Per Syed Kabirul Hasan and S. Hasan Imam (Judicial Members) agreeing; Abdul Ghafoor Junejo (Accountant Member) Contra‑‑‑

Income Tax Ordinance (XXXI of 1979)‑‑‑

‑‑‑‑S. 27‑‑‑Capital gain‑‑‑Inherited agricultural land‑‑‑Sale of such land in the shape of plots ‑‑‑Taxability‑‑‑Assessee converted inherited agricultural land into sikny and obtained "No‑Objection Certificate "from the Development Authority‑‑‑Land was bifurcated into number of plots and sold in the open market‑‑‑Permission for sale of such plots as Housing Scheme was allowed by the concerned Development Authority‑ Profit on sale of such agricultural land was declared as capital gain being, exempt from income‑tax on the ground that one solitary transaction of land could not be treated an activity in the nature of trade or business which was not accepted by the Assessing Officer and treated as income in the nature of business‑‑‑First Appellate Authority confirmed the same‑‑‑Validity‑‑‑Agricultural land was converted into sikny land from the Government and later "No‑Objection Certificate" was obtained from concerned Development Authority for the selling of plots to general public ‑‑‑Assessee also declared himself as builder or developer‑‑‑Such facts made it clear that the assessee was a builder or developer‑‑ Conversion of land into sikny and obtaining of N.O.C. were all series of' the transaction which clearly spelled out that the intention of the assessee was to do the business of builder or developer and the scheme was duly approved scheme by the Government‑‑‑Transaction being an adventure in the nature of trade its profits were taxable in circumstances.

1994 PTD (Trib.) 103 rel.

(1968) 68 ITR 573; (1959) 35 ITR 594 and (1980) 121 ITR 580 irrelevant.

Per Abdul Ghafoor Junejo (Accountant Member) Contra. ‑‑‑[Minority view].

1989 PTD 594; 1989 PTD (Trib.) 460; 1975 PTD‑(Trib.) 6; 2001 PTD 1222; 1990 PTD 155 = PLD 1990 SC 399; CIT, Gujarat v. Premji Gopal Bhai (1978) 113 ITR 785; Deep Chandra & Co. v. CIT, Kanpoor 1989 PTD 445 and 1990 PTD (Trib.) 671 ref.

A.S. Jafri and Kh. Mazharuddin for Appellant.

Sajjad Ahmed, D.R. and Amjad Jashmed, D.R. for Respondent.

Dates of hearing: 12th March and 15 August, 2002.

ORDER

ABDUL GHAFOOR JUNEJO (ACCOUNTANT MEMBER).‑‑ This order will dispose off the above four appeals relating to assessment years 1997‑98, 1998‑99, 1999‑2000 and 2000‑2001. The appellant, an A.O.P., consists of seven family members all of whom are primarily Zamindars and agriculturists by profession. The solitary issue involved in these appeals is taxability or non‑taxability of the declared gain on sale of inherited agricultural land. Since the facts in all the four appeals are identical, the same are disposed off by this single order.

2. We have heard the learned representatives of the two parties and also perused the orders of learned CIT(A), Hyderabad for assessment years 1997‑98 and 1998‑99, dated 13‑5‑2000 and for assessment years 1999‑2000 and 2000‑2001, dated 24‑7‑2001, as well as of the Assessing Officer.

3. These appeals preferred before us are directed against the refusal to accept the capital gains arising from the sale of sub‑plotting of the inherited agricultural land at Revenue Survey Nos.53 (part), 55, 56. 57, 58, 437, 438, 475, 476 and 477 Deh Nareja, Ward `G' Tando Yousuf Road, Hyderabad.

4. Initially proceedings of assessment were initiated in compliance of notice under section 56 in the assessment year' 1997‑98. In all these lour assessment years, returns of income were filed as nil but capital gain was declared in the exempted columns of all income‑tax returns of the respective, assessment years. In response to the ACIT's query, the assessee on 8‑5‑1999 filed written explanation which is reproduced for the sake of facility here as under:‑‑‑

"During the course of the proceeding and of the Letter vide No. 1492, dated 3‑5‑1999 your honour had taken an exception to non‑declaration for tax purposes the gain arising from the sale of land in piecemeal as shown in the approval of layout plah and grant of no objection certificate of plot at Revenue Survey Nos.53 (part), 55, 56, 57, 58, 437, 438, 439, 475, 476 and 477 Deh Nareja, Ward `G' Tando Yousuf Road, Hyderabad.

