JUDGMENT V.R. Newaskar, J These are three second appeals under Section 13 of the Industrial Tax Rules, 1927, of Holkar State, Indore, which were in force in the former Holkar State region. The dispute relates to certain deductions claimed as allowable expenditure in computing assessment of income for the purpose of taxation and to certain income as not being an income taxable under the Rules aforesaid. The assessment years in respect of which the dispute pertains are the accounting years 1941, 1942 and 1943 of the concern known as Nandlal Bhandari Mills Limited, which is a joint stock Company registered under the Indore Companies Act, 1914 and carries on business of manufacturing textile goods. The Board of Assessors refused to deduct the expenditure, details whereof will be given hereafter, and treated certain income as one liable to tax under the Rules in question by their orders dated 29-7-1948 one relating to each of the accounting years in question. The appeals preferred against those orders, under the Rules, were heard by the Board of Revenue (Appellate Authority) who dismissed them. The Assessee-Company has preferred three separate appeals to this Court against those orders in appeal. As the questions involved in each of these appeals are more or less the same and the same considerations will apply in arriving at our conclusions with respect to those questions all the three appeals are being considered together and are being disposed of by this judgment. The questions in dispute are as follows: 1. Whether the commission paid to Secretaries, Treasurers and Agents under the Articles of Agreement by them with the Company is an allowable expenditure for the purpose of computing the tax under the Indore Industrial Tax Rules, 1927. This question is common in alt the three cases. Whether the commission paid to Shri Suganmalji Bhandari for the alleged work done by him for the Company in the accounting years 1941 and 1942 is an allowable expenditure for the same purpose under the Rules aforesaid. This question is involved in cases relating to the years 1941 and 1942 only. Whether the alleged profit made by the sale of boiler amounting to Rs. 5,173 in the year 1941 and Rs. 4,124 in the year 1942, can be treated as income liable to tax under the Rules aforesaid. This question is involved in the cases as relating to the years 1941 and 1942 only. Whether the alleged profit made by the sale of boiler amounting to Rs. 5,173 in the year 1941 and Rs. 4,124 in the year 1942, can be treated as income liable to tax under the Rules aforesaid. This question is involved in the cases as relating to the years 1941 and 1942 only. Whether the income derived from rent of building belonging to the Company and situated at Kalyan outside the limits of Holkar State can be treated as income liable to tax under those Rules. This is involved in cases relating to years 1941 and 1943 only. All these questions were answered both by the Board of Assessors and the Board of Revenue, Madhya Bharat against the Assessee-Company. It was held by the Board of Revenue: 1. That in view of Shree Shankar Order No. 173 dated 29-6-1933 passed by His High-ness Maharaja Holkar, who promulgated the Rules in question in respect of the territory of his State, the deduction in respect of the commission paid to Secretaries, Treasurers and Agents in excess of minimum guaranteed commission could not be claimed. That the commission paid to Suganmalji was in proportion to profits and that for that reason it could not be treated expenditure necessary for earning profits because it is only on ascertainment of profits that the commission could be deter-mined. Secondly Shree Shankar Order No. 173 dated 29-6-1933 clearly indicates the payments made in proportion to profits cannot be treated as allowable expenditure and on the same analogy this commission too being paid in proportion to profits could not be allowed. That under Section 3(2) (vii) of the Industrial Tax Rules, provision is made for the extent upto which an allowance can be made for the sale of capital goods. In case the sale takes place above that limit, the excessive amount could not be allowed to be deducted. That the Company could not be allowed to blow hot and cold. The Company having included items of expenditure for the upkeep of Kalyan property in the years of assessment in question in the statements of accounts they could not be allowed to object to the inclusion of the income thereof as profit. The present appeals are directed against the decisions which involved one or more of these questions. In order to appreciate the contentions raised by Mr. Chaphekar for the Appellant-concern as regards questions Nos. The present appeals are directed against the decisions which involved one or more of these questions. In order to appreciate the contentions raised by Mr. Chaphekar for the Appellant-concern as regards questions Nos. 1 and 2 it will be useful to set out the Notification No. 13 dated 14-7-1933 issued by the Commerce and Industry