has invoked the extended period of limitation without fulfilling the preconditions laid down in proviso to Section 73(1) of the Act and thereby the impugned show cause notice is clearly barred by limitation and consequently the impugned order in original as well as the show cause notice are liable to be set aside and quashed. The learned Senior counsel therefore submits that the order-in-original has been passed by invoking extended period of limitation of five (5) years without providing any tangible evidence to show that any material fact or information was willfully suppressed from the Revenue with the intent to evade payment of any tax and thereby the issuance of the show cause notice itself is barred by the limitation and consequently the impugned show cause as well the order in original are liable to be set aside and/or quashed. 24. It is further submitted by the learned Senior counsel that if an authority while acting within its jurisdiction makes an error of law which is revealed on the face of its recorded determination, then the Court, in the exercise of its supervisory function, may correct the error unless there is some provision preventing a review by a Court of law. In support of his contentions, the learned Senior counsel refers to the Judgment rendered in Anisminic Ltd. Vs. Foreign Compensation Commission and another , reported in (1969) 2 WLR 163 . In support of his contentions, the learned Senior counsel refers to the Judgment rendered in Anisminic Ltd. Vs. Foreign Compensation Commission and another , reported in (1969) 2 WLR 163 . Referring to the said Judgment, it is submitted that lack of jurisdiction may also arise if the authority in the intervening stage, while engaged on a proper enquiry, departs from the roots of natural Justice, or ask itself a wrong questions or takes into accounts matters which it was not directed to take into account. In such a situation it would amounts to a steps outside it jurisdiction. 25. The further limb of argument of the learned Senior Counsel for the petitioner is that the levy of interest in the instant case is absolutely illegal and without jurisdiction inasmuch as where service tax itself is not payable by the petitioner as the same has been levied illegally therefore the interest levied in the instant case is also liable to be set aside and quashed. It is submitted that in so far as the levy of the penalty is concerned, it is a settled law that in order to justify imposition of penalty the authority concerned must find out not only that there has been a default but should also consider the question whether there were good and sufficient reasons for the default and only when such grounds are available the authorities can proceed to impose penalty. Referring to the finding of the Adjudicating authority, it is submitted that it clear that the adjudicating authority has imposed penalty most mechanically without considering as to whether the assessee had acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest or acted in conscious disregard of its obligation. In support of his contention, the learned Senior counsel refers to the Judgments rendered in Hindustan Steel Ltd. Vs State of Orissa , reported in (1972) 83 ITR 26 ; B.D Khaitan Vs. Income Tax Officer , reported in (1978) 113 ITR 556 (Cal) and Brajalal Banik Vs. State of Tripura and Ors , reported in (1989) 2 GLR 220. In support of his contention, the learned Senior counsel refers to the Judgments rendered in Hindustan Steel Ltd. Vs State of Orissa , reported in (1972) 83 ITR 26 ; B.D Khaitan Vs. Income Tax Officer , reported in (1978) 113 ITR 556 (Cal) and Brajalal Banik Vs. State of Tripura and Ors , reported in (1989) 2 GLR 220. Referring to the Judgments, the learned Senior Counsel submits that the adjudicating authority has not applied its mind to the facts and circumstances of the case but has acted mechanically while imposing penalty and the order does not contain any reason legally sustainable whatsoever as to why the officer concerned had decided to levy penalty and also why he has levied the maximum amount of penalty. It is submitted that the maximum amount of penalty cannot be imposed in all the cases inasmuch as the authority has to decide the relevant factors such as the period of delay conduct of dealer and such other considerations and the levy of maximum penalty without stating any reasons may not be sustainable. It is therefore submitted that the imposition of interest and penalty in the instant case is absolutely illegal without jurisdiction and thereby the same is liable to 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. 26. 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 relegate the petitioner to other legal remedies available to him and a Superior Court in a proper case exercise its jurisdiction in favour of a petitioner who has allowed the time to appeal to expire or has not preferred his appeal. It cannot then be laid down as an inflexible rule that the superior Court must deny the writ when an inferior Court or tribunal by discarding the principles of natural justice and all accepted principle of procedure arrive at a conclusion which shocks the sense of justice and fair play. 27. Referring to the Judgment of this Court rendered in Hardeodas Jagannath Vs. Income Tax Officer , reported in (1961) 47 ITR 56, it is submitted that there is no inflexible rule that the existence of an alternative remedy is a bar to the issue of a writ of certiorari. The issue of various writs or directions is in the discretion of the Court and the Court while exercising its jurisdiction may take into consideration the existence of an alternative remedy as a mater of policy, but the existence of an alternative remedy and it is not per so as bar to the issue of a writ of certiorari. It is submitted by the learned Senior counsel that this position laid down by the Assam High Court has also summarised by the Apex Court in the case of Hari Vishnu Kamath Vs. Ahmed Ishaque , reported in AIR 1955 SC 233 . 28. Similar views have been laid down by the Apex Court in TELCO Vs. Assistant Commissioner , reported in AIR 1967 SC 1401 ; State of U.P. Vs. Mohd. Nooh , reported in 1958 SCR 595 ; Bhopal Sugar Industries Vs. D.P. Dubey , reported in AIR 1967 SC 549 and Altafur Rahman Vs. Union of India , reported in (1986) 1 GLR 14 . 29. The learned Senior Counsel submits that a very recent decision of the Apex Court consistently has held that exhaustion of alternative remedy is not an inflexible rule. Where the Court finds that there has been violation of natural justice or the invocation of the jurisdiction itself is contrary to the provision of law, a writ Court is not denuded of it’s powers to invoke the prerogative writs notwithstanding the availability of statutory alternative remedy. 30. The learned Senior counsel for the petitioner further fortifies his submissions by referring to the Judgments of the Apex Court rendered in Whirlpool Corporation Vs. Registration of Trade Mark , reported in (1998) 8 SCC 1 ; Union of India Vs. Parashotam Dass , reported in 2023 SCC Online SC 314; State of Tripura Vs. 30. The learned Senior counsel for the petitioner further fortifies his submissions by referring to the Judgments of the Apex Court rendered in Whirlpool Corporation Vs. Registration of Trade Mark , reported in (1998) 8 SCC 1 ; Union of India Vs. Parashotam Dass , reported in 2023 SCC Online SC 314; State of Tripura Vs. Monoranjan Chakraborty , reported in (2001) 10 SCC 740 ; Assistant Commissioner of State Taxes Vs. Commercial Steel Co. Ltd. , reported in 2021 SCC Online SC 884 and Godrej Sara Lee Ltd. Vs. Com. Assessing Officer , reported in 2023 SCC Online SC 9695. 31. The learned Senior counsel therefore submits that the writ 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. 32. 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 provisions providing for alternative remedy, the petitioner assessee should not be permitted to invoke the writ jurisdiction without first availing of the statutory prescribed remedies. The GST is a complete code in itself and elaborate provisions are prescribed for ventilating grievances of the assesses who are aggrieved by any orders passed by the GST authorities. Therefore the writ petition should be dismissed and the petitioner should be relegated to avail of the statutory alternative remedies prescribed. Unless the petitioner had availed of these remedies, there is no scope for entertaining the instant writ petition. Therefore, since the petitioners did not avail statutory remedy, the petition should be dismissed on this limited ground and the parties be relegated to the avail of the statutory remedy prescribed. In support of his contentions, the learned counsel for the respondent relies upon the following Judgments: 1. GNRC Limited Vs. Union of India , reported in 2024 0 Supreme (Gau) 973; 2. PHR Invent Educational Society Vs. UCO Bank and Ors , reported in 2024 0 Supreme SC 333 ; 3. Brahmaputra Television Network Vs. Union of India , reported in 2024 0 Supreme (Gau) 855 4. M/S Sailaja Commercial Construction Pvt. Ltd. Vs Union of India & Ors, (W.A. No. 188/2022) 5. Bekem Infra Projects Ltd Vs. PHR Invent Educational Society Vs. UCO Bank and Ors , reported in 2024 0 Supreme SC 333 ; 3. Brahmaputra Television Network Vs. Union of India , reported in 2024 0 Supreme (Gau) 855 4. M/S Sailaja Commercial Construction Pvt. Ltd. Vs Union of India & Ors, (W.A. No. 188/2022) 5. Bekem Infra Projects Ltd Vs. Deputy Commissioner of State Tax , [SLP(C) No. 27712/2024]; 6. Sanjib Das Vs. Union of India , reported in 2022 0 Supreme (Gau) 284 ; 7. Sunil Gulati Vs. Additional Commissioner, CGST, Delhi South Commissioner & Anr. [W.P(C) No. 4383/2025]; 8. M/S Vishwanath Traders Vs. Union of India and Ors [SLP(C) No. 15594/2023]; 9. Union of India and Ors. Vs. Coastal Container Transpiration Association and ors , reported in 2019 0 Supreme (SC) 215. 