UPADHYA, J. - (1.) THE questions referred for the opinion of this Court are - 1. Whether on the facts and circumstances of this case the oil mill is a commercial asset? 2. Whether from the facts and circumstances of this case the income arising oat of the letting out of the oil mill is an income from business within the meaning of Section 2 (5) of the Excess Profits Tax Act and hence taxable under the Act?
(2.) THIS case relates to assessments under the Excess Profits Tax Act for the chargeable accounting periods ending 12th September 1945 and 31st March 1946. The assessee runs a flour mill and during the chargeable accounting period immediately preceding those in question in this case he constructed an oil mill but instead of running it himself leased it out to Messrs. Krishan Mohan Bhuvan Shah. The rent received was subjected to income -tax under the Income -tax Act and there is no dispute about that assessment. The Excess Profits Tax Officer subjected that Income from lease to tax under the Excess Profits Tax Act, treating it as income from business on which alone excess profits tax could be levied. The assessee's appeal to the Appellate Assistant Commissioner was unsuccessful as the learned Assistant Commissioner held that the oil mill was a 'commercial asset' and income therefrom was income within the meaning of the Excess Profits Tax Act. This view was upheld by the Income -tax Appellate Tribunal. At the request of the assessee the questions mentioned above have been referred under Section 66(1) of the Income -tax Act read with Section 21. of the Excess Profits Tax Act for the opinion of this Court. In making the reference the facts set Out in the statement of the case were rather meagre and all the facts which were found or admitted and which would have enabled the Court better to answer the questions referred, were not stated. A supplementary paper -book was therefore submitted on behalf of the assessee which contains copies of the Appellate order of the Tribunal and the two orders of the Appellate Assistant Commissioner relating to the two chargeable accounting periods in question.
(3.) THE Appellate order of the Tribunal does not contain a detailed statement of the facts again, The assessee's contention in appeal appears to have been that the income from the hire of the oil mill was income from other sources and was not taxable under the Excess Profits Tax Act. The Tribunal, however expressed its concurrence with the view by the Appellate Assistant Commissioner who had found that the amount in dispute had been received by the assessee by hiring a commercial asset. The Tribunal also mentioned that it appears that allowance had been made against the income received as rent. The Tribunal referred to the decision of the Bombay High Court in Shree Laxmi Silk Mills Bombay v. Commissioner of Excess Profits Tax Bombay, : [1948]16ITR98(Bom) and observed that the decision in that case fully covered the present case.;