UPADHYA, J.

( 1 ) THE questions referred for the opinion of this Court are1. 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 assessees appeal to the Appellate assistant Commissioner was unsuccessful as the le