Judgement

BOSE J.: This appeal comes from Bombay. It raises two questions under the Excess Profits Tax Act.1940. The first concerns R. 5 of Sch. II of the Act and the other raises a question about the managing agency commission due to the managing agents of the assessee company.

2. The assessee is the Shri Ram Mills Limited of Bombay. The assessment year is 1945-46 and the accounting year, the calendar year 1944. The Income-tax Officer assessed the profits for income-tax at Rs. 46,18,384 and that is not questioned.

3. The Excess Profits Tax Officer computed the profits, for Excess Profits Tax purposes at Rs. 46,94,304. In reaching this figure be excluded certain items in the return for determining how the profits increased the capital; for example, he excluded moneys given away as presents and in charity etc.

4. Now in order to determine the quantum of excess profits tax payable by an assessee it is necessary under the Act to compute, among other things, the average amount of capital employed by the business during a certain period. This under S. 2(3), has to be the average amount of capital "as computed in accordance with the second Schedule." That brings in the disputed rule, Rule No