Department on the strength of the order of the Maharaja Holkar called Shree Shankar Order No. 173 dated 29-6-1933. The Notification reads thus: In continuation of this office Notification No. 1 dated 3-2-1932 it is hereby published for the information of the mills and factories concerned that on submission of the Prime Minister's (Legal Department) report No. 25 dated 11-5-1933 His Highness the Maharaja is pleased to order (vide Huzur Shree Shankar Order No. 173 dated 29-6-1933) that the opinion of the Pull Bench of the High Court being that the Managing Agent's commission on profits is not an item of expenditure incurred solely for the purpose of earning the suit profit within the meaning of Rule 3 (2) (ix) of the said Industrial Tax Rules, and this being also the view of the Cabinet as expressed in their Resolution No. 1072 dated 28-8-1931 the aforesaid Cabinet Resolution be given effect to and the industrial tax due on the amount of the Managing Agent's commission on profits be recovered with effect from the date of the said Cabinet Resolution. This Notification was the subject-matter for consideration in Rajkumar Mills Ltd., Indore v. State of Madhya Bharat AIR 1953 M B 136 (F B). In that case this very question was involved. The facts of that case were that the Rajkumar Mills Ltd., had agreed to pay under the Managing agency agreement 16 per cent, on the net profits of the Company subject to a minimum amount of Rs. 25,000 per annum which had to be paid in any case. In the assessment year 1939 the total amount paid as commission to the Secretaries, Treasurers and Agents was Rs. 27,537. The Board of Assessors taxed the amount of profits in excess of Rs. 25,000 namely Rs. 2,537 on the ground that that was the sum which could not be said to have been paid solely with a view of making profit. 27,537. The Board of Assessors taxed the amount of profits in excess of Rs. 25,000 namely Rs. 2,537 on the ground that that was the sum which could not be said to have been paid solely with a view of making profit. It was contended in second appeal before the High Court that the amount could not be said to be otherwise than one incurred for the purpose of earning profits and the fact that profits had to be determined in order to enable the Agent to claim them was immaterial. While repelling this contention it was observed by the Full Bench as follows: This Notification makes it abundantly clear that His Highness the Maharaja ordered that the industrial tax due on the amount of the Managing Agent's commission on profits be recovered. This being an order of the Ruler, who enjoyed sovereign powers, that order is not open to challenge. This is a mandate emanating from a sovereign and as such has the force of Jaw. this Court has, therefore, no power to go behind the order and enquire as to whether the managing agent's commission on profits is an item of expenditure solely incurred for the purpose of earning profits or not. In this view of the matter the point at issue is concluded by Huzur Shree Shankar Order No. 173 dated 29-6-1933. Mr. Chaphekar contends before us that the order passed by His Highness should be taken to have been passed in his judicial capacity and not legislative capacity and that for that reason this Court could go behind the order and consider the propriety of the view expressed therein that the Managing Agent's commission on profits is not an item of expenditure incurred solely for the purpose of earning profits. The reason for suggesting that the aforesaid Shree Shankar Order No. 173 was passed by the Maharaja in his judicial capacity is that when the executive Government of Maharaja by Cabinet Resolution No. 1072 dated 28-8-1931 held the a foresaid amount taxable, the Assessee preferred a petition to the Maharaja Holkar and upon that petition being submitted the opinion of the Full Bench of the High Court was called for and thereafter the aforesaid order was passed. The Maharaja in doing so should be taken to have acted in his judicial capacity. This contention of Mr. Chaphekar to my mind is not sound. The Maharaja in doing so should be taken to have acted in his judicial capacity. This contention of Mr. Chaphekar to my mind is not sound. When in a case a question of controversial nature like this came up before the Maharaja and there was the Cabinet Resolution taking a certain view he wanted to ascertain the correct legal position. He secured opinion from the High Court. Thereafter however he passed an order the operative portion of which required the amount of industrial tax due on the amount of managing agent's commission on profits to be recovered from the date of the resolution. The order was couched in general terms and was not confined to any particular Mill. It was actually given effect to in the case of ail the Mills during the Holkar State regime. The object which appears to move the Maharaja to elicit opinion of the High Court was to enable him to lay down a rule which would generally be applicable. Having thus fortified