1967 (3) TMI 33

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....y the second respondent. Writ Petition No. 1401 of 1963 is for the issue of a writ of cetiorari or any other appropriate writ to quash the proclamation of sale dated October 14, 1963, issued by the second respondent. The first respondent in all these cases is the Income-tax Officer, Tuticorin. The facts in these petitions are not in dispute. The petitioner in the status of a "resident and ordinarily resident" was subject to tax of about Rs. 12,36,537 in respect of his foreign income in Ceylon for the years 1943-44 to 1956-57. The relative orders of assessments having become final, the departmental authorities started recovery proceedings and attached certain properties in India said to belong to the petitioner. Pursuant to such coercive pr....

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.... taxable territories, the Income-tax Officer shall not treat the assessee as in default in respect of that part of the tax which is due in respect of that amount of his income which by reason of such prohibition or restriction cannot be brought into the taxable territories, and shall continue to treat the assessee as not in default in respect of such part of the tax until the prohibition or restriction is removed. Explanation. - For the purpose of this section income shall be deemed to have been brought into the taxable territories if it has been utilised or could have been utilised for the purposes of any expenditure actually incurred by the assessee without the taxable territories or if the income whether capitalised or not has been brou....

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.... satisfy the revenue as well as this court that he could not obtain sanction for remittance from the authorities in Ceylon. Before us, again, the petitioner referred to the correspondence already relied upon by him and in particular drew our attention to two letters which we shall presently consider. After the judgment in Writ Petition No. 99 of 1961 was rendered on March 4, 1963, the petitioner wrote on October 28, 1963, requesting the exchange control department, Ceylon, for grant of permission to secure the sum of Rs. 12,36,542.59 from Ceylon which, according to him, was payable as tax in India. The Central Bank of Ceylon replied on November 13, 1963, as follows : "Reference your letter dated 28th October, 1963, and to subsequent interv....

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....tion 45 to his benefit or advantage. There is considerable force in this contention. No doubt, it cannot be said that the petitioner is negligent, fraudulent or colluding with the authorities at Ceylon in the matter of the remittance of funds therefrom to India. As pointed out in Muthuwappa v. First Additional Income-tax Officer : "If an assessee by negligence, collusion or fraud does not get the permit and, therefore, is not able to remit money to the taxable territory, it cannot be said that his inability to bring money into the said territory is by reason of such prohibition or restriction." Notwithstanding the absence of such telling features like fraud, collusion or negligence, we are not satisfied that the attempts thus far made by ....