(2) In the context of the correspondence you have not taken such an exception in the matter on consideration of the factual and legal position obtaining in the case.

(3) This agricultural land in question was acquired through inheritance since 1984 and the land matter has been further decided/acquired through Decree from the First Senior Civil Judge Hyderabad as per Suit No. 33 of 1952 in the favour of late Hamid Ali through his grandfather after compromise Decree and later on the children has been acquired through this agricultural land by inheritance."

4. My client and his all family members are basically Zamindars/agriculturists namely:‑‑

(1) Mansoor Ali Son of late Hamid Ali.

(2) Amir Ali Son of late Hamid Ali.

(3) Hussain Ali Son late Hamid Ali.

(4) Mst. Zaibun‑Nisa W/o late Hamid Ali.

(5) Miss Safiya Khanum D/o late Hamid Ali and

(6) Najeeb Ali Son of late Hamid Ali.

All the above adults, have granted General Power of Attorney in favour of their brother/son Sarfraz. Ali Affandi Son of late Hamid Ali‑Affandi on 12‑9‑1979. The land was acquired not through any purchase and previously the Dhal/Abiyana and Ushr have been paid on this land. Due to encroachment of land and all the family members required money for the livelihood and an attempt has been made to safeguard their interest and the only solution of the problem is that:

(i) One solution of the problem was‑to sale the land to one single investor but none was available probably because the land had no attraction being situated far away from the main road in a poor locality.

(ii) Another solution of the problem was that the Aforesaid agriculture land put to a gainful use like an industry but it was not possible for lack of necessary funds, being inexperienced and moreover basically all ate agriculturists.

(iii) Thus, in the absence of any alternative of saving the land from encroachment, my client decided to sell the land by developing and parceling it out into different plots as compelling necessity and the only solution of the problem' was disposal of the land under compulsion and in this manner it was certainly not activated or prompted by a desire to earn profit.

5. In view of the facts and circumstances as explained above, one solitary transaction of land cannot be treated an activity in the nature of trade or business. The reasons are:

(i) That it is not an estate, nor my client has got the licence of builder as it is the basic requirement of the H.D.A. nor have any business earlier of real estate, unfortunately you have assumed our name in your impugned show‑cause letter and notices "Affandi Builders and Developers". The assessee in question have never indulged in real estate dealings. One single/solitary transaction of land disposal cannot be labelled or designed an activity in the nature of trade or business of one swallow does not make a summer.

(ii) There is no settlement price of land nor any purchase involved it cannot be said to have been acquired by speculation or bargain which is always held to be an essential element in all trading activities. There had been no motive of profit earning at the material time of acquisition of land and also at the time of disposal.

(iii) The sale of land (in plots) after developing and parceling it out in different plots, was a most compelling necessity which afforded a chance of saving it from encroachment and also retrieving the initial investment in terms of settlement price. Merely because, by doing so a higher price was secured, does not make the transaction an activity in the nature of trade or business.

6. It would not be out of place to mention here that the ratio of judgments of the superior Courts in such cases is found to be in favour of assessee/appellant on consideration of more or less similar facts as exist in this case. Your honour's kind attention is invited to the decisions of the learned APP. Trib Lahore in two cases reported as (I) I.T.A. Nos.3610, 3611, 3612 and 6872 of 1973‑74, dated 24‑10‑1989 (1989 Vol. 60 Tax. Pp. 17‑27). On the issue of sale of land after development/plotting, it has been observed in both these judgments as under:‑‑‑

"If a person buys the land with no intention of selling it and ultimately finds it convenient to sell the same, even though by parceling out in different plots and also by laying roads and providing other amenities with view to get more price, it cannot be said that the activity he carried on has any element of trade, commerce or business and it cannot be, therefore, said that it is an activity in the nature of trade."

7. We would like to invite your kind attention in your Letter vide No.612, dated 4‑12‑1998 in which you, have pointed out that the decision of the Honourable ITAT is not related in our case but unfortunately you have failed to rebut any specific provision or the facts of the case. At the very outset it may be pertinent to disclose that the onus to prove that the isolated transaction constitutes adventure in the nature of trade is solely on the department and it is a mixed question of law and facts. We may appreciate your findings if you kindly allow the same from your office. "

6‑A. The learned A.Rs., of the appellant has also relied on the case- laws reported as:‑‑

(1) 1989 PTD (Trib.) 460; (2) 1975 PTD (Trib.) 6; (3) 2001 PTD 1222; (4) 1990 PTD 155 = PLD 1990 SC 399 and (5) ITR (1978) 785 Vol. 113 Gujrat High Court, dated August 30th, 1977.