himself with the opinion both of his Cabinet and that of the High Court, he directed to give effect to the Cabinet Resolution. The Cabinet Resolution as published in the Holkar Government Gazette dated 8-2-1932 clearly indicates that it was applicable to all the concerns which were subject to Industrial Tax under the law in question and was not confined to the case of Rajkumar Mills Ltd. It was this Cabinet Resolution which was the subject-matter of the order of the Maharaja. Both the contents of the aforesaid order of the Maharaja as well as the circumstances in which it was passed make it plain that by that order it was intended to lay down a rule for further compliance in all cases and emanated as it had done from the sovereign it had the force of law. It is therefore futile to contend that the order was merely judicial determination of a case. The question with regard to the nature of orders passed by the sovereign Ruler of an Indian State and its binding character came up for consideration before the Supreme Court more than once. In Ameerunnissa Begum's case A I R 1955 S C 352 (359) their Lordships in para. The question with regard to the nature of orders passed by the sovereign Ruler of an Indian State and its binding character came up for consideration before the Supreme Court more than once. In Ameerunnissa Begum's case A I R 1955 S C 352 (359) their Lordships in para. 15 of the report say: It cannot be disputed that prior to the integration of Hyderabad State with the Indian Union and the coming into force of the Indian Constitution, the Nizam of Hyderabad enjoyed uncontrolled sovereign powers. He was the supreme Legislature, the supreme judiciary and the supreme head of the executive, and there were no constitutional limitations upon his authority to act in any of these capacities. The 'Firmans' were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law Day, they would override all other laws which were in conflict with them. So long as a particular 'Firman' held the field, that alone would govern or regulate the rights of the parties concerned, though it could be annulled or modified by a later 'Firman' at any time that the Nizam willed. In the case reported in Director of Endowment Government of Hyderabad v. Akram Ali AIR 1956 S C 60 the aforesaid decision was followed. In para 10 of the report it was observed: Now the Nizam was an absolute sovereign regarding all domestic matters at that time and his word was law. It does not matter whether this be called legislation or an executive act or a judicial determination because there is in fact no clear cut dividing line between the various concerns of an absolute Ruler whose will is law. Whatever he proclaimed through his 'Firman' had the combined effect of law and the decree of the Court; See the judgment of this Court in Ameerunnissa Begum v. Mehboob Begum AIR 1955 S C 352 (359). These observations of their Lordships could properly be applied with greater force in the present case because what the Maharaja laid down was a matter of principle applicable to cases of all textile Mills run under Managing Agency agreement in the State to which the provisions of Industrial Tax Rules were applicable. What he laid down was the law and was not a decision of a case. What he laid down was the law and was not a decision of a case. As a sovereign Ruler in making a rule as one of law he could take care to inform himself by securing advice from such quarters as he deemed proper. But because he did so it cannot be said that he could not have exercised legislative function. I am therefore clearly of the view that the aforesaid Shree Shankar Order No. 173 dated 29-6-1933 had the force of law and it is therefore not possible to go behind that order to examine the reasoning on which it was based. Right or wrong that was the law applicable to the parties at the material time. This was also the view of the aforesaid Full Bench of the Madhya Bharat High Court. It is therefore unnecessary to consider the contention pressed by Mr. Chaphekar on the assumption that the aforesaid Shree Shankar Order had not the force of law, regarding inapplicability of the observations of Lord Macmillan in Pondecherry Railway Company Ltd. v. Commissioner of Income Tax, Madras (3) which the noble Lord himself later explained in Union Cold Storage Company, Ltd. v. Adamson (4). In the aforesaid 'Pondecherry Railway Company's case AIR 1931 P C 165' Lord Macmillan had observed that: A payment out of profits and conditional on profits being earned cannot accurately be described as a payment made to earn profits. It assumes that profits have first come into existence. But profits on their coming into existence attract tax at that point and the revenue is not concerned with the subsequent application of the profits. In Union Gold Storage Company, Ltd. v. Adamson 16 T C 293 he later explained that the first sentence in the aforesaid observations ought to be read with reference to the facts of that case where the obligation was first of