SATYANARAYANA RAO, J.

The petition was argued by the petitioner in person with considerable ability and learning. He prayed in the petition that this Court should issue an order or direction to the respondent, the Commissioner of Income-tax, Madras, to refund the sum of Rs. 100 paid by the petitioner as fee under Section 33(3) of the Indian Income-tax Act, and to declare under Article 226 of the Constitution of India that the portion of Section 33(3) relating to payment of fee is illegal

In the affidavit in support of the petition it was stated that the petitioner was assessed to income-tax in respect of his personal income by the Second Additional Income-tax Officer, Salaries Circle, Madras, on the dividend warrants received by him from agricultural companies. He preferred an appeal against that assessment to the Appellate Assistant Commissioner of Income-tax who however confirmed the decision of the Income-tax Officer. There was a further appeal to the Income-tax Appellate Tribunal. As required by sub-section (3) of Section 33 of the Indian Income-tax Act he paid the required fee of Rs. 100 as a condition for preferring the appeal to the Appellate Tribunal. The Appellate Tribunal allowed the appeal upholding the contention of the petitioner that the dividends received by the assessee shareholder were not liable to tax. He requested the Tribunal to award him costs as he was successful, or in any event, to refund the fee paid by him, namely, the sum of Rs. 100 as the appeal terminated in his favour. The Tribunal, as is obvious, has no jurisdiction to award costs, as there is no provision in the Indian Income-tax Act to award costs. It could not even direct the refund of the fee paid, as there is no power. Thereafter the petitioner wrote a letter to the Commissioner of Income-tax, Madras, requesting him to direct refund of the fee actually paid by him. In that letter he pointed out the circumstances under which he deposited the sum of Rs. 100 and also the fact that the appeal had ended in his favour. In that letter he added

" I am sure you will agree that a principle of some importance is involved here. To my mind it is a matter of elementary justice that a party put to expenditure by reason of a decision, adjudged to be wrong by a lawfully constituted authority, be paid back his costs. In all civil proceedings this is ordinarily done, no exception being made in favour of Government or any department of Government. " *

To this letter there was no reply from the Commissioner of Income-tax. He thereafter filed this application under Article 226 of the Constitution

Though in the affidavit filed in support of the petition, the petitioner impugned Section 33(3) as being illegal and void as it contravened Article 14 of the Constitution of India, in the arguments he raised the further contention that the Central Legislature when it enacted the section had no power to levy the fee. The section was enacted, it may be remembered when the Government of India Act, 1935, was in force. The contentions raised before us therefore were twofold: (1) that the impugned section was ultra vires the Legislature under the Government of India Act, 1935, and (2) that in any event, it was opposed to the principle of equality before law and equal protection of laws guaranteed to a person under Article 14 of the Constitution

Section 33 of the Income-tax Act was introduced by the amending Act, 1939, under which the Income-tax Appellate Tribunal was for the first time constituted. The Appellate Tribunal is to consist of as many persons as the Central Government thinks fit to appoint to exercise the functions conferred upon the Appellate Tribunal by the Act. The Appellate Tribunal should consist of Judicial Members and Accountant Members as defined by the Act. Under Section 33, an appeal is provided for against an order of an Appellate Assistant Commissioner under Section 28 or Section 31, and it should be preferred within 60 days from the date on whic