33. The respondents refers to the judgment of rendered in GNRC Limited Vs. Union of India reported in (2024) 0 Supreme (Gau) 973 . The learned counsel for the respondents also pressed into service the judgment rendered in PHR Invent Educational Society Vs. UCO Bank and Ors , reported in 2024 0 Supreme SC 333 . Pressing these judgments into service, the learned counsel for the respondents submit that in the face of well anointed procedures prescribed under the GST providing for appeals, the petitioner should be relegated for filing appeal before the appropriate authority. 34. Heard learned counsel for the parties. Pleadings available on records have been carefully perused as also the service tax, demand made by the show cause notice which ultimately came to be confirmed by the impugned order in original which is the issue in the present proceedings has been assailed primarily on two grounds. 35. 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. The petitioner rendered services to three public sector undertakings besides the services rendered towards construction of flats/apartments. 36. In so far as the services rendered to IOC and IOC Marketing Division are concerned, the service tax liability of these two public sector undertakings have been paid under the reverse charge mechanism prescribed. The petitioner rendered services to three public sector undertakings besides the services rendered towards construction of flats/apartments. 36. In so far as the services rendered to IOC and IOC Marketing Division are concerned, the service tax liability of these two public sector undertakings have been paid under the reverse charge mechanism prescribed. In so far as the services rendered towards ONGC is concerned, it is the claim of the petitioner that the same has also been paid and the challans making the service tax deposit in the Government Exchequer has also been produced before the assessing authority. The service tax demand of the amount to the tune of Rs. 41,87,500/- which is reflected in the gross receipts as per Form 26AS, was related to sale of flat and the said amount therefore is outside the purview of the service tax. The relevant sale agreement and payment particulars for payment of flats had also been submitted as a proof thereof before the Competent authority. 37. Upon a perusal of the pleadings available before the Court, it is seen that the service tax liability of services of transportation of goods by road provided to Indian Oil Corporation Limited by the petitioner was stated to have been discharged by the Indian Oil Corporation Limited as a recipient of the services under reverse charge mechanism as per Notification No. 30/2012 dated 20.06.2012. Similar discharge of service tax liability in respect of the services rendered by the writ petitioner towards IOC Marketing Division was also discharged by the recipient of the services under the reverse charge mechanism. In so far as the service tax liability of the services provided to ONGC is concerned, the same has also been duly paid by the petitioner and 74 numbers of challans showing payment of service tax to the tune of Rs. 38,60,514/- was produced as a proof thereof and the further amount of Rs.41,87,500/- which is reflected as gross receipt as per Form 26AS are related to sale of flats and apartments by the petitioner and therefore, the said amount is not relatable to service tax. All the relevant documents, both scanned copies thereof and physical copies were stated to have been submitted by the petitioner before the appropriate authorities. All the relevant documents, both scanned copies thereof and physical copies were stated to have been submitted by the petitioner before the appropriate authorities. It is therefore claimed by the petitioner before this Court that the demand of service tax and penalty raised by the respondent authorities is completely erroneous and on non-appreciation of the facts and materials which have been placed before the assessing authority by the writ petitioner. In the pleadings, the gross receipts as per From 26AS are reflected below in a tabular form: FY FIRM GROSS RECEIPT AS PER 26AS 2014-15 ONGC LTD 8337843 TOTAL 8337843 2015-16 ONGC LTD 10860143 IOC MARKETING DIVISION 1435179 IOC LTD 338099 TOTAL 25550040 2016-17 ONGC LTD 9409330 IOC LTD 18080803 TOTAL 27490133 2017-18 ONGC LTD 11062223 IOC LTD 14438735 TOTAL 25500958 GRAND TOTAL 86878974 38. In this context a reference to the Notification No. 30/2012-Service Tax dated 20.06.2012 in exercise of powers conferred on it by Sub-section (2) of Section 68 of the Finance Act, 1994 notified certain taxable services and the extent of service tax payable thereon by the petitioner liable to pay service tax. The relevant portion of the said notification is extracted below: 1. The relevant portion of the said notification is extracted below: 1. The taxable services,— (A) (i) provided or agreed to be provided by an insurance agent to any person carrying on the insurance business; (ii) provided or agreed to be provided by a goods transport agency in respect of transportation of goods by road, where the person liable to pay freight is,- (a) any factory registered under or governed by the Factories Act, 1948 (63 of 1948), (b) any society registered under the Societies Registration Act, 1860 (21 of 1860) or under any other law for the time being in force in any part of India; (c) any co-operative society established by or under any law: (d) any dealer of excisable goods, who is registered under the Central Excise Act, 194 (1 of 1944) or the rules made thereunder, (e) anybody corporate established, by or under any law, or (f) any partnership firm whether registered or not under any law including association of persons; (iii) provided or agreed to be provided by way of sponsorship to anybody corporate or partnership firm located in the taxable territory; (iv) provided or agreed to be provided by, (A) an arbitral tribunal, or (B) an individual advocate or a firm of advocates by way of support services, or (C) Government or local authority by way of support services excluding, (1) renting of immovable property, and (2) services specified in sub-clauses (i), (ii) and (iii) of clause (a) of section 66D of the Finance Act, 1994, to any business entity located in the taxable territory; (v) provided or agreed to be provided by way of renting of a motor vehicle designed to carry passengers to any person who is not in the similar line of business or supply of manpower for any purpose or service portion in execution of works contract by any individual, Hindu Undivided Family or partnership firm, whether registered or not, including association of persons, located in the taxable territory to a business entity registered as body corporate, located in the taxable territory; (B) provided or agreed to be provided by any person which is located in a non-taxable territory and received by any person located in the taxable territory; (II) The extent of service tax payable thereon by the person who provides the service and the person who receives the service for the taxable services specified in (1) shall be as specified in the following Table, namely: Sl. No Description of a service Percentage of service tax payable by the person providing service Percentage of service tax payable by any person liable for paying service tax other than the service provider] (1) (2) (3) (4) 1 in respect of services provided or agreed to be provided by an insurance agent to any person carrying on insurance business Nil 100% 2 in respect of services provided or agreed to be provided by a goods transport agency in respect of transportation of goods by road Nil 100% 3 in respect of services provided or agreed to be provided by way of sponsorship Nil 100% 4 in respect of services provided or agreed to be provided by an arbitral tribunal Nil 100% 5 in respect of services provided or agreed to be provided by an individual advocate or firm of advocates by way of legal services, directly or indirectly ] Nil 100% 6 in respect of services provided or agreed to be provided by Government or local authority 29[*omitted*] excluding,- (1) renting of immovable property, and (2) services specified in sub-clauses (i), (ii) and (iii) of clause (a) of section 66D of the Finance Act, 1994 Nil 100% 7 (a) in respect of services provided or agreed to be provided by way of renting of a motor vehicle designed to carry passengers on abated value to any person who is not engaged in the similar line of business (b) in respect of services provided or agreed to be provided by way of renting of a motor vehicle designed to carry passengers on non abated value to any person who is not engaged in the similar line of business Nil 60% 100 % 40% 8. in respect of services provided or agreed to be provided by way of supply of manpower for any purpose 25% 75% 9. in respect of services provided or agreed to be provided by way of supply of manpower for any purpose 25% 75% 9. in respect of services provided or agreed to be provided in service portion in execution of works contract 50% 50% 10 in respect of any taxable services provided or agreed to be provided by any person who is located in a non-taxable territory and received by any person located in the taxable territory Nil 100% Explanation-I. - The person who pays or is liable to pay freight for the transportation of goods by road in goods carriage, located in the taxable territory shall be treated as the person who receives the service for the purpose of this notification. Explanation-II. - In works contract services, where both service provider and service recipient is the persons liable to pay tax, the service recipient has the option of choosing the valuation method as per choice, independent of valuation method adopted by the provider of service. 