This petition is filed for the issue of a writ of certiorari against the Collector of North Arcot calling for the record in Ref. No. D. 9566/63 on his file and for quashing his order dated February 2, 1963, confirming the order of the Sub-Collector dated December 22, 1961, in R.C.A. No.29526/60.

The facts relevant to this petition may be stated. Under a claim to recover a sum of Rs. 1,99,832.96 as Income Tax arrears, the Tahsildar of Gudiyatham acting on the orders of the District Collector of North Arcot brought the properties belonging to the petitioner for sale in revenue auction on June 11, 1959, in two lots. Lot No.2 after a fresh notice for re-sale was notified for sale on July 21, 1960, and was sold on that date and purchased by the second respondent for Rs. 15,000. The petitioner filed an application on August 19, 1960, for setting aside the sale. The Sub-Collector confirmed the sale on December 22, 1961. Though a copy of the order confirming the sale was requested, the petitioner was not granted a copy. He filed an appeal to the Collector under the provisions of section 38, of the Madras Revenue Recovery Act. The Collector dismissed the appeal. A further appeal to the Board of Revenue was also rejected on the ground that the Board had no jurisdiction to interfere with the orders of the District Collector.

It is admitted that the tax arrear on the date of attachment of the properties was not Rs. 1,99,832.96 but amounted only to Rs. 1,58,361.71. The amount for which the property was attached was admitted greater than the amount of arrears as on that date, and as the attachment and the subsequent sale by the Collector were for a higher amount than what was actually due, it was contended that the attachment as well as the sale were without jurisdiction and unsustainable in law, and liable to be quashed. It is unnecessary to deal with the other points raised in this petition, because the petition will have to be allowed on the ground that the attachment and the subsequent sale were illegal.

The Income Tax Officer is empowered under section 46(2) of the Indian Income Tax Act, 1922, to forward to the Collector a certificate under his signature specifying the amount of arrears of tax due from the assessee, and the Collector on receipt of such certificate is bound to proceed and recover from such assessee the amount specified therein as if it were an arrear of the land revenue. When the amount due had not been paid pursuant to the terms of the demand, the Collector or the officer empowered by him is entitled to recover the arrear by the attachment and sale of the defaulters land. The property of the defaulter is attached by affixing a notice in some conspicuous part of the land. Section 27 of the Revenue Recovery Act required that the notice shall set forth that, unless the arrear with interest and expenses be paid within the date mentioned, the land will be brought to sale in the due course of law. While section 26 empowers the Collector to proceed to recover the arrears due by the attachment and sale, section 27 enjoins on him to set forth in the notice of attachment the arrears with interest and expenses. The Collector has no jurisdiction to attach or bring to sale the properties for recovering a sum higher than what was legally due on the date of the notice of attachment. It has been held by the Supreme Court in Income Tax Officer v. Seghu Buchiah Setty, that, when the tax payable by the respondent was reduced by the Appellate Assistant Commissioner, a fresh demand notice had to be served on the respondent before he could be treated as a defaulter and recovery proceedings initiated against him. The court took the view that the default based on its earlier order before revision and all consequential proceedings must be taken to have been superseded and fresh proceedings would have to be started to realise the dues as found by the revised order. As a result of the above decision several recovery proceedings were invalid