TMI Blog1996 (5) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... on 139(8) could not have been charged without any specific order for payment of interest in the assessment order ? 3. Whether, on the facts and in the circumstances of the case, is the Income-tax Officer statutorily required to afford an opportunity to the assessee before levy of interest under section 139(8)?" The material facts are as follows : The assessee filed a return for the assessment year 1978-79 on April 23, 1980, i.e., beyond time. Earlier, at his request, time for filing return had been extended to September 30, 1978. After completing the assessment a notice of demand for Rs. 6,160 which included the sum of Rs. 3,060 as interest under section 139(8) of the Act for late filing of the return was issued. The assessee preferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bles the assessee to produce evidence to satisfy the Assessing Officer that he was prevented by sufficient cause from furnishing the return within time. The submission of counsel was that if the law gives an opportunity to the assessee to produce evidence and satisfy the Assessing Officer regarding sufficiency of cause, such opportunity would be rendered nugatory if the same is not afforded at the initial stage. It was contended that the effect of omission to give opportunity of hearing at the initial stage cannot be remedied by giving the same at the later stage. In Central Provinces Manganese Ore Co. Ltd. v. CIT [1986] 160 ITR 961, which is a decision of the Supreme Court, the apex court has held that interest is levied under section 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther appeal under section 246 of the Act was maintainable before the Commissioner without the assessee having filed the application for waiver/reduction of interest. That may be so, but the observations referred to above, in our opinion, hardly leave any room for doubt that the omission to give the opportunity before making the levy cannot be said to be fatal. If in terms of what the apex court has said, an application for reduction/waiver can be filed afterwards also it cannot be said to be a pre-condition of the levy. In fact, if the assessee has not made such an application before the Assessing Officer, his appeal/revision against such levy would not be maintainable. Had such opportunity been a pre-condition or pre-requisite of the levy, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 139(8) of the Income-tax Act. The High Court had held that the provisions of rule 117A of the Income-tax Rules imply that opportunity should be given to the assessee to show cause why no interest should be levied and as in the case under reference there was no opportunity given, the notices were liable to be quashed. The full text of the judgment of the Andhra Pradesh High Court is not before us. We do not, thus, know as to what were the facts of that case and the rationale in coming to that conclusion. Even if it be assumed that the Andhra Pradesh High Court had held that such an opportunity was a pre-condition or pre-requisite of levy of interest, merely because special leave petition challenging the said decision was rejected by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that levy of interest is a part of the assessment process. The Income-tax Officer in the present case while determining the tax liability of the assessee had passed a separate order regarding levy of interest. We do not think that mere non-mention of the specific provision under which the interest is charged goes to the root of the matter and makes the order bad. We, accordingly, do not think that in the facts and circumstances of the case, the Tribunal was justified in holding that the interest could not have been charged as no specific order to that effect has been passed in the assessment order. The answer to the said question also, therefore, has to be in the negative. Questions Nos. 2 and 3 having, thus, been answered in the negati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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