39. A perusal of the same reveals that services provided or agreed to be provided by a goods transport agency in respect of transportation of goods by road, where the petitioner liable to pay freight is as mentioned in the notification by or, is a taxable service. Part II of the said notification specify the extent of service tax payable thereon by the petitioner who provides the services and the person who receives the service for the taxable services specified in Part (1) of the Notification. It is stated in the Part (II) that in respect of services provided or agreed to be provided by a goods transporting agency in respect of transportation of goods by road, 100% of service tax accrued thereon is liable to be paid by the person receiving the service. Explanation I of the Notification dated 20.06.2012 states that the person who pays or is liable to pay freight for the transportation of goods by road in goods carriage located in ’ the taxable territory shall be treated as the person who receives the service for the purpose of this notification. In the present case, it is apparent from the above that the IOC Ltd. and IOC Marketing being the service recipient, 100 percent service tax was liable to be paid by them and no liability was vested upon the service provided i.e. the petitioner in this case. In the present case, it is apparent from the above that the IOC Ltd. and IOC Marketing being the service recipient, 100 percent service tax was liable to be paid by them and no liability was vested upon the service provided i.e. the petitioner in this case. That being the case, there was no liability of service tax on the petitioner for the amount received by it from the IOC Ltd and IOC Marketing Division. The respondent authorities calculated the service tax liability of the petitioner including the whole amount of receipts from IOC Ltd and IOC Marketing Division as if the service tax liability was on the petitioner. The petitioner after receipt of the order-in-original, sent a mail to the IOC Ltd. on 16.06.2022 seeking clarification regarding the said issue of service tax liability. The IOC Ltd. vide its email dated 16.06.2022 clarified the position reproducing a clarification from the finance team of IOC Ltd. on a similar query, which is reproduced below for ready reference: "As per clause (2) of Notification No 30/2012 -ST dated 20.06.2012, service tax in respect of services of transportation of goods by road provided by goods transport agency is payable by recipient of service. Para 2 of the aforesaid notification provides that service tax is payable by the person who pays or is liable to pay freight by himself or through agent for transportation of goods by toad in goods carriage located in taxable territory shall be treated as person who receives service for the purpose of this notification. Therefore, Indian Oil being recipient pf service of goods transport is liable to discharge the tax liability under reverse charge. The transporter being provider of service is not liable to discharge the service tax. IOCL has discharged the applicable service tax on such transportation service on reverse charge basis. In the running transportation bills, there is a separate column which shows the amount of service tax amount to be paid and the same was deposited in the Government exchequer by the IOC Ltd., being the service recipient. From the aforesaid, it is clear that the service tax liability for receipt of Rs. 4,72,09,426/- from IOC Ltd for providing of transportation service by road was already discharged by the service recipient IOC Ltd and IOC Marketing Division by depositing the same in the Government exchequer. 40. From the aforesaid, it is clear that the service tax liability for receipt of Rs. 4,72,09,426/- from IOC Ltd for providing of transportation service by road was already discharged by the service recipient IOC Ltd and IOC Marketing Division by depositing the same in the Government exchequer. 40. Similarly in so far as the receipts from ONGC, it is seen that out of the total receipts that was reflected in 26AS, Rs.83,37,843/- for the assessment year 2014-15, Rs. 1,08,60,143/- for the assessment year 2015-16, Rs. 9409330/- for the assessment year 2016-17 and Rs. 11062223/- for the assessment year 2017-18 were received from ONGC for services provided to them. It is seen that only when the petitioner or any vendor for that matter pays the service tax liability and produce the challan of payment of service tax to the authorities, only then the ONGC releases the payment to the vendor. The discharged the service tax liability assessed by the ONGC is received by the service provider by first paying the amount so assessed in the Government exchequer and submitting the Payment Challan to the ONGC and only thereafter the ONGC releases the payment to the petitioner. In the present case, ONGC made payment of the amount reflected in the Form 26AS of Income Tax Department, only after production of the challans showing payment of service tax by the petitioner to the Government Exchequer and as such, the question of liability to pay service tax on the said amount does not arise at all. The petitioner has made payments of service tax to the tune of Rs. 38,60,514/- on various dates for the services provided to ONGC. This position on facts has not been disputed by the respondents. 41. It is seen that the service tax amount paid by the petitioner directly to the Government exchequer i.e. Rs. 38,60,514/- and the amount withheld by way of deduction by ONGC on account of service tax i.e. Rs. 12,77,000/-. In total, the petitioner therefore has paid Rs. 51,37,514/- towards service tax which is more than the amount of service tax payable by the petitioner for providing service of supply of tangible goods to ONGC. 42. 38,60,514/- and the amount withheld by way of deduction by ONGC on account of service tax i.e. Rs. 12,77,000/-. In total, the petitioner therefore has paid Rs. 51,37,514/- towards service tax which is more than the amount of service tax payable by the petitioner for providing service of supply of tangible goods to ONGC. 42. The payment of service tax directly to the Government exchequer to the tune of Rs.38,60,514/- by the petitioner was also reflected in the portal of the Central Board of Indirect Taxes and Customs for each assessment year and the same was available to the respondent authorities at the time of making the assessment and passing the Order-in-original dated 23.05.2022. It is seen that for the amount received by the petitioner for providing services of transportation of goods by road to IOC Ltd and IOC Marketing Division, the service tax was payable by the service recipient i.e. IOC Ltd. It is also not disputed by the respondent authorities. The IOC Ltd also had clarified that they had paid service tax on reverse charge basis. 43. From this it appears that the petitioner actually had made an excess payment of Rs. 1,74,817.07 towards service tax. Therefore, there does not appear to be any short paid or short levied or non- payment of service tax as alleged in the show cause notice as well as by the impugned order in original which had confirmed the demand raised in the show cause notice. 44. 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 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” 45. 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 sum which the dealer is liable to pay must be ascertained without any reference whatever to the same. It was further held that if under the statute, it is found that the assessee is not liable to tax, no tax can be levied or imposed on them and they do not come under the purview of such a statute. It was further held that if under the statute, it is found that the assessee is not liable to tax, no tax can be levied or imposed on them and they do not come under the purview of such a statute. The Apex Court went on to hold that no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter. It was held that regard must be had to the actual provision of the Act and the Rules made thereunder before any conclusion can be arrived at that the assessee is liable to assessment as contended by the revenue authorities. The relevant provisions this Act are extracted below: “The three stages in the imposition of a tax which are laid down here predicate, in the first instance, a declaration of liability as the starting point. If there is a liability to tax, imposed under the terms of the taxing statute, then follow the provisions in regard to the assessment of such liability. 