all to ascertain profits in a prescribed manner, after providing for outlays in earning them and then to decide them. Mr. Mr. Chaphekar in this connection had also referred to the decision of the Privy Council in Indian Radio and Cable Communications Company, Ltd. v. Commissioner of Income Tax, Bombay AIR 1937 P C 189 wherein Lord Maugham had pointed out that 'it is not universally true to say that a payment the making of which is conditional upon profit being earned cannot be described as expenditure incurred for the purpose of earning such profits' and that 'the typical exception is that of a payment to a director or manager of commission on the profits of the Company'. The difficulty, according to the learned Lord, arose by using the word 'profit' in more than one sense. Reference was also made by Mr. Chaphekar to the cases reported in Commissioner of Income Tax, Bombay v. Tata Sons Ltd. AIR 1939 Bom. 283, Tata Sons Ltd. v. Commissioner of Income Tax, Bombay AIR 1950 Bom. 383 and Badridas Bansidhar v. Commissioner of Income Tax, Bihar and Orissa AIR 1954 Pat. 425 . As already indicated in the present case the existence of Shree Shankar Order No. 173 dated 29-6-1933 is the deciding factor. It was the law at the material time and the fact whether it was based on correct or incorrect advice tendered by the Holkar State High Court is totally irrelevant. The second question to he considered is whether the commission paid to Shri Suganmalji could be described as one amounting merely to division of profits after they are earned as such or was in the nature of expenditure for the purpose of earning profits. We had considerable difficulty in deciding this question in the present state of record as the original records of assessing and appellate authority had been received in the Madhya Bharat High Court but had been destroyed during the disturbances which took place in the premises of that Court on 20th and 21st of July 1954. Later reconstruction was undertaken but it appears that in the reconstructed records constructed by the parties the true character of this payment was not clear. The orders of the Board of Revenue and of the Assessment Board which dealt with this question were also cryptic. We had therefore no other alternative but to call upon the parties to disclose the material on the basis of which the payments were made. The orders of the Board of Revenue and of the Assessment Board which dealt with this question were also cryptic. We had therefore no other alternative but to call upon the parties to disclose the material on the basis of which the payments were made. On behalf of the Appellant two resolutions of the Board of Directors of the Company in their meeting of 30-9-1929 and 4-5-1931 were produced on affidavit which further mentioned that the copies of these resolutions had been placed on record of the assessing authority. By the first of these resolutions Mr. Suganmalji was to be paid 3 per cent, commission on the gross profits of the Company for satisfactory work he performed and would perform in cotton and cloth sales department of the Company and it was further mentioned in the resolution that in case the Company is able to make good profits under his stewardship of the department the amount of commission payable to him would be further considered. In that second resolution the Board recorded their satisfaction at the work of Suganmalji and increased the commission from 3 per cent, to 5 per cent. In the counter affidavit filed on behalf of the State all that was stated in connection with this was: That the Department has never admitted the fact that any services had in fact been rendered by the Director nor the fact that a share in the profits was given to the Director as an expenditure incurred for earning profits. It was not stated in the affidavit submitted on behalf of the State that the aforesaid were not the resolutions on the basis of which Suganmalji was paid commission first at 3 per cent and then at 5 per cent nor the fact that the copies of these resolutions had not been produced before the assessing authority and did not form part of their records. The payments made during relevant years must have been included in the annual statements of the company and the two resolutions of the Board of Directors also if not genuine would have been assailed at proper time. The payments made during relevant years must have been included in the annual statements of the company and the two resolutions of the Board of Directors also if not genuine would have been assailed at proper time. In the orders under appeal the claim to deduction of these payments from profits is disallowed not on the ground that there was no basis for such deduction but on the ground that the same were dependent upon profits and were payable in proportion to the amounts of profit earned. In order therefore to decide this question these resolutions constituting the basis for the disputed payments to Suganmalji, were considered necessary in order to enable the