Page 117 - GSTL_2nd April 2020_Vol 35_Part 1

2020 ] MANMOHAN LALMAN AGARWAL v. STATE OF GUJARAT 19
tice; therefore, a unilateral decision as to appropriation ought not to
have been made;
(b) there is also force in the contention of the Counsel for the Assessee
that the respondents being statutory authorities, need to practice
fairness while dealing with a citizen and that, the unilateral recov-
ery by way of appropriation falls short of fairness standards which
the respondents are expected to maintain; and
(c) the contention of the Learned Counsel for the Revenue that the Act
vests the power in the respondents to take measures for recovery of
tax, interest & the penalties that have fallen due does not come to
the rescue of the Revenue; existence of power is one thing and its
exercise is another; the existence per se does not justify the exercise;
no case is made out for excluding an opportunity of hearing to the
Assessee before making the impugned order.
4. In the above circumstances, this writ petition succeeds in part; that
part of the impugned which appropriated a portion of refundable amount hav-
ing been set at naught, the other part has been left intact; matter is remitted to the
answering respondent for consideration afresh after hearing the petitioner or his
agent, within a period of eight weeks.
5. It is open to the respondents to solicit any information or documents
from the petitioner as are necessary for the fresh consideration of the matter;
however, in the guise of such solicitation delay shall not be brooked.
6. It hardly needs to be stated that the answering respondent shall in-
form the petitioner the result of consideration pursuant to remand, failure
whereof shall be viewed seriously.
7. No costs, now.

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2020 (35) G.S.T.L. 19 (Guj.)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. Kogje, J.
MANMOHAN LALMAN AGARWAL
Versus
STATE OF GUJARAT

R/Criminal Misc. Application No. 21575 of 2019, decided on 31-1-2020
Bail - Anticipatory bail - Generation of fake and fabricated documents
availed or to make others avail illegal input tax credit causing huge loss to
Revenue - Applicants ready and willing to abide by all conditions, including
conditions with regard to powers of Investigating Agency to file application
before competent court for their remand with their rights to oppose such ap-
plication on merits kept open - Bail granted with conditions - Leave to Investi-
gating Agency to apply to competent Magistrate for Police remand of appli-
cants - Section 438 of Code of Criminal Procedure, 1973. [paras 4, 5, 6, 7, 8]
Application allowed
GST LAW TIMES  2nd April 2020  181