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 sum which the dealer is liable to pay must be ascertained without any reference whatever to the same. The legislature cannot enact a law imposing or authorizing the imposition of a tax thereupon and they are not liable to any such imposition of tax. If they are thus not liable to tax, no tax can be levied or imposed on them and they do not come within the purview of the Act at all. The very fact of their non-liability to tax is sufficient to exclude them from the calculation of the gross turnover as well as the net turnover on which sales tax can be levied or imposed. It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the Revenue satisfies the Court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter. We must of necessity, therefore, have regard to the actual provisions of the Act and the rules made thereunder before we can come to the conclusion that the appellant was liable to assessment as contended by the Sales Tax Authorities.” 46. Coming to the facts of the present case, in the absence of any specific averments made before this Court, it is seen that in the impugned order-in-original although at paragraph 2.2 therein, the respondent authorities had held that the assessee had failed to the reply to the show cause notice within the stipulated period but subsequent paragraphs reveals that the appellant did reply and submit all the relevant documents. There is a categorical finding by the respondent No. 5 at Paragraph 2.8 of the impugned order-in- original that upon scrutiny of the documents i.e. copy of the sales agreement, payment particulars etc submitted by the noticee in connection with the gross receipts amounting to Rs. 41,87,500/- only as per Form 26AS, that it is not service tax related transaction. It is also seen from the impugned order that although the Revenue did not reject the contention of the assessee that it had submitted the service tax payment challans in relation to ONGC and Bills received from IOC are exclusive of GST as IOC pays service tax on behalf of service providers on reverse charge mechanism, however, the assessing officer concluded that it could not be ascertained whether the services provided by the petitioner falls either in the negative list or covered under the mega exemption notification No. 25/25012-ST dated 20.06.2012 or any other notification or circulars which exempts his category of services from paying tax. The respondent No. 5 concluded that based on the available data, the noticee rendered various services under Section 65(105) of the Finance Act, 1994 as amended. Post negative list introduced in the service tax regime which became effective from 1 st of July, 2012, services provided by the Noticee would fall under the definition of service as defined under Section 65B(44) of the Finance Act, 1994 as any activity carried out by such person or another for consideration and includes declared service. The respondent No. 5 thereafter concluded and confirmed the service tax liability to the tune of Rs.1,17,27,034/- and penalty on equal amount. The relevant paragraphs of the impugned Order-in-Original are extracted below: 2. Discussion and finding: 2.1 I have gone through the case records thoroughly and carefully, 2.2 I have seen that the noticee, Sri Nirmal Kumar Sharma, Near Lachit Park, JP Agarwalla Path Sivasagar, Sivasagar, Assam — 785640 failed to reply to the Show Cause Notice dated 21/12/2020 issued to him within the stipulated period. I have also seen that, considering the principle of natural justice, he was requested to appear for Personal Hearing on 24/12/2021 in person or through authorized representatives before the Additional Commissioner, CGST Dibrugarh with a request to accompany all the documentary evidences, if any, in support of his defence. However, the noticee failed to appear of the PH on the scheduled date. 2.3 I have also seen that, consequent to the reassigning of Adjudicating authority from the Additional Commissioner, CGST Dibrugarh vide CCO’s Order vide C. No. IV(11)13/CCO/GHY/ Tech- I/ADJ/Pt.I/2019/595-97 dated 16/02/2022, the case has been transferred to the Additional Commissioner CGST Aizawl thereby the adjudicating authority had please to grant PH on 04/03/2022,, 07/03/2022 and 09/03/2022 and informed the notice to appear in person or through authorized representatives on either of the scheduled dates with an option to appear physically or through online virtual meeting. Contact numbers of the departmental officers and office email as well were also provided to the notice for enabling him to make any communication in this regard from his side to the adjudicating authority. The noticee did not appear for PH on the scheduled dates. 2.4 I find that the SCN which was issued to the noticee on 31/12/2020 and the noticee i.e. Sri Nirmal Kumar Sharma, Near Lachit Park, JP Agarwalla Path Sivasagar, Sivasagar. The noticee did not appear for PH on the scheduled dates. 2.4 I find that the SCN which was issued to the noticee on 31/12/2020 and the noticee i.e. Sri Nirmal Kumar Sharma, Near Lachit Park, JP Agarwalla Path Sivasagar, Sivasagar. Assam — 785640 failed to reply to the SCN within the stipulated time. The SCN was issued on 31.12.2020 which is more than sufficient time to defend the case. I find that sufficient opportunity has been provided in terms Section 33A of the Central Excise Act. 1944 as made applicable to Service Tax vide Section 83 of the Finance act 1994. Therefore, it appears that the notice is not interest in defending his case. When on successive occasions he did not appear and nor took interest in disposal of his case, it is thus a clear case of casualness or negligence on the part of the noticee. 2.5 I also find that, on 14/03/2022, the noticee, Sri Nirmal Kumar Sharma, Near Lachit Park, JP Agarwalla Path Sivasagar, Sivasagar, Assam — 785640 turned up and PH through online video conference was conducted on the same day before the Additional Commissioner CGST Aizawl wherein he claimed that he did not received SCN meant for him and requested for providing the same. Thereby, the adjudicating authority had accepted his prayer and provided the soft copies of desired SCN through email and whatsapp. The Adjudicating authority has also pleased to fixed another date of PH on 21/03/2022 and informed the noticee according to appear before him on same criteria as stated supra. However, instead of appearing PH on the scheduled date, he submitted a prayer for extension of PH which was fixed on 21/03/2022 to another date due to some unavoidable circumstances. On the basis of his request, another date of PH was fixed on 23/03/2022 and informed the party accordingly. 2.6 I have seen that, on 23/03/2022, Shri Abhishek Jain, CA (M/s Agarwal Rajesh K and Associates), authorized representative of Sri Nirmal Kumar Sharma, Near Lachit Park, JP Agarwalla Path Sivasagar, Sivasagar, Assam — 785640 appeared for PH before the Additional Commissioner, CGST Aizawl through virtual meeting wherein he stated that the detailed reply to SCN was already sent to Dibragarh CGST Office through email and he promised to provided same to the present adjudicating authority i.e. the Additional Commissioner, CGST Aizawl. He further submitted the following documents for the relevant period: 1. ST Payment Challans in relation to ONGC 2. Bill received from IOC exclusive of GST as IOC directly paid ST on behalf of Service Providers 3. Any other documents in relation to ST payments, Bills from the Service receiver for ready reference of the adjudicating authority. I have also seen that the authorized representative, further stated that Rs.41,87,500/- reflected as Gross Receipt as per Form 26AS was related to sale of flat by Shri Rajesh Jain so it was not Service Tax related. He also submitted the details of Sale Agreement, payment particulars etc. However, the notice failed to submit the reply of SCN of SCN till the filing of this order. 2.7. Now, I find that the issue to be decided by me in terms of the SCN is whether- 2.7.1 The notice, Sri Nirmal Kumar Sharma, Near Lachit Park, JP Agarwalla Path Sivasagar, Sivasagar, Assam-785640 is liable to pay service tax to the tune of Rs.1,44,82,015/- (Rupess One Crore Forty Four lakhs Eight Two Thousand and Fifteen) only (including cess) as detailed in the foregoing para 1.3.1 on the services rendered during the period from F.Y 2014-15 (October, 2014 to March, 2015) to FY 2017-18 (upto June, 2017) under the proviso of Section 73(1) of the Finance Act, 1994 as amended. 2.7.2. Interest is liable to be charged and realized from them in terms of Section 75 of Finance Act, 1994; 2.7.3 Penalty should not be imposed on them separately under the proviso of Section 78 (1) of the Finance Act, 1994 as amended for non-payment and short payment of Service Tax (including Cesses) as stated above. 2.7.4 Penalty should not be imposed on them under Section 77 read with Section 70 of the Finance Act, 1994 as amended read with Rule 7C of Service Tax Rules, 1994 for non-filing of periodical electrically ST-3 return from FY 2014-15 to FY 2017-18 (April 2017 to June 2017). 