TMI Blog1953 (12) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... ver 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 ₹ 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 ₹ 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 ₹ 100 and also the fact that the appeal had ended in his favour. In that letter he added : I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal, but in the case of an assessee under sub-section (3) of the section it is required that the appeal should be preferred in the prescribed form and verified in the prescribed manner and shall except in the case of an appeal referred to in sub-section (2) that is an appeal by the Commissioner, be accompanied by a fee of ₹ 100. The argument that the said section is ultra vires the Legislature under the Government of India Act, 1935, is founded on the language of item 59 in List 1 in the Federal Legislative List in the Seventh Schedule to the Act. It confers authority on the Dominion Legislature to legislate Fees in respect of any of the matters in this List, but not including fees taken in any Court. Under item 5 of the said List it was empowered to legislate with reference to taxes on income other than agricultural income. It would therefore have power to enact the provision relating to fees in respect of income-tax unless it be that the power is excluded by the latter part of item 59 under which the power to enact laws relating to fees leviable in any Court is excluded from the List. That exception would apply, if the section requiring fee to be paid when an appeal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Federal Commissioner of Taxation ([1931] A. C. 275,295,296,297).) (1) A Tribunal is not necessarily a Court in the strict sense because it gives a final decision, (2) nor because it hears witness on oath, (3) nor because two or more contending parties appear before it between whom it has to decide, (4) nor because it gives decisions which affect the rights of subjects, (5) nor because there is an appeal to a Court, (6) nor because it is a body to which a matter is referred by another body. Shell Co. of Australia v. Federal Commissioner of Taxation ([1931] A. C. 275,297). Shells case ([1931] A. C. 275,297) was concerned with interpretation of the Constitution of Australia. Under Section 71 of the Constitution a restriction was imposed on the legislative power of the Parliament that it should vest the judicial power of the Commonwealth only in a Federal Supreme Court and other Federal Courts which the Parliament creates. The judges of such Courts could be appointed only for life and not for a term. Under the Income-tax Assessment Act, 1922, a Board of Appeal, was established to hear appeals against the assessment orders, but the members were appointed for a term of seven years. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise of the determination of the assessments made by the Income-tax Department, but in that event, as an appeal is merely a continuation of an original proceeding, it does not acquire any higher judicial status to equate it to a Court, notwithstanding the fact that it is a tribunal independent of the Commissioner of Income-tax. Under Section 37 of the Income-tax Act it is no doubt true that the authorities therein referred to including the Income-tax Officer, and the Appellate Tribunal were vested for the purpose of that Chapter with the same powers as are vested in a Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters, namely (a) enforcing the attendance of any person and examining him on oath or affirmation (b) compelling the production of documents and (c) issuing commissions for the examination of witnesses, and the proceeding is deemed to be a judicial proceeding within the meaning of Section 193 and 228 and for the purposes of Section 196 of the Indian Penal Code. But this section has not the effect of converting an Appellate Tribunal by reason of some of the powers exercisable by a Court under the Civil Procedure Code, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle which is modelled on the lines of the American Constitution has been the subject-matter of several decisions of the Supreme Court of the United States, and also after the Constitution came into force by the Supreme Court of our country. It is needless to refer to all the decisions which laid down the principles. As pointed out by Jennings, Equality before the law means that among equals the law should be equal and should be equally administered, that like should be treated alike. Class legislation discriminating against some and favouring others is prohibited; but legislation which in carrying out a public purpose is limited in its application is not prohibited if within the sphere of its operation it affects alike all persons similarly situated. See Power Mfg. Co. v. Saunders ([1927] 274 U. S. 490). But a classification if reasonable and is not arbitrary and is reasonably related to the object or the purpose for which the classification is introduced is not prohibited. Law in the ordinary sense is not confined merely to the substantive law but includes also the procedural law. The classification on which the Income-tax Act proceeds is the classification into persons who ..... X X X X Extracts X X X X X X X X Extracts X X X X
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