MALIK, CJ.:- This case has been referred to a Full Bench on a difference of opinion.

2. Proviso (2) to S.66-A, Indian Income-Tax Act is to the effect that when there is a difference of opinion between the Judges hearing a reference the point of law upon which they differ and the case shall then be heard upon that point only by one or more of the other Judges of the High Court and such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. By reason of this proviso we had some doubts whether one of us who was a member of the Division Bench should be on this Full Bench but Mr. Pathak on behalf of the assessee has urged that the proviso only refers to a case where a point of law has been referred for decision and, in such a case, the opinion of the Judge to whom the point has been referred has to go back to the Bench which had heard it and the order has to be passed by it. But that where the whole case has been referred to a new Bench this proviso does not apply and that we can hear the whole reference afresh and give our own decision. This view has been supported by Mr. Jagdish Swarup, counsel for the other side, and both the learned counsel have made a request that even if there be any irregularity they are waving the same and have prayed that the case may be heard and decided by this Bench.

3. Proceeding now to the reference itself, the facts are very simple. Shyam Lal Prag Narain is a firm carrying on business in Agra. On some date prior to the year 1935 the assessee firm had agreed to pay commissions at the rate of 12 per cent to the Manager and 3 per cent to the Assistant Manager. There was no written agreement but commissions at these rates were calculated on the profits without deducting income-tax and payments were made of the amounts thus worked out. On 6-4-1940, the Excess Profits Tax Act received the assent of the Governor General and came into force. The Commissions were calculated upon 31-12-1941, and paid on the profits made without deducting income-tax or excess profits tax. The same procedure was followed the next year and commissions were worked out on the same basis on the profits made upto 31-12-1942, and paid to the Manager and the Assistant Manager. The total amount paid as commission was treated as an allowable deduction from the income for payment of Income-tax and Excess Profits Tax and no objection was raised by either the Income-tax Officer or the Excess Profits Tax Officer.

4. In the year 1943 the assessee firm made a profit of Rs.4,58,957/- and paid commissions to the Manager and the Assistant Manager totalling a sum of Rs.68,842/-. The sum of Rs.4,58,957/-was the total profit without deducting the income-tax or the excess profit tax payable. The Income-tax Officer accepted the contention of the assessee that the sum of Rs.68,842/- was an allowable deduction under S.10 Indian Income-tax Act, but whether he allowed the deduction under S.10(2) (X) or 10(2) (XV) of the Act is not clear and the counsel for the parties are not agreed on the point. The Excess Profits Tax Officer, however, while accepting the figure that had been worked out by the Income Tax Officer disallowed a sum of Rs.33,525/- out of the sum of Rs.68,842/- paid by the assessee firm to the Manager and the Assistant Manager.

5. The assessee appealed to the Tribunal but the appeal failed. The Tribunal thereupon referred the following two questions for decision to this. Court: "(1) Whether in spite of the fact that according to the pre-existing practice commission had been allowed on the net profits of the paying firm at the rate of 12 per cent and 3 per cent respectively before dedcution of the tax, under R.12 Sch. 1 E.P.T. Rules, the Excess Profits Tax Officer was legally justified in holding that the Excess Profits Tax payable on its profits by the assessee firm should have been deducted before calculating the commission payable at fixed percentage on