The Commissioner has jurisdiction to revise an assessment under Section 263 of the Income-tax Act, 1961, even after the order of the Appellate Assistant Commissioner confirming the assessment, if the question of whether the interest should be charged or not was not one of the orders in which the assessee had a right of appeal under Section 246 of the Act.

Sabyasachi Mukharji, J.

1. IN this application under Article 226 of the Constitution, the petitioner challenges the notice under Section 263 of the INcome-tax Act, 1961, issued by the Additional Commissioner of INcome-tax, West Bengal-Ill, for the assessment year 1968-69. The assessee submitted his return for the assessment year 1968-69 on the 14th of May, 1969. Therefore', under proviso (iii) of Sub-section (1) of Section 139, the petitioner was liable to pay penal interest for the period 1st of January, 1969, to 14th of May, 1969, at the rate of 9% per annum on the amount of tax payable in the status of unregistered firm for the said assessment year. Under Sub-section (8) of Section 139, the INcome-tax Officer had discretion to reduce or waive the interest payable in accordance with law and under conditions mentioned under Rule 117A of the INcome-tax Rules, 1962. The INcome-tax Officer did not charge any interest in terms of Section 139(1) of the said Act. According to the petitioner interest was not charged because of the demise of the two senior partners of the petitioner-firm. According to the petitioner the representation of the petitioner was duly submitted before the assessing INcome-tax Officer that the delay of four and a half months for filing the return was only because of the situation created by the death of its partners. The INcome-tax Officer, according to the petitioner, was satisfied with the explanation and, therefore, waived the said interest. From the order passed by the INcome-tax Officer it is not manifest whether he at all considered this aspect of the matter or whether there was conscious or deliberate waiver on the part of the INcome-tax Officer of the liability of the petitioner to pay interest. The petitioner preferred an appeal before the Appellate Assistant Commissioner and the Appellate Assistant Commissioner passed an order on the 31st of January, 1973, confirming the assessment. On the 22nd of February, 1974, the impugned notice was issued by the Additional Commissioner of INcome-tax, West Bengal-Ill. IN the said notice the Additional Commissioner of INcome-tax, West Bengal-Ill, stated as follows:

"It appears from the assessment records of Messrs. Premchand Sita-nath Roy (URF) that the assessee submitted its return of income for the assessment year 1968-69 on May 14, 1969. It was, therefore, liable to pay penal interest under Section 139(1) of the INcome-tax Act, 1961, for the period January 1,1969,10 May 14, 1969, at the rate of 9% per annum on the amount of tax payable in the status of unregistered firm for the said assessment year. The INcome-tax Officer who made the assessment under Section 143(3) of the INcome-tax Act, 1961, on March 3, 1972 for the said assessment year failed to charge the said interest. The records do not show any reason for waiver of the said interest by the INcome-tax Officer in accordance with the provisions of Section 139(8) read with Rule 1I7A of the INcome-tax Rules, 1962. The order of assessment as passed by the INcome-tax Officer without charging the said interest thus appears to be erroneous and prejudicial to the interest of revenue.

I, therefore, propose to pass such orders thereon under Section 263 of the INcome-tax Act, 1961, as the circumstances of the case may justify, including an order enhancing or modifying the said assessment or cancelling the said assessment and directing the INcome-tax Officer to make a fresh assessment according to law.

Before, however, I do so I hereby give you an opportunity to appear before me on February 28, 1974, at 11 a.m. at my office at P-7, Chowringhee Sq., Calcutta-l, and show cause why the proposed order under Section 263 of the INcome-tax Act, 1961, should not be made. If you do not wish to avail yourself of this opportunity of being heard in person or through your authorised representative you may show cause in writing on or before the said date which will be considered before any such order is made under Section 26