The distinction between a tax and a fee and the principles governing the levy of court fees.

V. S. DESAI, J.:-

This is a group of Income-tax applications, requesting this Court to direct the Income-tax Appellate Tribunal to draw up a statement of the case and to refer to this Court certain specified questions of law. In some of these applications, the aforesaid relief is claimed only under Sec.66(2) of the Indian Income-tax Act, while in others, the said relief is also claimed in the alternative by an appropriate writ or direction under Article 226 of the Constitution. All these applications have been filed after the Bombay Court-fees Act of 1959 (Bombay Act XXXVI of 1959) came into force on the 1st August 1959. Article 16 of the First Schedule of the said Act, hereinafter called the New Act has prescribed a fee to be paid on applications by the assessee under Sec.66 of the Indian Income-tax Act. Article 1(f) of the Second Schedule of the New Act has provided for fees to be paid on petitions or applications under Sec.45 of the Specific Relief Act, under Articles 226 and 227 of the Constitution and for other petitions and applications not otherwise provided for in the Act. In all these applications, contentions are raised as to the constitutional validity of the provisions of Article 16 of the First Schedule in the new Act, and also as to the applicability of the new Act to the present, applications. In view of the importance of the questions raised, and, in view of the fact that these questions are likely to arise in a large number of other applications also, we have set these applications for hearing only on those contentions. As we are not concerned with the merits of all these cases at the present stage, it is not necessary to state the fact out of which the applications arise. It may, however, be mentioned that the assessment proceedings out of which these applications arise had commenced a long time before the new Act was enacted and came into force.

2. In view of the contentions raised, notices were issued to the Advocate-General in some of these applications. The learned Advocate General has appeared and has requested that the State of Maharashtra should be added as party to these applications, and the affidavit which the State wants to file should be taken on record in reply to the contentions raised in the petition with which the State is concerned. In the other applications, in which notices have not been issued to the Advocate General, so far, the petitioners have undertaken to have such notices issued, and the learned Advocate General has stated that he would waive the service of the notices and appear in those cases also. He has made a request that in those matters also the State of Maharashtra should be made a party. It is also agreed that the affidavit which has been filed on behalf of the State of Maharashtra in some of the matters should be read as the affidavit in all the other matters also. During the course of the hearing, an affidavit n rejoinder has been filed by the petitioners, and a surrejoinder by the State. We have been requested to take these affidavits on records. We have granted all these requests and made orders accordingly.

3. Under the Income-tax Act, an advisory jurisdiction has been conferred on the High Court in connection with questions of law arising on certain orders passed by the Appellate Tribunal. Thus, where the Appellate Tribunal hears and decides an appeal which is preferred to it under Sec.33(1) of the Income-tax Act, and passes an order and communicates the same to the assessee and the Commissioner under Sec.33(4) of the Act, both the assessee and the Commissioner are entitled, under Sec.66, sub-section (1), to make an application to the Appellate Tribunal, within 60 days of the date on which notice of the order under section 33(4) is served on them, requiring the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and where such questions of law exist, the Appellate Tribunal is bound to draw up a statement of the case and re