2.8 I find further, on scrutiny of the documents i.e. copy of Sales Agreement, Payment particulars etc. submitted by the noticee in connection with the Gross Receipt amounting to Rs. 41,87,500/- (Rupees Forty-one lakh eighty seven thousand and five hundred) only as per the Form 26AS by Rajesh Jais, that it is not service tax related transaction. 2.8 I find further, on scrutiny of the documents i.e. copy of Sales Agreement, Payment particulars etc. submitted by the noticee in connection with the Gross Receipt amounting to Rs. 41,87,500/- (Rupees Forty-one lakh eighty seven thousand and five hundred) only as per the Form 26AS by Rajesh Jais, that it is not service tax related transaction. 2.9 1 find further that the noticee, Sri Nirmal Kumar Sharma, Near Lachit Park, JP Agarwalla Path Sivasagar, Sivasagar, Assam - 785640, instead of submitting the reply of SCN to the Adjudicating Authority and the documents related work contract order, Contract Agreement etc. with M/s IOCL and M/s ONGC as well, he submitted only the following documents: ST Payment Challans in relation to ONGC 2. Bill received from IOC exclusive of GST as IOC directly paid ST on behalf of Service Providers. 3 Any other documents in relation to ST payments, Bills from the Service receiver forready reference of the adjudicating authority. Therefore, it cannot be ascertained whether the services provided by him falls either if the negative list or covered under the Mega exemption Notification No. 25/2012-ST dated 20.06.2012 or any other notifications/circulars which exempts his category of services from paying service tax. 2.10 I, therefore, find, based on the available data that, the said noticee has rendered various services under Section 65(105) of finance Act, 1994, as amended. Post introduction of Negative List regime in the Service Tax, which became effective from 1st July, 2012. the services provided by the said noticee would fall under the definition of ‘Service’ which is defined under Section 65 B (44) of the Finance Act, 1994, as amended, as any activity carried out by a person for another for consideration, and includes declared service. Hence, as per the Section 66B, there shall be levied a tax at the rate of 12.36 % (up to 31.03.2015 and 14% Service Tax and 0.5% SB Cess on Service Tax (up to 31.05.2016) and 14% Service Tax, 0.5% SB Cess on Service Tax and 0.5% KK Cess on Service Tax (thereafter) on the value of all services, other than those services specified in the Negative list. 2.11 In view of the discussions and findings in the foregoing paras, I find that the noticee is required to pay to the Government exchequer as furnished below based on Form 26AS. 2.11 In view of the discussions and findings in the foregoing paras, I find that the noticee is required to pay to the Government exchequer as furnished below based on Form 26AS. which he failed to pay and also suppressed the same to recovered from them under proviso to Section 73(1) of the Finance Act. 1994, as amended, by invoking extended period of limitation along with appropriate rate of interest under as per Section 75 of the Act, ibid. 2.12 I Find the tax liability from the foregoing para 2.11 that notice is liable to pay Service tax to the tune of Rs. 1,17,27,034/- (Rupees one crore twenty-seven thousand and thirty four) only including cess to the Government exchequer. ............................... ............................ ............................ 2.14 It appears that the notice failed to file mandatory report/returns to the Department and failed to pay his tax liability to the government exchequer. It is mandatory for service provider to take registration, declare such activities and receipt towards the same in their ST-3 returns and filed as prescribed under the relevant provision of the Act. ST-3 is prescribed under the statute so that Department can form view with regards to the taxability of the service. Failure to these shall be liable to a penalty which may extend to hundred percentage.” 47. From the recital of the impugned Order-in-original, it is seen that the respondent No. 5 does not dispute that the gross receipts as reflected in the Form 26AS obtained from the Income Tax Department in so far as the writ petitioner is concerned reflects the receipt by the petitioner assessee from IOC, IOC Marketing Division and ONGC. These receipts in so far as the IOC and IOC Marketing Division are concerned have been accepted by the assessing officer that the service tax dues have been paid by the receiver of the services under the reverse charge mechanism. In so far as the receipts from ONGC are concerned, it is seen from the impugned Order-in-Original that the petitioner has produced the payment of service tax in respect of the services rendered by the petitioner towards ONGC and it is also stated that the ONGC will make payment of the service tax only after the same has been paid by the writ petitioner. It is seen from the pleadings as is also seen in the recital in the impugned Order-in-Original that the petitioner has produced the 74 numbers of challans showing payment of service tax to the tune of Rs.38,60,514/-. That apart, an amount of Rs. 12,77,000/- on account of service tax from various bills of the petitioner have been withheld by the ONGC by deducting the same from the bills paid to the petitioner. 48. Therefore, it appears to the Court that in so far as the service tax dues of the petitioner as regards the services rendered to IOC, IOC Marketing Division and ONGC have been satisfactorily submitted before the authorities and the revenue authorities also do not dispute that the said amount has been paid by the petitioner as reflected. In so far as the amount of Rs.41,87,500/- shown as gross receipts in Form 26AS relatable to sale of flats and apartments they are not related to service tax for which the relevant agreements and payment particulars were also produced. Even assuming at this stage that there could be some clarity to be offered from the petitioner in respect of the sale of flats and apartments and the payment of service tax thereon, the very fact that the IOC, IOC Marketing Division and the ONGC have been paid the service tax dues under the reverse charge mechanism quite clearly demonstrate that no service tax dues atleast in so for as these three entities are concerned can be demanded from the petitioner. Nowhere in the impugned order-in-original is there any finding by the respondent authority that the averments and the statements of the writ petitioner in respect of the payment of service tax dues under reverse charge mechanism by IOC, IOC Marketing Division and ONGC are found to be incorrect. It was open for the respondent authority to verify and confirm these transactions with these public sector undertakings if required. Therefore, it thus appears that the demand of service tax from the writ petitioner by way of the impugned show cause and the impugned order-in-original do not appear to have been correctly assessed. It was open for the respondent authority to verify and confirm these transactions with these public sector undertakings if required. Therefore, it thus appears that the demand of service tax from the writ petitioner by way of the impugned show cause and the impugned order-in-original do not appear to have been correctly assessed. The question of levy of service tax on the basis of presumption or assumption is contrary to the scheme of the Act as well as the law laid down by the Apex Court in Chatturam Horilram Ltd (Supra) and A.V Fernandez (Supra) and other Judgments which have discussed above. Therefore, upon careful examination of the pleadings and the law as discussed above, this Court unequivocally comes to the conclusion that any determination of liability has to be specifically made within the contours of the statute law. Unless the assessee is found to be within the parameters specified under the statute, no liability can be affixed towards payment of service tax on the assessee. It is only after the assessee is fastened with the liability to pay service tax under the statute then the question of determination on the amount of service tax along with interest and penalty if any is required to be determined by way of any assessment procedure as prescribed. The Revenue authorities as is evident from the recital of the impugned order-in-original, has proceeded to determine and fasten the liability of service tax solely on the premises of the gross receipts as is available under the Form 26AS. 49. 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-original 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-original is therefore is bad and the same is liable to set aside. 50. The impugned order-in-original is therefore is bad and the same is liable to set aside. 50. 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. 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) ................... 51. 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. 52. 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. 53. In this context, it is necessary to refer to the case laws cited before this Court. 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. 53. 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: 12. 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. 54. 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. 55. 