1. Petitioner P.K. Haji Gulam Mohideen Sahib was doing business in grocery and general goods in Longly Road, Shevapet. His assessments for the years 1958-59 and 1959-60 were revised by the Sales Tax Department on 22nd September, 1963, as it was noticed on recovery of certain accounts relating to his business, that he had omitted to account for large transactions in his accounts, and as a result of these revisions and the assessment for the subsequent year 1960-61, demand notices were served on the petitioner on 7th October, 1963, and as he failed to pay the tax so assessed within a month, he was prosecuted under Section 45(2)(b) of the Madras General Sales Tax Act on the ground that he had fraudulently evaded payment of the tax assessed and demanded by the department. It is stated that the prosecution had been withdrawn subsequently. The petitioner filed I.P. No. 3 of 1965 in the District Munsif's Court, Salem, to adjudicate him as insolvent. It was opposed by the Sales Tax Department and the proceedings in the Insolvency Court are pending. But the Commercial Tax Officer, Salem, has arrested the petitioner under Section 29 of the Madras General Sales Tax Act, 1959, read with Sections 48 and 49 of the Revenue Recovery Act (Act II of 1864) and the legality of this arrest has been questioned by the petitioner in this writ of habeas corpus.
2. The Commercial Tax Department has not taken a consistent attitude in this matter. In the counter to the insolvency petition, the first respondent has pleaded that it is false to say that the petitioner is not possessed of properties to pay off the taxes due to the State of Madras and the State of Kerala and that the petitioner is possessed of movable and immovable properties worth more than rupees two lakhs, but that in order to defeat and delay the claims of the department, he had created some documents in respect of all his immovable properties in the name of his wife and sons and that the said transactions are not binding on the department. Even in the counter to this petition, it is stated that the petitioner owns properties and that he has secreted them.
3. Though several contentions have been raised in this writ petition, it could be disposed of on a short ground. Section 48 of the Revenue Recovery Act (Madras Act II of 1864) provides that
When arrears of revenue, with interest and other charges...cannot be liquidated by the sale of the property of the defaulter, or of his surety and the Collector shall have reason to believe that the defaulter or his surety is wilfully withholding payment of the arrears, or has been guilty of fraudulent conduct in order to evade payment, it shall be lawful for him to cause the arrest and imprisonment of the defaulter or his surety, not being a female, as hereinafter mentioned.
4. Thus in order to invoke this power of arrest by virtue of Section 29 of the Madras General Sales Tax Act, the Commercial Tax Officer should have not only reason to believe that the petitioner is wilfully withholding payment of the arrears, or has been guilty of fraudulent conduct in order to evade payment, but also that the arrears of tax cannot be liquidated by the sale of the property of the defaulter. It is unnecessary to go into the question whether the Commercial Tax Officer had materials upon which he could base his belief that the petitioner was fraudulently evading payment of taxes. But on the several statements made by the Commercial Tax Officer, it could not be urged that the arrears of tax demanded by him cannot be liquidated by the sale of the properties of the petitioner. Petitioner has undoubtedly inherited his share in the estate of his wife as her heir. In Shiakh Ali Ahmed v. Collector of Bombay  17 I.T.R. 371 it was held that under Section 13 of the Bombay City Land Revenue Act, 1876, the assessee's properties should, in the first instance, be sold before he could be apprehended and confined in a civil jail and as this had not been done, the order of the Collector authorising the detention of the assessee in prison could not be sustained in law. The relevant portion of Section 13 of the Bombay City Land Revenue Act is as follows :
If the sale of the defaulter's property shall not produce satisfaction of the demand, it shall be lawful for the Collector to cause him to be apprehended and confined in the civil jail under the rules in force at the Presidency for the confinement of debtors....
5. It should be noted that in the Bombay case the assessee was adjudged insolvent. It was held in that decision that although the assessee's property vested in the Official Assignee by reason of the adjudication order, it was still capable of being sold for realisation of the Government dues. In Purshottam Govindji Halai v. Additional Collector of Bombay : 1956CriLJ129 the Supreme Court did not accept the view of the Bombay High Court in Shaikh Ali Ahmed v. Collector of Bombay  17 I.T.R. 371 and held that Section 46(2) of the Indian Income-tax Act, 1922, prescribes two alternative modes of procedure for realising arrears of income-tax but that what all the Sub-section directs the Collector to do is to proceed to recover the certified amount as if it were an arrear of land revenue, that is to say, he is to adopt the procedure prescribed by the appropriate law of his State for the recovery of land revenue and that in thus proceeding he is, under the proviso, to have all the powers a civil court has under the Code. The decision of the Supreme Court does not affect the correctness of the view of the Bombay High Court on the interpretation of Section 13 of the Bombay City Land Revenue Act of 1876 corresponding to Section 48 of the Madras Revenue Recovery Act (II of 1864). Thus the Commercial Tax Officer has no jurisdiction to invoke the powers of arrest under Section 48 of the Revenue Recovery Act before satisfying the condition precedent that the arrears of tax demanded from the petitioner cannot be liquidated by the sale of his property. It is no doubt open to the Commercial Tax Officer to exercise the powers of arrest conferred under Section 48 of the Revenue Recovery Act after exhausting his remedies against the properties of the petitioner.
6. For the foregoing reasons, the order of detention of the petitioner in a civil jail is set aside. The writ petition is allowed. We make no order as to costs. His bond is cancelled.