Court to decide the matter and were permitted to be put on record for the purpose. It is clear from these resolutions that the payments were made to Suganmalji for controlling the work of cloth and sales department of the Company with a view to augment its profits. Such payment is clearly covered by 'the typical exception' referred to in the observations of Lord Maugham in the case reported in Indian Radio and Cable Communication Company Ltd. v. Commissioner of Income Tax, Bombay Presidency and Aden AIR 1937 PC 189 (192). The use of the term 'gross profits' in the resolution is significant. The Shree Shankar Order No. 173 dated 29-6-1933 does not relate to this payment and cannot be applied by analogy. I am therefore of the opinion that having regard to the terms on which these payments had been made to Suganmalji as also the purpose for making such payments the same can properly be said to constitute payments made for the purpose of earning profits. Deduction disallowed by the assessing authority and the Revenue Board with respect to the same is not proper. As regards the proceeds obtained by the sale of boilers the contention put forward on behalf of the Appellant is that the same is not income but is an accretion of capital. The sale of boilers was a stray transaction. They formed the capital investments of the company and the sale proceeds really represented capital in another form. Section 3 (2) (vii) of the Indore Industrial Tax Rules, 1927, it is contended, would apply to cases of deductions to be made out of profits and not to cases of additions to profits. The sale of boilers was a stray transaction. They formed the capital investments of the company and the sale proceeds really represented capital in another form. Section 3 (2) (vii) of the Indore Industrial Tax Rules, 1927, it is contended, would apply to cases of deductions to be made out of profits and not to cases of additions to profits. The Board of Revenue held that the amount taken as profits by the assessing authority is justified by the terms of Rule 3 (2) (vii) of the Indore Industrial Tax Rules, 1927. Rule 3 (2) (vii) of the Indore Industrial Tax Rules, 1927 is as follows: Such profits or gains shall be computed after making the following allowances, namely: (viii) in respect of any machinery or plant which, in consequence of its having become obsolete, has been sold or discarded, the difference between the original cost to the Assessee of the machinery or plant as reduced by the aggregate of the allowance made in respect of depreciation under Clause (vi) and the amount for which the machinery or plant is actually sold or its scrap value. Now to make allowance means to deduct. The charging provision made the profits or gains of Cotton Mill Industry carried on in Holkar State region liable to tax in question and in arriving at a true figure of such profits or gains certain deductions were permissible. One of such deductions is the one mentioned in Rule 3 (2) (vii). So where it is a case of deduction the provision will be applicable. The various clauses of Rule 3 (2) from (i) to (ix) provide for only deductions from the entire profits of the industry and not for additions to such profits or gains and the profits made on transactions referred to in Rule 3 (2) (vii) will be chargeable only if the same are otherwise chargeable under the main charging provision under Rule 3 (1). In this connection Mr. Chaphekar tried to contend that the Charging Rule in this case is Section 3(1) and one of the conditions for charging is that the profits or gains for their being taxed must be profits or gains of Cotton Mill industry and that the profits made by the sale of boilers cannot be said to have been made in respect of Cotton Mill industry. The Cotton Mill industry will involve, according to him, the industry engaged in preparing yarn from cotton after getting it spun, thereafter of preparing textile goods there from and in so doing resorting to processes of dying and bleaching by means of mechanised processes and in selling the finished goods for earning profits. The sale of boiler will not involve this. On the other band the learned Government Advocate contended that the Charging Rule is Rule 1 read in the context of the words used in the opening paragraph and that the presence of the word 'income' in that rule was significant. Both the Learned Counsel contended that the aforesaid views they sought to press in support of their respective contentions applied equally to questions No. 3 and 4. It cannot be gainsaid that the Charging Rule is Rule 3 (1). Rule 1 merely provides for periodic basis for payment of industrial tax and the method of determining such periodic basis. It does not say anything about the subject or the subject-matter of tax nor about the method of computation for determination of profits or gains for which the tax is to be paid. If all income of Cotton Mills was to be subject to tax under Rule 1, as contended by the learned Government Advocate, there would be no point