Just a moment...

Top
FeedbackReport
×

By creating an account you can:

Logo TaxTMI
>
Feedback/Report an Error
Email :
Please provide your email address so we can follow up on your feedback.
Category :
Description :
Min 15 characters0/2000
TMI Blog
Home / RSS

2017 (8) TMI 537

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....h 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....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....refore, this right becomes vested in a party when the proceedings are first initiated and before a decision is given, by the inferior court. Therefore, the relevant date for paying the court fee would be when the proceedings are initiated in the lowest court and not when the appeal is filed in the High Court. In support of this proposition, reliance is placed on the judgment of this Court in Hosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh And Others (1953 SCR 987) wherein the Court held as under: (i) that the appellant had a vested right to appeal when the proceedings were initiated, i.e., in 1947, and his right to appeal was governed by the law as it existed on that date; (ii) that the amendment of 1950 cannot be regarded as a mere alteration in procedure or an alteration regulating the exercise of the right of appeal, but whittled down the right itself, and it had no retrospective effect as the Amendment Act of 1950 did not expressly or by necessary intendment give it retrospective effect, and the appeal could not therefore be rejected for non-payment of the tax in respect of which the appeal was preferred. 6) In that case, Section 22(1) of the Central Provinces ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....t court, it is easy to ascertain that date of filing which becomes governing date for the purpose of payment of court fee in respect of appeals, as vested right accrues on the date of filing of the initial court proceedings. How it is to be translated in tax matters? This was explained in Hardeodas Jagannath v. State of Assam and Others (1969) 2 SCR 261) by holding that the appeal provisions applicable in a tax matter for assessee would be the one as on date of assessment and not the one applicable during the assessment period. For revenue appeal, the same would be one as on the date disputed demand is negative by the appellate authority and not the one applicable during the period of assessment or as on the date of assessment. 8) On the aforesaid basis, it was argued by the counsel for both the assessees in these appeals that in all those cases where appeals were preferred by the assessee against the assessment orders, the provision relating to the payment of court fee which was prevailing on the date of assessment would be applicable. On the other hand, in those cases where Revenue preferred the appeals, the concerned date would be the date on which disputed demand was negatived....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....urt of Kerala, if at all. In any case, in the other appeals filed, if any, for the tax demands negatived by the appellate authorities prior to October 26, 2002, this issue of court fees does not appear to have been kept alive for grant of any effective relief. He cited few judgments in support of his submission that this Court should restrain itself from undertaking academic exercise and deciding the issue in question. 10) We are not inclined to accept the aforesaid plea inasmuch as the High Court has decided the issue in categorical terms. Therefore, it would be appropriate to reflect on the said decision and to find out as to whether this decision is correct in law. It is a different matter that after the legal position is clarified, the same can be applied in respect of those appeals which are covered thereby. 11) Hence, we proceed to decide the legal issue involved in these appeals. 12) We may mention at the outset that after referring to the judgments noted above even the High Court in the impugned judgment has accepted that right of appeal is not a matter of procedure and that it is a substantive right. It is also recognised that this right gets vested in the litigants at ....