It is not mandatory for the Income-tax Officer to issue notice and afford an opportunity to the assessee before the 'levy' of interest under S.139(8)(a) of the Income Tax Act.

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 O.P. negativing the plea of the appellant that the imposition of interest under S.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 assessee to Income-tax, did not file returns for the above two years, though he was served with notices under S.148 of the Income-tax Act. The assessments were made under S.144 of the Act. Interest under S.139(8) of the Act was levied for both the years as per Exts. P1 and P2 assessment orders. A challenge against the levy of interest under S.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 Ext. P6 order dated 24-5-1979. In the O.P. the appellant challenged Ext. P4 order refusing to waive the interest levied as also Ext. P6 order passed in revision. The learned Single Judge dismissed the O.P. Thereafter this writ appeal is filed.

3. We heard counsel for the appellant Mr. Muhammed. The sole question argued before us was that before levying the interest under S.139(8) of the Act the appellant should have been served with notice intimating the levy of interest and inviting, objections thereto. This has not been done. So Ext. P1 and Ext. P2 orders levying the interest as also Ext. P6 order passed in revisions are unauthorised and illegal.

4. Counsel for the appellant placed reliance on the proviso to S.139(8)(a) of the Act as also R.117A of the Income Tax Rules. We will extract S.139(8)(a) of the Act along with the Proviso, as also R.117A of the Income Tax R.1962.

"139. Return of income.

(8)(a) Where the return under sub-section (1) or sub-section (2) or sub-section (4) for an assessment year is furnished after the specified date, or is not furnished, then whether or not the Income-tax Officer has extended the date for furnishing the return under subsection (I) or sub-section (2), the assessee shall be liable to pay simple interest at (fifteen per cent) per annum, reckoned from the day immediately following the specified date to the. date of the furnishing of the return, or. where no return has been furnished, the date of completion of the assessment under S.144, on the amount of the tax payable on the total income as determined on regular assessment, as reduced by the advance tax, if any, paid and any tax deducted at source:

Provided that the Income-tax Officer may, in such cases and under such circumstances as may be prescribed, reduce or waive the interest payable by any assessee under this sub-section."

"117A. Reduction or waiver of interest payable under S.139.

The Income-tax Officer may reduce or waive the interest payable under S.139 in the cases and in the circumstances mentioned below, namely:

(i) where the return of income is furnished by a person who has been treated under S.163 as an agent of a non-resident and is assessed in respect of the latters's income;

(ii) where the return of income is furnished by an assessee whose only source of income during the relevant previous year is a share in the income of an unregistered firm which has been assessed on its total income in respect of that previous year under clause (b) of S.183;

(iii) where the return of income of a deceased individual is furnished by his legal representative and the legal representative satisfies the Income-tax Officer that he had sufficient cause for not furnishing such return within time;

(iv) where the return of income has been furnished in pursuance of a notice issued under S.148;

(v) in any case in which the assessee produced evidence to the satisfaction of the Income-tax Officer that he was prevented by sufficient cause from furnishing the return within time:

Provided that the previous approval of the Inspecting Assistant Commissioner has bee