MALIK, J. - (1.) THIS is a reference under Section 21, Excess Profits Tax Act read with Section 66 (1), Income -tax Act. The assessee firm Messrs. P. Stanwill and Co. is a partnership firm and the partners work as auctioneers in the city of Kanpur. During the chargeable accounting period 1943.44 the assessee's income from this business amounted to Rs. 94,284. The Excess Profits Tax Officer considered that excess profits tax was leviable on the profits of the business made during the accounting period. The assessee, on the other hand, challenged their liability on the ground that they were carrying on a profession and the profits depended mainly upon their personal qualifications. A suggestion was also made on behalf of the department that the profession consisted wholly or mainly in the making of contracts on behalf of other persons. There were thus three points raised: firstly, whether the assessee carried on a profession; secondly, whether in that case the profits depended mainly on their personal qualifications and, lastly, whether the profession consisted wholly or mainly in the making of contracts on behalf of other persons.
(2.) THE first and the third points were decided in favour of the assessee. The second point was decided against the assessee. The assessee alone asked for a reference to this Court. The assessee formulated the question as follows: 'Whether in the circumstances of the case the activity of auctioneers conducted as profession did not depend wholly or mainly on the personal qualification of the partners?' The Tribunal, however, changed the form of the question and the question referred to us is in these terms : 'Whether in the circumstances of the case, the income of the applicant derived from their activity of auctioneer's profession depend wholly or mainly on the personal qualifications of the partners of their firm as contemplated by Section 2 (6)?'
(3.) LEARNED counsel for the assessee has urged that the Tribunal in deciding the question whether the income of the assessee depended mainly on the personal qualifications of the partners of the assessee firm has not based its finding on the facts found by it in its appellate order but has decided the question on the general but irrelevant consideration that in India auctioneering is not a profession which required any particular qualification and there being no law requiring a person to take out a licence any one may set himself up as an auctioneer.;