in providing for another charging provision for profits and gains of Cotton Mill industry and further providing what allowances need be made in computing the profits and gains. The contention of the learned Government Advocate in this regard cannot be accepted. The question then to be considered is whether the profits made by the sale of capital goods such as plant or machinery can be said to be profits or gains of Cotton Mill industry. It cannot be disputed that the profits made in these cases were accidental. Ordinarily when a machinery is used it gets reduced in value and that is why provision is made in Rule 3 (2) (vi) read with Rule 4 for determining the written down value of the machinery etc. to the Assessee and by Rule 3 (2) (vii) provision is made for deduction of loss occurring by the sale of machinery. The loss is to be computed by the difference between the original costs reduced by the allowance for depreciation and the price for which the same is sold. to the Assessee and by Rule 3 (2) (vii) provision is made for deduction of loss occurring by the sale of machinery. The loss is to be computed by the difference between the original costs reduced by the allowance for depreciation and the price for which the same is sold. The case of profit being earned in spite of depreciation is outside the pale of contemplation in this provision. And under the general charging provision such accidental profit derived by the sale of machinery even after its use will not in my opinion be included in the profit or gain of Cotton Mill industry. In this connection it will be useful to refer to the distinction which is accepted on good authority to exist between capital sales and sales producing income. As Lord Justice Clerk has observed in California Copper Syndicate v. Harris 5 T C 159 : It is quite a well settled principle in dealing with questions of assessment of Income-tax, that where the owner of an ordinary investment chooses to realise it, and obtain a greater price for it than he originally acquired it at, the enhanced price is not profit. assessable to Income-tax. The material charging provision in Section 10 of the Indian Income-tax Act is: The tax shall be payable by an Assessee under the head 'Profits and gains of business profession or vocation' in respect of the profit or gains of any business, profession or vocation carried on by him. The charging provision in Rule 3 (1) of the Indore Industrial Tax Rules, 1927, is not materially different from the aforesaid provision. It is further to be observed that the purchase and sell of boilers is not shown to have taken place off and on with a view to earn profits in the industry as a part of the general business in connection with Cotton Mill industry but only as a stray transaction when the said articles were not found to be useful and had to be done away with for whatever price they would derive. At the most this would involve conversion of capital goods into money and the contention of Mr. Chaphekar in this connection is correct. I am therefore of the view that the profits derived by the sale of boilers cannot be included as the profits and gains of Cotton Mill industry. At the most this would involve conversion of capital goods into money and the contention of Mr. Chaphekar in this connection is correct. I am therefore of the view that the profits derived by the sale of boilers cannot be included as the profits and gains of Cotton Mill industry. This takes us to the last question regarding the income of the Kalyan properties which are situated outside Holkar State territory. Mr. Chaphekar's contention in this regard is that the properties being situated outside Holkar State territories and the income not being of Cotton Mill industry the income or gains cannot be included as profits and gains under Rule 3 (1) of the Rules. The view of the lower appellate Court is that the Appellant cannot be allowed to blow hot and cold. He has shown in the accounts the expenditure required for the upkeep of the buildings. He could not in that case be allowed to keep the income outside the pale of taxation under the Rules. Mr. Chaphekar's contention in this regard is that tax cannot be imposed by resort to principle of approbate and reprobate. The taxability of a particular income must exist within the four corners of the taxing provision. This last mentioned contention of Mr. Chaphekar is correct. It has therefore to be seen whether such income or gains do fall within the four corners of Rule 3(1). One of the reasons suggested for the contention that the said income does not fall under Rule 3 (1) is that the income was received outside Holkar State and from properties situated in the Province of Bombay. I think where the money is actually received is immaterial. What the rule requires is that the industry must be carried on in Holkar State territory. It is not disputed that the industry i. e. the Cotton Mill in question was run at Indore that is in Holkar State territory at the material time. Once the