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: “ 6. Now so far as fraud and collusion are concerned, it is evident that the requisite intent, i.e., intent to evade duty is built into these very words. So far as misstatement or suppression of facts are concerned, they are clearly qualified by the word ‘wilful’ preceding the words “misstatement or suppression of facts” which means with intent to evade duty. The next set of words “contravention of any of the provisions of this Act or rules” are again qualified by the immediately following words “with intent to evade payment of duty”. It is, therefore, not correct to say that there can be a suppression or misstatement of fact, which is not wilful and yet constitutes a permissible ground for the purpose of the proviso to Section 11-A. Misstatement or suppression of fact must be wilful. 56. Coming to the fact and the present proceedings from the recital of the impugned order-in-original, it is seen that the respondent authorities had held that the petitioner assessee did not willfully get service tax registration nor filed their periodical ST-3 returns and therefore did not discharge their service tax liabilities to the Government Exchequer with mala fide intention to evade payment of service tax. The assessing authority therefore concluded that in the absence of the periodical ST-3 returns being not filed by the petitioner or the fact that the petitioner did not get service tax registration, there was deliberate suppression of material facts from the department with the intent to evade payment of service tax and as a consequence thereof, the powers under Section 73 for extension of limitation of five years was invoked for the demand and recovery of service tax short paid. 57. Such conclusions as have been discussed above are contrary to the facts which are evident from the pleadings. In any view of the matter for invocation of the provisions of Section 73 for extension of the period of limitation, it must necessarily be a case which falls under any or all the conditions specified under the proviso to Section 73(1) of the CGST Act. From a plain reading of the impugned Order- in-Original and the relevant portions of which have been extracted above, it is evident that there is no finding by the Adjudicating Authority that the case of the petitioner can be considered to be a case which falls under the conditions specified in proviso to Section 73(1). Under such circumstances, the impugned Order-in-Original appears to the Court to have been assumption of jurisdiction by the revenue authorities which was not otherwise vested on the said authority. For the revenue authorities to invoke powers under Section 73(1), there must be a finding and a conclusion arrived at based on the facts of the case that the petitioner assessee had willfully and deliberately resorted to fraud, collusion, willful misstatement, suppression of facts of contravention of any of the provision thereunder with the intent to evade payment of service tax. Therefore, for invocation of the powers proviso to Section 73(1), there must be a conclusive finding arrived at by the Revenue authorities that the petitioner assessee had resorted to any or all for these acts or omissions with the sole intention to evade payment of service tax. Such finding is not discernable from the impugned Order- in-Original passed by the Revenue Authorities. Therefore, the assumption of jurisdiction of the Revenue under the proviso to Section 73(1) has to be concluded to be a jurisdiction assumed by the Revenue authorities not vested on it by the statute. Such finding is not discernable from the impugned Order- in-Original passed by the Revenue Authorities. Therefore, the assumption of jurisdiction of the Revenue under the proviso to Section 73(1) has to be concluded to be a jurisdiction assumed by the Revenue authorities not vested on it by the statute. Such assumption of jurisdiction therefore, being contrary to the provisions of the statute itself, the same is colourable and therefore it is held to be unauthorized. 58. Where a subordinate Tribunal and an authority is found to have assumed jurisdiction not vested on it a superior Court may invoke its extraordinary jurisdiction to correct such errors which were exercises by the authorities. The powers of a superior Court to examine the authority assumed by a Tribunal was the issue in Anisminic Ltd (Supra). It was held therein that the jurisdiction of the superior Court is to see that the inferior court has not exceeded its own, and for that very reason it is bound not to interfere in what has been done within that jurisdiction, for in so doing it would itself, in turn, transgress the limits within which its own jurisdiction of supervision, not of review, is confined. That supervision goes to two points: one is the area of the inferior jurisdiction and the qualification and conditions of its exercise; the other is the observance of the law in the course of its exercise. If, therefore, a tribunal while within the area of its jurisdiction committed some error of law and if such error was made apparent in the determination itself (or, as it is often expressed, on the face of the record) then the superior court would certainly be competent correct that error unless it was otherwise forbidden to do so under the statute. It would be so forbidden if the determination was “not to be called in question in any court of law”. If so forbidden it could not then even hear argument which suggested that error of law had been made. It could, however, still consider whether the determination was within “the area of the inferior jurisdiction. By referring to Reg. Vs. It would be so forbidden if the determination was “not to be called in question in any court of law”. If so forbidden it could not then even hear argument which suggested that error of law had been made. It could, however, still consider whether the determination was within “the area of the inferior jurisdiction. By referring to Reg. Vs. Cotham, reported in (1898) 1 Q.B. 802, 808, it was noted that the distinction between, on the one hand, disregarding the provisions of a statute and considering matters which ought not to be considered and, on the other hand, what is called “a mere misconstruction of an Act of Parliament”. This perhaps illustrates the clear distinction which exists between an error when in the exercise of jurisdiction and an error in deciding whether jurisdiction can be assumed: in the latter case an error may have the consequence that jurisdiction was lacking and was wrongly assumed and the result would be that any purported decision would have no validity. The Court held that lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity. 59. Again in Bunbury Vs. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity. 59. Again in Bunbury Vs. Fuller, reported in (1853) 9 Exch 111, 140 on the question of excessive jurisdiction of a Court of limited jurisdiction, it was held that no court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit to its jurisdiction depends; and however its decision may be final on all particulars, making up together the subject matter which, if true, Is within its jurisdiction, and however necessary in many cases it may be for it to make a preliminary inquiry, whether some collateral matter be or be not within the limits, yet upon this preliminary question, its decision must always be open to inquiry in the superior court. 60. Again in Rex Vs. Shoreditch Assessment Committee, Ex parte Morgan , reported in (1910) 2 K.B. 859, it was held that no tribunal of inferior jurisdiction can by its own decision finally decide on the question of the existence or extent of such Jurisdiction: such question is always subject to review by the High Court, which does not permit the inferior tribunal either to usurp a jurisdiction which it does not possess, whether at all or to the extent claimed, or to refuse to exercise a jurisdiction which it has and ought to exercise. Subjection in this respect to the High Court is a necessary and inseparable incident to all tribunals of limited jurisdiction; for the existence of the limit necessitates an authority to determine and enforce it: it is a contradiction in terms to create a tribunal with limited Jurisdiction and unlimited power to determine such limit at its own will and pleasure — such a tribunal would be autocratic,not limited — and it is immaterial whether the decision of the inferior tribunal on the question of the existence or nonexistence of its own jurisdiction is founded on law or fact. 61. In Pilling Vs. 61. In Pilling Vs. Abergele Urban District Council , reported in (1950) 1KB 636, it was held that where a duty to determine a question is conferred on a authority which state their reason for the decision and the reasons which they state show that they have taken into account matters which they ought not to have taken into account or that they have failed to take matters into account which they ought to have taken into account, the court to which an appeal lies can and ought to adjudicate on the matter. 