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1972 DIGILAW 692 (MAD)

Mahboob Bi v. Tax Recovery Officer and Another

1972-11-14

G.RAMANUJAM, V.RAMASWAMY

body1972
Judgment :- RAMANUJAM J. The petitioner's late husband, one T. M. Abdul Rahim, was in arrears of income-tax, interest thereon and penalty aggregating to Rs. 4, 37, 868.29. For recovering the said amount, recovery proceedings were initiated by the income-tax department. A certificate was issued by the Income-tax Officer to the Tax Recovery Officer under section 222 of the Income-tax Act, 1961The question is whether the notice of attachment and. the proclamation of sale issued in the names of the deceased defaulter are invalid and, if so, whether subsequent service of the notices of demand on the legal representatives will cure the invalidity of the notices of attachment and the sale proclamation issued in. the name of the deceased defaulter long earlier in December, 1968 Admittedly, all the notices of attachment and the sale proclamation issued in December, 1968, were only in the name of the deceased defaulter and not in the names of his legal representatives. It is well established that if a revenue sale is held when a defaulter is dead without a notice of demand being served on any living person as defaulter, the sale is a nullity: Vide Avudainayagam Pillai v. Pitchiah Chettiar. Even from the counteraffidavit it is seen that the Tax Recovery Officer was aware even in May, 1968, when the original notice of demand issued against the defaulter was returned with the endorsement that the defaulter was dead. The Tax Recovery Officer should have, therefore, followed the procedure laid down in rule 85 of the Second Schedule by serving notices of demand against the legal representatives of the defaulter. That rule points out that if at any time after the issue of the certificate by the Income-tax Officer to the Tax Recovery Officer the defaulter dies, the proceedings under that Schedule (except arrest and detention) may be continued against the legal representatives of the defaulter, and the provisions of that Schedule should apply as if the legal representative was the defaulter. As already stated, all the notices issued on December 26, 1968, were addressed to the defaulter and there is no indication in those notices that the proceedings are being taken against the legal representatives. It is only in February, 1969, notices were addressed to and served on the legal representatives of the deceased defaulter. As already stated, all the notices issued on December 26, 1968, were addressed to the defaulter and there is no indication in those notices that the proceedings are being taken against the legal representatives. It is only in February, 1969, notices were addressed to and served on the legal representatives of the deceased defaulter. It could, therefore, be said that the recovery proceedings had been properly initiated against the legal representatives of the deceased defaulter only after February, 1969. Therefore, the earlier attachment and the settling of the sale proclamation made on December 26, 1968, without notice to the legal representatives of the deceased defaulter cannot be held to be in accordance with the rules. Once the Tax Recovery Officer is put on notice of the death of the defaulter, the Tax Recovery Officer has to proceed under rule 85 by initiating or continuing the recovery proceedings against the legal representatives of the defaulter under the Second Schedule for recovery of the amount due from the defaulter. As already stated, in this case the attachment and the sale proclamation have taken place long after the death of the defaulter, but long before the proceedings under rule 85 were initiated against the legal representatives of the deceased defaulter. We have, therefore, to hold that the notice of attachment and the sale proclamation issued on December 26, 1968, are not valid. The writ petition is, therefore, allowed on this short groundWe, however, make it clear that it is open to the Tax Recovery Officer to continue the recovery proceeding by issuing afresh notices of attachment and proclamation of sale to the legal representatives, as the petitioner and the other legal representatives have already been served with notices of demand in February, 1969, as per rule 85. We may also point out that in any recovery proceedings initiated or continued against the legal representatives of the deceased defaulter, the notices are to be addressed in the names of the legal representatives either individually or as the legal representatives of the deceased defaulter. There will be no order as to costs in this petition.