6‑B. On the other hand, the learned D.R. of the department has argued that it is an admitted fact' that the appellant has inherited agricultural land and also established fact that this land was got sikny from Government and obtained N.O.C. from H.D.A. for the selling of plots after commercialization the sikny land, the saleable area of which is 63053 sq. yds. In Deh Nareja, Ward "G" Tando Yousuf Road. Hyderabad. The land situated under the limits of Municipal Corporation Hyderabad, the N.O.C. issued by H.D.A. vide No.2071‑1096, dated 20‑6‑1998, shows the sale for residential Plots 3 numbers measuring 3200 sq. ft, 'A' type plots measuring 1000 sq. ft. 14 numbers Commercial 'B' type plots measuring 720 sq. ft. numbers The external development charges fixed by the H.D.A. at the rate of Rs. 50 per sq. ft. on the saleable area of the scheme which were to be paid in instalments total external development charges were Rs.31,52,650. Since this scheme has been announced for the sale of the plots after making it into commercialization as such there is nature of trade through which assessee has to avail the revenue receipts i.e. profit from the scheme after selling of the plots hence the decisions of ITAT and higher Courts furnished by the learned A.Rs. are not related to this case. The learned D.R. also argued that the appellant was also a licence holder builder, which he claimed in his return of income.

7. On the other hand, the learned A.Rs. of the appellant, vociferously urged that assessee does not hold any licence of builder from H.D.A. or from any other Government Authorities. However, the assessee has filed his return of income and in the column 'nature of business' it was inadvertently given the word 'builder and developer' as the office clerk has wrote the same at the time of filing the return. The learned A.Rs. further pointed out that the explanation sought by the Department as mentioned supra in para. 5(i), this clarification has specifically mentioned that the appellant did not get any licence of builder or developer. He also stressed that the appellant has filed rectification application to the concerned DCIT to correct this mistake.

8. We find that the solitary issue requiring determination is whether the transaction of sale of agricultural land after getting N.O.C. from the Local Government made by the assessee through a scheme, amounted to an adventure in the nature of trade and profits earned there-from were taxable as revenue receipts. For resolving this issue the real trest is the dominant intention and conduct of the concerned party. It has to be seen that the said land was inherited and got acquired through decree from the First Senior Civil Judge, Hyderabad as per Suit No.33 of 1952, dated 23‑12‑1952 in favour of late Hamid Ali through his grand father after compromise decree and later on the said family members being children of late Hamid Ali have acquired the same. This issue has been settled that the land has been acquired through suit of partition of their late father and other family members. The other aspect was that the dominant intention was to sale this entire land in one stroke was not fruitful for the co‑owners, therefore, they have sold this land after getting N.O.C. from the H.D.A for the lure of more benefit, whereas on the other hand the departmental officers failed to establish that the said sale of agricultural land in the hope of earning profits comes or less same in the reported judgments of India and Pakistan. First of all we hereby reproduced the relevant text of the case of Indian jurisdiction of Gujrat High Court reported as CIT Gujrat v. Premji Gopal Bhai in 19 78 ITR Vol. 113 page 785:‑‑‑

"The burden of proving that a particular transaction was an adventure in the nature of' trade is on the revenue. That burden can be discharged by pointing to circumstances which lead to the conclusion that the transaction is an adventure in the nature of trade. However, even if land which is not a commercial commodity is purchased and it can be shown that the purchase of the land was made solely and exclusively with an intention to resale it at a profit it would be a strong factor that (lie transaction' would be an adventure in the nature of trade. The assessee who owned agricultural land which was inherited by him from his ancestors, converted it in 1957‑58 into non agricultural land, divided land into plots and sold the plots as and when purchaser was available. Prior to the assessment year 1969‑70 whenever a plot of land or plots of land were sold the profit realised by the assessee on such sale had been assessed as capital gain and at no time the assessee was treated as a dealer of land. The assessee sold two plots of land in the year 1961 and realized Rs.3,500 in 1961. On June 2, 1964 he repurchased these plots for Rs.4,900 for purpose of constructing a building thereon but no construction took place and ultimately the two plots were sold on October 4, 1968 and March 11, 1969 for an aggregate amount of Rs.28,815 which resulted in a .gain of Rs.23,627 to the assessee. The ITO treated this as profits arising from business activity and not as capital gains. On appeal, the AAC confirmed the order of the ITO. On further appeal to the Appellate Tribunal, the Tribunal held that surplus realized on sale of the land should be assessed as capital gains instead of as business profit.