industry is thus carried on in Holkar State territory receipts in respect of that industry outside the State limits will not amount to receipts of Cotton Mill industry situated outside Holkar State. Second reason suggested is that the gains cannot be said to be those of the Cotton Mill industry. They are ancillary gains of properties belonging to the Company outside the place of business of that industry. Second reason suggested is that the gains cannot be said to be those of the Cotton Mill industry. They are ancillary gains of properties belonging to the Company outside the place of business of that industry. In this case there is no material on record to indicate whether the properties at Kalyan exist for augmenting the business of the industry and represent merely surplus profits or funds. If the properties exist for augmenting the business the income derived there from will be related to the principal business of the company and may be said to arise from the business of the industry and as such taxable. On the other hand if they represent merely the investment of surplus funds of the company then it will be difficult to call the gains as those of Cotton Mill industry. In the absence of any material to that effect it is not possible for us to decide this question. Mr. Chaphekar contended that in subsequent years this income has been excluded from computation for the purpose of assessment and levy of industrial tax. If this is true the considerations which must have moved the assessing authority to take that decision will of course be taken by them into account in conjunction with other material the parties may choose to produce hereafter on the matter being remanded. The result is that the Appellant's contention with regard to question No. 1 regarding commission paid to Secretaries, Treasurers and Agents is disallowed. Appellant succeeds on two points: Firstly the commission paid to Suganmalji ought to have been allowed to be deducted as expenditure incurred solely for the purpose of earning profit within the meaning of Rule 3 (2) (ix). Secondly the price realised by sale of boilers minus the original cost reduced by the aggregate of allowance made in respect of depreciation under Clause (vi) of Rule 3 (2) cannot be said to be profits or gains of Cotton Mill industry and ought to have been excluded from computation as such profits or gains. As regards question No. 4 the materials are insufficient to give a decision one way or the other and since the view taken by the Revenue Board in that regard cannot be upheld the matter, to that extent, ought to be remanded. As regards question No. 4 the materials are insufficient to give a decision one way or the other and since the view taken by the Revenue Board in that regard cannot be upheld the matter, to that extent, ought to be remanded. Consequently it is ordered: Civil Second Appeal No. 110 of 1952:-Succeeds as regards Suganmalji's commission and the profits made in the sale of boilers. Suganmalji's commission of the year 1941 will have to be deducted from the profits and gains of the year 1941 as allowable expenditure incurred solely for the purpose of earning profit and the profit earned by the sale of boiler amounting to Rs. 5,113 will have to be excluded from computation, in assessing the tax in question, as profit or gain of Cotton Mill industry. It also partly succeeds as regards the rents realised of Kalyan properties in that for consideration of nature of that income and its connection with the Cotton Mill industry carried on in Holkar State, the case will have to be remanded to the Assessing Authority to determine the question in light of the observations made above. As regards commission paid to Secretaries, Treasurers and Agents the appeal fails. Civil Second Appeal No. 111 of 1952.-Also succeeds as regards Sugan-malji's commission and profits made in the sale of boiler. Sugan-malji's commission of the year 1942 will have to be deducted from the profits and gains of the year 1942 as allowable expenditure incurred solely for the purpose of earning profits and the profit earned by the sale of boiler amounting to Rs. 4,124 in the year 1942 will have to be excluded from computation as profit or gain in assessing the tax in question as profit of Cotton Mill industry. This appeal however fails regarding commission paid to Secretaries, Treasurers and Agents in the year 1942. Civil Second Appeal No. 112 of 1952.-Fails as regards commission paid to Secretaries, Treasurers and Agents. It partially succeeds as regards rents of Kalyan properties realised in the year 1943 in that for consideration of the nature of that income and its connection with the Cotton Mill industry carried on in Holkar State the case will have to be remanded to the Assessing Authority who will determine the question whether they amount to profits or gains of Cotton Mill industry in light of the observations made above. As the appeals only partially succeed we leave the parties to bear their costs. I agree. Appeal allowed.