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“30. As we have already held the State Legislature had clearly manifested is intention by the use of the expressions “fee payable on a Memorandum of Appeal filed” in Section 52a. The vested right of appeal subsequently conferred under Section 260A of the Income Tax Act is so far as payment of court fee is concerned is taken away by necessary implication. In other words, the provision of section 52A of the Court Fees and Suits Valuation Act inserted by the Amendment Act of 2003 in that sense has retrospective operation thereby affecting the earlier assessment also.

31. We accordingly hold that in all appeals filed by the Commissioner of Income tax or in any appeal to be filed either, by the Revenue or by the assessee under the Income Tax Act and under the Wealth Tax Act against the orders of the Income Tax Appellate Tribunal from 26.10.2002 Court fee is payable and has to be paid under Section 52A r/w Schedule II Article 3 item (iii) sub-item(C) of the Kerala Court Fees and Suits Valuation Act, inserted by the Kerala Court Fees and Suits Valuation (Amendment) Act, 2003 the view expresses in the office note is sustained and the objection raised by the appellant to the contrary is overruled. We place on record our deep appreciation for the valuable assistance rendered by Sri V.K. Beeran, learned Addl. Advocate General, Sri P.K.R. Menon, learned senior standing counsel for the Revenue and Sri P. Balachandran, who has been specially requested by the court for assistance.

32. Before parting with the matter, we would like to pint out something about legislative draftsmanship in enacting Section 52A and Schedule II Article 3 item (iii) sub-item (c) particularly to the Schedule portion inserted by the Kerala Court Fees and Suits Valuation (Amendment) Act, 2003. Section 52A provided for the court fee payable on the memorandum of appeal filed before the High Court against orders of the Income Tax Appellate Tribunal under the Income Tax Act and the Wealth Tax Act. Under the Income Tax Act, tax is on the total income assessed whereas under the Wealth Tax Act tax is on the net wealth assessed. Schedule II Article 3, item (iii) sub-item(C) though refers to both the enactments court fee is based on the 'total income' of the assessee and computed by the assessing Officer. How can it apply to appeals filed under the Wealth Tax Act where 'total income' has nothing to do with in the matter of assessment?