Finally the High Court held that when the assessee sold different plots in the past, that is prior to 1968‑69, the profits realized by the assessee from those sales were treated as capital gains. Even the sales out of the original holding subsequent to the sales in 1968 and 1969 were treated as realization of capital asset resulting in capital gains, and hence the assessee was not dealer in land.

(2) That the land was ancestral agricultural land of the assessee and it was in 1957‑58 that the assessee converted this ancestral agricultural land into non‑agricultural land and subdivided the land into plots which he started gradually selling to different persons. The very fact that he repurchased the plots was a factor which went to show that the assessee was not dealer in the past and was only disposing of his capital asset in the land and, apart from this solitary instance of purchase and sale, no other repurchase had been made by the assessee. The land was repurchased by the assessee because it was adjacent to the land in which the existing building of the assessee stood.

(3) The revenue did not discharge the burden of establishing that the repurchase and sale of the two plots was an adventure in the nature of trade; it cannot be said, in view of the totalily of the circumstances of the case, that it was the sole intention of the assessee at the time when he repurchased the land in 1964 to sell the two plots at a profit.

Therefore, the conclusion reached by the Tribunal that the amount of Rs.23,627 should be treated as capital gains and assessed as such and not as business profits was correct.

While arriving at this conclusion, it was finally held by the Honourable High Court as under:‑‑‑

"Under these circumstances the conclusion reached by the Tribunal that the amount of Rs.23,627 should be treated as capital gains and assessed as such and not as business profits is correct. Under these circumstances, the question referred to us is answered in the affirmative, that is, in favour of the assessee and against the revenue. The Commissioner will pay the costs of this reference to the assessee."

9. In the another judgment of Indian jurisdiction reported as (1978) 37 Tax 236. High Court India, cited as Deep Chandra & Co. v. CIT Kanpoor of the Allahbad High Court. It was held by the Honourable High Court that:‑‑‑

"Indian Income‑tax Act, 1922 (XI of 1922), sections 2(4) and 66‑‑‑Income‑‑‑Adventure in the nature of trade‑‑‑Investment in land whether adventure in the nature of trade whether a mixed question of law and fact‑‑‑Held yes‑‑‑Burden of proof that profit earned in such transaction is revenue receipt‑‑‑Whether on the department‑‑‑Held yes‑‑‑Suit for specific performance or agreement for purchase of land partnership for financing the litigation‑‑‑Land ploted out and sold‑‑‑Profits, whether in the nature of trade‑Held no‑‑‑Whether Capital gains‑Held yes."

10. Now reverting to the Pakistan jurisdiction, in the case reported as Edulji Dinshaw Limited v. Income Tax Officer, decided by the Honourable Supreme Court of Pakistan, decided on 16‑5‑1988, as 1990 PTO 155 = PLD 1990 SC 399. The material part is re‑produced hereunder:‑‑‑

"On the facts and circumstances proved on record, we are clearly of the view that the sale proceeds of the properties and the compensation amounts received from the Government in respect of the compulsory acquisition of the properties were indeed capital gains, and were not income from business, for the appellant‑company was not a dealer or engaged in the business of buying and selling of the properties. All the transactions or sales of the properties and the compulsory acquisition of land by the Government were fully disclosed by the appellant‑company and after conscious consideration, the Income Tax Officer had finalised the assessment orders. It has not been shown that appellant had purchased any property from any outsider and sold or disposed of during the assessment years in question. There is also force in the argument advanced on behalf of the appellant that since the case of the appellant throughout is that the sale proceeds of the properties and the compensation amounts received in respect of the compulsory acquisition of the properties by the Government were capital gains and not income, appellant could not, and ought not to have disclosed these transactions under section `C'. Part‑I of the Income Tax Return. Once all the facts have been fully disclosed by the assessee and considered by the Income‑tax Authorities and the assessments have been consciously completed, and no new facts has been discovered there can be no scope for interference with these concluded transactions under the provision of section 65 of the Ordinance on the ground that the income chargeable to tax under the Ordinance has escaped assessment or has been under‑assessed, etc."

11. In the case reported as 1989 PTD (Trib.) 460, the following are the material part:‑‑

"Revenue receipts‑‑‑Assessee has purchased agricultural land in 1965‑‑‑Land remained under cultivation up to 1980‑‑‑Land came within the Municipal limits ‑‑‑Assessee sold land in the form of plots through registered sale‑deed‑‑‑Whether an adventure in the nature of trade‑‑‑Held no‑‑‑Profits earned by the assessee‑‑ Whether revenue receipts and liable to tax‑‑‑Held no."

