Court affirms dismissal of appeal by deceased petitioner's reps over non-compliance with deposit rule.

The Court upheld the order dismissing the appeal by the legal representatives of the deceased petitioner (Devaki Ammal) seeking to set aside the sale of immovable property due to non-compliance with the deposit requirement under rule 61 of the Second Schedule to the Income-tax Act, 1961. The Court emphasized that the deposit should precede the consideration of the application for setting aside the sale, even though the arrears were paid during the pendency of the writ petition. The appeal was rejected, affirming the dismissal of the writ petition for failure to comply with the deposit requirement.

---

---

Issues: Failure to comply with clause (b) of the proviso to rule 61 of the Second Schedule to the Income-tax Act, 1961 in relation to the procedure for recovery of tax. Application for setting aside the sale of immovable property due to non-compliance with deposit requirement. Interpretation of rule 61 and its proviso in the context of depositing the recoverable amount from the defaulter.

Analysis:
The case involved the failure of the appellants to comply with clause (b) of the proviso to rule 61 of the Second Schedule to the Income-tax Act, 1961, which pertains to the procedure for recovery of tax. The property of the late M. Natesan was sold in public auction towards the tax arrears, and his widow filed an application to set aside the sale under rule 61 but did not deposit the recoverable amount. The Tax Recovery Officer rejected the application, leading to a writ petition challenging the order (T. R. No. 3020 of 1972-73, dated June 13, 1985). The appeal was made under article 226 of the Constitution. The learned single judge dismissed the writ petition due to non-compliance with the deposit requirement, leading to the current appeal by the legal representatives of the deceased petitioner (Devaki Ammal).

During the appeal, it was argued that the appellants had paid the entire arrears of income tax while the writ petition was pending, which had been received by the Department. The appellants contended that the first respondent should consider the application for setting aside the sale. Rule 61 of the Second Schedule allows for setting aside the sale of immovable property based on grounds like non-service of notice or irregularity. The rule mandates that an application made by a defaulter should be disallowed unless the applicant deposits the recoverable amount from him in execution of the certificate.

The Court analyzed the provisions of rule 61 and its proviso, emphasizing that the deposit requirement should be fulfilled before the application for setting aside the sale is considered by the Tax Recovery Officer. In this case, the late M. Natesan was in arrears, and the property was sold without the deposit being made. The Court noted that while the rule does not explicitly state that the deposit should accompany the application, it should be made before the application is taken up for consideration. As the deposit was made only during the pendency of the writ petition, it was deemed not in conformity with the rule's requirement. Therefore, the Court upheld the order of the learned single judge, dismissing the appeal and rejecting the costs.

---