62. Similar views have been expressed by Courts in India and followed in several cases in the context of examination of jurisdiction vested on Tribunals and Court of limited jurisdiction. In Dhirajlal Girdharilal Vs. CIT, Bombay , reported in AIR 1955 SC 271 , the Apex Court held that when a Court of fact acts on materials partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the Court was affected by the irrelevant materials used by it in arriving at its finding and such a finding is vitiated because of use of inadmissible material and thereby a question of law arises. 63. In Ram Avtar Sharma Vs. State of Haryana , reported in AIR 1985 SC 915 , the Apex Court held that discretionary power must be exercised on relevant and not on irrelevant or extraneous considerations. It means that power must be exercised taking into account the considerations mentioned in the statute. If the statute mentions no such considerations, then the power is to be exercised on considerations relevant to the purpose of which it is conferred. On the other hand, if the authority concerned pays attention to, or takes into account, wholly irrelevant or extraneous circumstances, events or matters or considerations then the action taken by it is invalid and will be quashed. 64. In Jt. Reg., Co-operative Societies Vs. Rajagopal , reported in AIR 1970 SC 992 , the Apex Court held that even though an authority may act in its subjective satisfaction, there must be cogent materials on which the authority has to form its opinion. 65. In Indian Railway Construction Co. Ltd. Vs. 64. In Jt. Reg., Co-operative Societies Vs. Rajagopal , reported in AIR 1970 SC 992 , the Apex Court held that even though an authority may act in its subjective satisfaction, there must be cogent materials on which the authority has to form its opinion. 65. In Indian Railway Construction Co. Ltd. Vs. Ajay Kumar, reported in AIR 2003 SC 1843 , the Apex Court held that in the purported exercise of its discretion, the authority conferred with discretion must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations, must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter and to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. 66. Again in Shalini Soni Vs. Union of India , reported in (1980) 4 SCC 544 , it was held by the Apex Court that it is an unwritten rule of law, constitutional and administrative, that whenever a decision- making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote. Applying this principle in CIT Vs Mahindra & Mahindra, reported in (1983) 4 SCC 392 , the Supreme Court quashed a decision under Section 72-A of the Income Tax Act, as the government was “clearly influenced by irrelevant and extraneous materials vitiating the impugned conclusion. 67. In S.R Venkataraman Vs. Union of India , reported in AIR 1979 SC 49 , the Apex Court held that an administrative order which is based on reasons of facts which do not exist is infested with an abuse of power. There will be an error of fact when a public body is promoted by a mistaken belief in the existence of a non-existing fact or circumstance. 68. From a careful analysis of the judicial pronouncements as discussed above, it is clear that if an authority while making the inquiry rejects a consideration which is relevant and/or takes into consideration materials and other information which are not relevant, the said decision can be said to be a decision in excess or without jurisdiction. 68. From a careful analysis of the judicial pronouncements as discussed above, it is clear that if an authority while making the inquiry rejects a consideration which is relevant and/or takes into consideration materials and other information which are not relevant, the said decision can be said to be a decision in excess or without jurisdiction. In the present case the adjudicating authority took into consideration the information available in form 26AS of the Income Tax Act, the sole basis for the purpose of levy of service tax. The authority did not consider the services rendered by the petitioner were exempted from levy of service tax or the liability to pay the service tax on the said services was on the recipient on the services. Since the adjudicating authority did not take into consideration those relevant materials which it was bound to take into consideration and on the other hand it had taken into consideration factors and materials, which if not irrelevant and not germane for deciding the liability of the service tax, cannot establish the liability of the assessee, then the said actions of the adjudicating authority is certainly without jurisdiction and/or is in excess of jurisdiction and thereby the impugned actions, orders and notices issued by the adjudicating authority are liable to interfered with by this Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India. 69. Coming to the question of maintainability of the writ petition in view of the availability of statutory alternative remedy, the respondents have raised objections that whatever issues have been urged by the petitioner before this Court can very well be looked into by the appellate authority prescribed under the statute. Therefore, the question of exercise of prerogative writs by this court is not called for and the writ petition should be dismissed and the petitioners should be relegated to avail the statutory remedy. That 70. While the respondents are within their rights to raise their objections, time and again the question of issuance of prerogative writs even where statutory alternative remedies are available and/or are not availed of by the assessee, has come up before this Court as well as the Apex Court in a Catena judgments. The Assam High Court in Hardeodas Jagannath Vs. While the respondents are within their rights to raise their objections, time and again the question of issuance of prerogative writs even where statutory alternative remedies are available and/or are not availed of by the assessee, has come up before this Court as well as the Apex Court in a Catena judgments. The Assam High Court in Hardeodas Jagannath Vs. Income Tax Officer , reported in (1961) 47 ITR 56 had clearly held that there is no inflexible rule that the existence of an alternative remedy is a bar to the issue of writ of certiorari. The issuance of prerogative writs or directions is always to the discretion of the Court and the Court while exercising its discretion may take into consideration the existence of an alternative remedy as a matter of policy, but the existence of an alternative remedy is not per se a bar to the issue of writ of certiorari. The High Court at Paragraph 42 held as under: ”42 No Tribunal and no Officer can confer jurisdiction or authority or competence upon itself or himself by misconstruing a section. An authority cannot claim to exercise jurisdiction by construing a section erroneously and thereby contending that the section so wrongly construed gives him the necessary power. In such a case, if the section has been wrongly construed, it would be a clear case of absence of jurisdiction apparent on the face of the record because the Court has got to look at the section and to decide whether the officer construing the section was in the right or in the wrong.” 71. The Apex Court in TELCO Vs. Assistant Commissioner , reported in AIR 1967 SC 1401 held that though ordinarily High Court leaves an aggrieved party to take recourse to the remedies available under the ordinary law, if they are equally efficacious, yet there are certain exceptions and one of such exceptions pointed out is where action is being taken arbitrarily and without the sanction of law. 72. In State of U.P. Vs. Mohd. 72. In State of U.P. Vs. Mohd. Nooh , reported in 1958 SCR 595 , the Apex Court held that the rule requiring the exhaustion of statutory remedies before the writ is granted is a rule of policy, convenience and discretion rather than rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. 73. In Bhopal Sugar Industries Vs. D.P. Dubey , reported in AIR 1967 SC 549 , the Apex Court held that the High Court has undoubted jurisdiction to decide the writ application whether the taxing authority has arrogated to itself, powers which it does not posses or has committed serious errors of procedure which has affected the validity of the decision or where the taxing authority threatens to recover tax on an interpretation of the statute which is erroneous. 74. In Altafur Rahman Vs. Union of India , reported in (1986) 1 GLR 14 , this Court held that when the challenges of the petitioner go to the root of the jurisdiction of the Controller and therefore the writ petition cannot be dismissed without disposing the contentions of the petitioner on merits. 75. In Whirlpool Corporation Vs. Registration of Trade Mark , reported in (1998) 8 SCC 1 , the Apex Court on the question of alternative remedy held that exception on the existence whereof a Writ Court would be justified in entertaining a writ petition despite the party approaching it not having availed the alternative remedy provided by the statute were laid document was the exceptional land document by the Apex Court were as under : (i) where the writ petition seeks enforcement of any of the fundamental rights. (ii) where there is violation of principles of natural justice; (iii) Where the order or the proceedings are wholly without jurisdiction; or (iv) Where the vires of an Act is challenged 76. 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 jurisdiction of the High Court under Article 226 has not pursued, would not oust the jurisdiction of the High Court and render a writ petition “not maintainable”. 