A.K.SIKRI,J. - (1.) By amendment in the Income Tax Act, 1961 (hereinafter referred to as the 'IT Act') in the year 1998, Section 260A was inserted providing for statutory appeal against the orders passed by the Income Tax Appellate Tribunal. In this very Section, under sub-section (2)(b), court fees on such appeals was also prescribed which was fixed at Rs.2,000/-. However, sub-section (2)(b) of Section 260A prescribing the aforesaid fee was omitted by amendment carried out in the said Act, with effect from June 01, 1999. It was presumably for the reason that insofar as court fee payable on such appeals are concerned, which are to be filed in the High Court, it is the State Legislature which is competent to legislate in this behalf.
(2.) In the State of Kerala, the law of court fee is governed by the Kerala Court Fees and Suits Valuation Act, 1959 (hereinafter referred to as the '1959 Act'). Section 52 thereof relates to the fee payable in appeals. Thus, with the omission of clause (b) of sub-section (2) of Section 260A of the IT Act, fee became payable on such appeals as per Section 52. The State Legislature thereafter amended the 1959 Act by Amendment Act of 2003 and inserted Section 52A therein, which was passed on March 06, 2003. In fact, before that an Ordinance was promulgated on October 25, 2002 which was replaced by the aforesaid Amendment Act, the Act categorically provided that Section 52A is deemed to have come into force on October 26, 2002. As per the amended provision, viz. Section 52A of the 1959 Act, the fee on memorandum of appeals against the order of the Income Tax Appellate Tribunal or Wealth Tax Appellate Tribunal is to be paid at the rates specified in sub-item (c) of item (iii) of Article 3 of Schedule II. This sub-item (c) reads as under: (c) Where such income exceeds two lakh rupees One percent of the assessed income, subject to a maximum of ten thousand rupees.
(3.) The question that arose for consideration before the High Court in the impugned judgment, against which these appeals arise, was payment of fee as per the aforesaid schedule on the appeals that are filed on or after October 26, 2002. As per the State of Kerala, on all appeals which are filed against the order of Income Tax Appellate Tribunal or the Wealth Tax Appellate Tribunal on or after October 26, 2002, fee is payable as per the aforesaid amended provisions. The appellant herein, however, contend that in all those cases which were even pending before the lower authorities, i.e. the Assessing Officer, Commissioner of Income Tax (Appeals) or Income Tax Appellate Tribunal and orders were passed even before October 01, 1998, the right to appeal had accrued with effect from October 01, 1998 and, therefore, such cases would be governed as on the date when the orders were passed by the lower authorities and the court fee would be payable as per the unamended provisions. The High Court has not accepted this plea of the appellant and has held that any appeal 'filed' on or after October 26, 2002 shall be governed by Section 52A of the 1959 Act.;