(RAMAPRASADA RAO, J.)

The petitioner is one K.A. Meera Saibo. His son swears to the affidavit in support of this application. It is said that the petitioner is carrying on business under the name and style of K.A.M.P. Meera Saibo and Brothers, Kandy, Ceylon. The deponent of the affidavit is a partner in the said Company. In respect of the income earned by the said firm in Ceylon, it is said that the said income was assessed in India to tax for the years 1950-1951 to 1957-1958. Even so, the firms liability to pay income-tax such income was also reckoned. It is said that the income earned in Ceylon was not remitted to India. The assessment proceedings for the years in question were finally concluded for the last year in about January 1964. It is admitted that a major portion of the income on which tax has been levied is relatable to income earned in Ceyeon. In or about, 1947, due to exchange control regulations which came into force in Ceylon, no money could be remitted from Ceylon to India without a permit obtained from the appropriate authorities for such remittance. The petitioners case is that in spite of his best efforts to secure such a remittance on due applications made by him for the purpose, he could not secure the amounts by way of repatriation to enable him to pay the tax in India. The respondents, however, on the foot of the finalised assessment order, took recovery proceedings for the realisation of the amounts due from the petitioner as an assessee in default. In furtherance of such recovery proceedings, the properties of the petitioner in India were attached and brought to sale. The proclamation of sale proclaims that the petitioner is a defaulter under Sec. 220

(2) of the Income-tax Act, 1961. At this stage, when his Indian properties were about to be brought to sale pursuant to the aforesaid proclamation of sale, the petitioner has come before this Court for the issue of a writ of prohibition or such other appropriate direction to restrain the respondents from taking revenue recovery proceedings against him, as his main contention is that in view of the prevailing law, he cannot be deemed to be an assessee in default. The answer to this by the respondents is that it does not appear that the petitioner has taken all reasonable precautions and steps to see that he has approached the appropriate authority in Ceylon for the repatriation of funds from the other country to India, and if the petitioner had clearly explained the position, the authorities would not have refused remittance. It is on this ground the issue of the rule is opposed.

The petitioner, on being apprised of the attachment of his Indian property and the proposal to sell the same publicly pursuant to the proclamation of sale settled there for, applied to the Controller of Exchange, Department of Exchange Control, Central Bank of Ceylon, Colombo, for permission to purchase Indian currency representing the tax demanded by the Indian authority both in respect of the partners liability as well as the firms liability. This application was made on the 6th February, 1964, after the last assessment order was made for the last assessment year referred to above. The petitioner had to remind the Controller of Exchange several times and ultimately the Controller of Exchange replied on the 7th October 1964, stating “In terms of current exchange control procedure, investment income does not qualify for remittance. In the circumstances, we are unable to agree to the payment of land income-tax out of their Ceylon funds”. It is on this basis that the petitioner contends that he cannot be treated as an assessee in default.

The provisions which govern the situation have been considered in more than one decision of our Court and it would be sufficient for us to notice them in brief. Sec. 45 of the earlier Indian Income-tax Act, 1922, which corresponds to Sec. 220 of the later Act, 1961, deals with recovery of the tax and penalties. The proviso to Sec. 45, which