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 jurisdiction of the High Court under Article 226 has not pursued, would not oust the jurisdiction 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 disputed questions of fact but only questions of law, then it should be decided by the high court instead of dismissing the writ petition on the ground of an alternative remedy being available. The relevant paragraph is extracted below: “9. Now, reverting to the facts of this appeal, we find that the appellant had claimed before the High Court that the suo motu revisional power could not have been exercised by the Revisional Authority in view of the existing facts and circumstances leading to the only conclusion that the assessment orders were legally correct and that the final orders impugned in the writ petition were passed upon assuming a jurisdiction which the Revisional Authority did not possess. In fine, the orders impugned were passed wholly without jurisdiction. Since a jurisdictional issue was raised by the appellant in the writ petition questioning the very competence of the Revisional Authority to exercise suo motu power, being a pure question of law, we are of the considered view that the plea raised in the writ petition did deserve a consideration on merits and the appellants writ petiton ought not to have been thrown out at the threshold.” 77. Again in Union of India Vs. 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 jurisdiction 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 jurisdiction under Article 226, the High Courts are quite conscious of the scope and nature of jurisdiction, 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 jurisdictional 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 jurisdiction is to be exercised, and those principles, in turn, are also already enunciated by this Court.” 78. 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 jurisdiction or in exercise of jurisdiction 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. In the present case the adjudicating authority has imposed service tax most arbitrarily without considering the materials placed on record by the petitioner that the transportation services rendered by the petitioner to India Oil Corporation Ltd. were liable to service tax on reverse charge basis i.e. the recipient of service namely Indian Oil Corporation Ltd was liable to pay service Tax and in fact the Indian Oil Corporation had already discharged its liability to pay service tax and in so far as the services rendered to ONGC, the petitioner had already paid the Service tax or tax was deducted at source and thereby question of levying of any service tax on the petitioner did not arise. The adjudicating authority merely on inferences and analogy levied service Tax on the petitioner on the information available in Form 26AS obtained from the Income tax department without examining the fact as to whether the said services were taxable in the hands of the petitioner. Such action of the adjudicating authority is absolutely without jurisdiction and/or in excess of jurisdiction and gross procedural irregularity has been committed by the adjudicating authority and thereby the availability of alternative remedy cannot come in way of maintainability of the writ petition. The adjudicating authority has invoked the extended period of limitation without arriving at a conclusion that there was any suppression or misstatement or fraud or collusion and/or contravention of any of the provisions of the Act and Rules with the intent to evade payment of any tax and thereby the issuance of the show cause notice itself after the period the limitation was absolutely without jurisdiction. From a reading of the order of adjudication it is clear that gross injustice has been done to the petitioner because of the high handed and palpably illegal and arbitrary order and therefore it is held that the present writ petition is maintainable notwithstanding the availability of statutory alternative remedy and the impugned show cause notice as well as order of adjudication are liable to be set aside and quashed. 79. 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. 79. 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 jurisdiction under section 73(1), it is the mandate of the statute that the authorities must come to a specific conclusion that the jurisdiction conferred on the revenue authorities under Section 73 (1) can be invoked in the facts and circumstances of the present case. As have been elaborately discussed in the preceeding paragraphs that for invocation of jurisdiction under section 73(1), the respondent authorities must come to a conclusion that the invocation of the powers under section 73 (1) is necessary as the petitioner’s case falls under any of the conditions mentioned in the proviso to section 73(1) of the CGST Act. However, from the recital of the order impugned, it is seen that the primary reason for invoking the jurisdiction under section 73(1) is non furnishing of the required documents by the petitioner assessee to be full satisfaction of the respondent authorities. This mere non furnishing of documents or information in itself cannot be construed to have given rise to a situation under any or all of these five conditions under proviso to section 73(1) in order to levy service tax by extending limitation by the revenue authorities who have invoked this powers under section 73(1). Under such circumstances, ordinarily the revenue authorities could not have issued the impugned notice in demand followed by the order in original as it would have been hit by limitation. Under such circumstances, ordinarily the revenue authorities could not have issued the impugned notice in demand followed by the order in original as it would have been hit by limitation. It is only by invocation of Section 73(1) under the GST Act that the revenue authorities have assumed powers for issuance of the show cause and the consequential confirmation by the impugned order in original by extension of the limitation. Therefore, the parameters prescribed under the proviso to section 73 (1) are to be scrupulously and diligently followed by the revenue authorities. It does not depend on the ipse dixit of the revenue authorities. They must certainly arrive at a specific conclusion that the non-furnishing of documents leading to non-payment of GST is a deliberate and willful attempt by the petitioner assessee to evade from payment of the taxes due. The revenue authorities were within their rights to issue appropriate notices and carry out proceedings within the ordinary period of limitation prescribed, if it was their conclusion on due examination of the materials before them that there was any shortfall in the payment of GST and the same was required to be recovered. However, this process for demand and recovery was not initiated within the period of limitation ordinarily prescribed under the provisions of the Act. Therefore, the revenue authorities invoked the provisions under Section 73(1) to issue the demand cum show cause notice and the consequential impugned order in original confirming the demand and imposition of penalty and interest. It is the view of this Court that while demand and recovery of taxes as ordinarily prescribed under the provisions of the Act requires careful consideration of the facts and circumstances and satisfaction of all the parameters prescribed upon, the demand and recovery under the extended period of limitation under section 73(1) being an exception to the General Rule, requires a higher degree of responsibility and diligence on the part of the revenue authorities before they can proceed to invoke the powers conferred under section 73(1). 80. 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. 80. 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. 81 . 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 jurisdiction by the Revenue authorities where the statutes did not confer them such jurisdiction 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 jurisdiction mandated under the statute has fulfilled the necessary pre-conditions prescribed by the statute itself. 82 . A Writ Court while exercising its powers under Article 226 can certainly examine whether the Tribunal or the quasi-judicial authority by exercising its jurisdiction mandated under the statute has fulfilled the necessary pre-conditions prescribed by the statute itself. 82 . In the facts and circumstances of the case, it is the conclusion arrived at by this Court that such preconditions mandated by law under section 73(1) having not been fulfilled by the Revenue authorities, their assumption of jurisdiction under section 73(1) of the GST Act was completely unwarranted and revenue authorities could not have assumed the jurisdiction under section 73(1) unless these pre-conditions mandated and a conclusion thereto has been arrived at by the Revenue authorities before assumption of such jurisdiction. It is under these circumstances that notwithstanding the availability of statutory alternative remedy, this Court considers it an appropriate case to invoke its jurisdiction 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 impugned order in original and it is ordered accordingly. 83. 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.