G. Sivarajan, J.

An important question as to the retrospective effect of Section 52A of the Kerala Court Fees and Suits Valuation Act, 1959 (hereinafter referred to as ‘the Act’) inserted by the Kerala Court Fees & Suits Valuation (Amendment) Act, 2003 providing for court fee payable on memorandum of appeal filed before the High Court against the orders of the Appellate Tribunal, both under the Income Tax Act and under the Wealth Tax Act calls for determination in all these cases.

2. The question arises this way. All these appeals are filed by the Commissioners of Income tax, Kochi, against the orders of Income Tax Appellate Tribunal, Cochin Bench after the coming into force of Section 52A of the Act. Only a court fee of Rs.10/- was paid on all these appeals. The office has raised objection stating that in all appeals filed after the insertion of Section 52A of the Act, court fee has to be paid as provided under Section 52A r/w sub-item (C) of item (iii) of Article 3 of Schedule II to the Act. The standing counsel for the Income Tax department filed objection and maintained that only a court fee of Rs.10/- is to be paid on the appeals. The appellants took the stand that they have a vested right of appeal under Section 260A of the Income tax Act from 1.10.1998; once an assessee files an appeal before the first appellate authority on or after 1.10.1998 as against an assessment the law with regard to the appeal and court fee should be as on the date on which a vested right is inhered in a party from the commencement of the action in the court of first instance and such right cannot not be taken away except by an express provision or by necessary implication. The revenue has also relied on the decision of the Supreme Court in H.K. Dada (India) Ltd. v. State of M.P. (AIR 1953 SC 221) and in State of Bombay v. M/s S.G. Films Exchange (AIR 1960 SC 980). It is stated that in the light of the principles laid down by the Supreme Court in the above decisions, since, at the time of introduction of Section 260A on 1.10.1998, the revenue was exempted from payment of court fee, the vested right of the revenue to file an appeal without payment of court fee continues till its culmination. It is also stated that the liability of the revenue to pay court fee could arise only in cases where the appeals are filed by the assessees before the first appellate authority on or after 6.3.2003. The revenue had accordingly sought for a declaration that the liability of the revenue for payment of court fee both under the Income tax Act and under the Wealth Tax Act would arise only in such cases where first appeals are filed by the assessees on or after 6.3.2003.

3. In view of this objection raised by the appellants, an order was passed on 2.6.2003 in unnumbered I.T.A. of 2003 arising out of I.T.A. No.110/Coch/98 of the Income tax Appellate Tribunal, Cochin Bench as follows:

“After reading the objection, we are of the view that the question regarding payment of court fee, in the circumstances, requires consideration. Hence we order notice on this question to the Advocate General. We also request Sri. Balachandran, Advocate, also to look into the matter and assist the court”.

4. Subsequently the Government Pleader for the State has filed a statement. It is stated therein that Section 52A inserted in the Kerala Court Fees and Suits Valuation Act, 1959 by the Kerala Court Fees and Suits Valuation (Amendment) Act, 2003 (Act 2 of 2003) applies to all appeals covered by the said Section with effect from 26.10.2002. It is also stated that the wording of Section 52A itself indicates the above intention since the words employed are “memorandum of appeal filed”. It is further stated that judicial verdicts holding that in respect of proceedings initiated before the amendment court fee on the basis of an amended provisions alone need be paid in spite of amendment providing for higher court fee, have been rendered on an interpretation of Section 52 of the Princip