Conditional arrest for tax recovery is invalid unless authorities first find the defaulter's property cannot satisfy the arrears.

Section 48 of the Revenue Recovery Act permits arrest for tax recovery only when the defaulter is believed to be wilfully withholding payment or acting fraudulently, and the arrears cannot be realised by sale of the defaulter's property. The power is therefore conditional on first proceeding against the property and finding that sale is insufficient to satisfy the demand. On the facts described, the authorities had not shown that the dues could not be recovered from the petitioner's properties, so the arrest was without jurisdiction and could not be sustained.

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Issues: Whether the Commercial Tax Officer could lawfully arrest and detain the petitioner under section 29 of the Madras General Sales Tax Act, 1959 read with section 48 of the Revenue Recovery Act (Madras Act II of 1864) without first satisfying that the arrears could not be realised by sale of the petitioner's property.

Analysis: Section 48 of the Revenue Recovery Act authorises arrest only when, in addition to a belief that the defaulter is wilfully withholding payment or has acted fraudulently to evade payment, the arrears cannot be liquidated by sale of the defaulter's property. The power of arrest is therefore conditional upon prior resort to the property of the defaulter. On the facts stated by the department, it could not be maintained that the tax dues were incapable of being realised from the petitioner's properties. The arrest was thus attempted without fulfilling the statutory condition precedent.

Conclusion: The arrest and detention were without jurisdiction and could not be sustained; the petition succeeded in favour of the petitioner.

Final Conclusion: The statutory power of arrest for recovery of tax arrears could be exercised only after the recovery authorities had first proceeded against the defaulter's property and found that sale of such property was insufficient to satisfy the demand.

Ratio Decidendi: Where a revenue recovery statute makes arrest contingent upon the inability to realise arrears from the defaulter's property, arrest cannot lawfully be ordered until that statutory precondition is met.

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