Judgment :- 1. The petitioner is the transferee of an agricultural property. The transfer occurred on 30-11-1977. An assessment was made on the transferor in respect of the agricultural income for the years 1975-76 and 1976-77. This was for the period prior to the date of transfer. The assessment was made after due notice to the assessee. However, recovery proceedings were initiated against the petitioner in his capacity as the transferee for the taxes due from the assessee-transferor for the period prior to the date of transfer. The petitioner filed revision petitions before the Commissioner of Agricultural Income-tax, but without success. His main contention before the Commissioner was that no notice had been issued to the petitioner prior to the assessment. The Commissioner rightly rejected the contention stating that the petitioner was not the assessee and he was therefore not entitled to any pre-assessment notice. The assessment was duly made after due notice to the transferor. The revenue recovery proceedings are initiated in respect of the property purchased by the petitioner by reason of his liability under the proviso to S.23. 2. Counsel for the Petitioner Shri. K.S. Radhakrishnan submits that the property proceeded against being the property of the petitioner who is the transferee, the petitioner is entitled to be heard before recovery can be had by attachment and sale of the property. 3. S.23 reads: "23. Assessment in case of transfer, of right inland. 2. Counsel for the Petitioner Shri. K.S. Radhakrishnan submits that the property proceeded against being the property of the petitioner who is the transferee, the petitioner is entitled to be heard before recovery can be had by attachment and sale of the property. 3. S.23 reads: "23. Assessment in case of transfer, of right inland. Where a person in receipt of agricultural income from any land in the State is found to have transferred his interest in such land to another person, the transferor and the transferee shall each be assessed in respect of his actual share, if any, of such agricultural income: Provided that when the transferor cannot be found the assessment of such agricultural income of the previous year in which the transfer took place up to the date of the transfer and for the years preceding that year shall be made on the transferee in like manner and to the same amount as it would have been made on the transferor or when the tax in respect of the assessment made for any or all of such years assessed on the transferor cannot be recovered from him, it shall be payable by and recoverable from the transferee, and the transferee, shall be entitled to recover from the transferor the amount of any tax so paid." The proviso to the Section, which alone is material here, has two limbs. The first limb provides for assessment being made on the transferee when the transferor cannot be found. In the present case there has been no such assessment on the transferee, apparently because the department has no case that the transferor could not be found. But proceedings are initiated for recovery by attachment and sale of the transferred property, probably because the tax in respect of the assessment already made on the transferor could not be recovered from him. If that is the true position, it is, open to the department to recover the tax from the assessee, and, in that event the assessee shall be entitled to recover the tax paid by him from the transferor. The second limb thus enables the department in the circumstances contemplated by law to recover from the transferee the taxes due in respect of the assessment made on the transferor. But such recovery can be had only when the circumstances postulated by the second limb of the proviso are attracted. The second limb thus enables the department in the circumstances contemplated by law to recover from the transferee the taxes due in respect of the assessment made on the transferor. But such recovery can be had only when the circumstances postulated by the second limb of the proviso are attracted. That means the department must show that an earnest attempt was made to recover the tax from the transferor, but the recovery could not be had from him. This means the transferee must be told before tax is recovered from him that such an attempt was made to recover the tax from the transferor from whom it was due, but it could not be recovered. The transferee must then have a due opportunity to contest the claim of the department by pointing out that the transferor is in a position to pay. Such a contention of the assessee must be considered by the department and, if not found valid, then an order must be passed directing recovery from the transferee. Upon such recovery from the transferee, he gets the right to recover the tax paid by him from the transferor. 4. In other words, the transferee has a right to be heard before he is suddenly called upon to pay what is ordinarily not payable by him, but only by the transferor. His liability to pay arises only because of the proviso to S.23 and that proviso in terms must be satisfied before recovery can be had from him. That means the department must tell him that the recovery could not be had from the assessee himself and he should have an opportunity to point out to the department that recovery could still be had from the assessee. If such a contention lacks merits on the facts of a given case, it is open to the department to proceed against the assessee according to the proviso. 5. In the circumstances, the assessing authority, the third respondent, shall issue notice to the petitioner under the second limb of the proviso to Si 23 as aforesaid, and, in the meantime, the fourth respondent-Tahsildar shall defer action under the Revenue Recovery Act until such time as a final order is made by the assessing authority pursuant to the above mentioned notice and hearing. The Original Petition is allowed in the above terms. No costs.