(1.) THE petitioner in O.P. No. 3198 of 1979 is the appellant in this writ appeal. THE appeal is from the judgment of a learned single judge dismissing the original petition, negativing the plea of the appellant that the imposition of interest under Section 139(8) of the Income-tax Act without notice to the appellant, is illegal.
(2.) WE are concerned with the assessment years 1973-74 and 1974-75. The appellant, an assesses to income-tax, did not file returns for the above two years, though he was served with notices under Section 148 of the Income-tax Act. The assessments were made under Section 144 of the Act. Interest under Section 139(8) of the Act was levied for both the years as per exhibits P-1 and P-2 assessment orders. A challenge against the levy of interest under Section 139(8)(a) of the Act made before the Commissioner of Income-tax was not successful. The Commissioner of Income-tax dismissed the revisions filed by the assessee as per exhibit P-6 order dated May 24, 1979. In the original petition the appellant challenged exhibit P-4 order refusing to waive the interest levied as also exhibit P-6 order passed in revision. The learned single judge dismissed the original petition. Thereafter, this writ appeal is filed.
(3.) THE proviso to Section 139(8)(a) provides that the Income-tax Officer may, in such cases and in such circumstances as may be prescribed, reduce or waive the interest payable by an assessee. THE prescription mentioned in the proviso is contained in Rule 117A of the Income-tax Rules, 1962. It should be stated that the proviso to the sub-section envisages the reduction or waiver of the interest payable by the assessee. So also Rule 117A visualises the reduction or waiver of the interest payable by the assessee. So, the arguments of the appellant's counsel that it is mandatory to serve a notice on the assessee, even before the levy of interest under Section 139(8)(a) of the Act, does not prima facie appear to be justified. Construing Section 139(8)(a) along with proviso with Rule 117A of the Income-tax Rules, we are of the view that though it may be to open the Income-tax Officer to intimate the assessee even before the "levy" is made, it is open to the assessee even after the "levy" is made, to invoke the jurisdiction of the Income-tax Officer under the proviso to Section 139(8)(a) of the Act, read with Rule 117A, to waive or reduce the interest " payable ". It cannot be stated that in the absence of a notice and hearing, the levy itself cannot be made under Section 139(8)(a) of the Act.