12. Another decision which is also pari‑materia reported as 1975 PTD (Trib.) 6. In which the Tribunal held that the surplus arising out of land are not adventure in the nature of trade.

13. In the case reported as (1990) 62 Tax 29 (Trib.), it is held that dealings in land are not venture in the nature of trade and it was also held that sales of plot does not come under the adventure in the nature of trade and in the said case the asses see‑company stating that clause (2) of the Memorandum of the Association of the Company provided dealings in land as one of the objects and such the transaction of sale of plot amounted to venture in the nature of trade and the profits earned therefrom were taxable as revenue receipts. The notice was duly replied by the assessee-company stating that it had neither any such intention nor was it the transaction in the course of trade. It was further stated that sale and purchase of land as one of the objects of the company as stated in the Memorandum of Association was not conclusive factor for determining the assessee's intention. It was suggested that it was mere a capital gain which was not taxable by virtue of Entry No. 50 in Fourth Schedule Part‑I appended to the Constitution of Pakistan which prohibits the making of any laws imposing the tax on capital gains on immovable property.

14. The upshot of the above discussion is that the impugned orders of both the officers are hereby vacated and we hold that the transactions in question undertaken by the assessee are not venture in the nature of trade and the receipts earned therefrom were not liable to tax as the business income or profits.

15. The appeals filed at the instance of the assessee succeeds accordingly in all the four years.

SYED KABIRUL HASAN (JUDICIAL MEMBER).‑‑‑16. With respect I do not agree with the finding of Mr. Abdul Ghafoor Junejo, the learned Accountant Member, for the reasons given below.

17. The brief facts have already been explained by the learned Accountant Member and it would be unnecessary to repeat them. However, the necessary facts are that the appellant has inherited agricultural land and later on this land was got sikny from Government and obtained No Objection Certificate from Hyderabad Development Authority (H.D.A.) for the selling of plots after commercialization of the sikny land. This fact has been mentioned in the draft order of the learned Accountant Member.

18. This fact has not been considered by the learned Accountant Member that the assessee converted agricultural land into sikny land and N.O.C. obtained from the H.D.A. Later on the land was converted into plots and was sold to the persons. These facts have also been explained in the assessment order and appellate order. The assessee has been declared builder or developer before the Government body as has been held by the learned CIT(A).

"Similarly the assertion that the appellant is not registered in any Government body as a builder or developer is incorrect as the appellant declared itself as 'builder' in the return of income and was also granted 'Approval of layout Plan and Grant of N.O.C. for sale and Development of Plot for Housing Scheme titled as "Gulshan‑e‑Hamid Ali' on R. S. Nos.53(Part) 55, 56, 57, 58., 437, 438, 439, 475, 476 and 477 Deh Narejo Ward 'G' Tando Yousuf Road, Hyderabad by the H.D.A. vide Letter No. HDC/ (MP/PHS‑2071/1096, dated 20‑6‑1991 for the said project."

19. In my view, the theory of sole transaction would not apply in this case. This fact whether it was a sole transaction or adventure in the nature of trade is apparent from the case‑law reported as 1994 PTD 103 (Trib). Wherein, considering all the case‑laws cited by the learned Accountant Member it is held that:‑‑

"26. From the criterion set out by the Superior Courts as discussed above the following principles on the issue emerge:

(1) That no hard and fast rule can be adopted in such cases and therefore, each transaction will have to be judged on the basis of the own facts;

(2) That mere frequency of a transaction may not by itself amount to venture in the nature of trade;

(3) That in case of a solitary transaction heavy burden lies on the Revenue to establish that the impugned transaction in fact was a business and receipt out of it business receipts;

(4) That intention to make profit may be an important element to be considered while judging the nature of a transaction but here again presence of such an intention per se will not make a transaction a 'business'.

(5) That special care will have to be takers while considering sale or purchase of immovable properties where such property is evidently not a stock‑in‑trade.

(6) That it is legal to examine such‑like transactions in the light of the charters or Memorandum of Association in cases of limited companies statutory corporations and other bodies corporate but mere permissibility of a transaction does not by itself mean carrying on the business of that kind, and

(7) That the distinction between a fixed or capital asset and circulating capital or stock‑in‑trade; a 'business' and an 'investment' should always be in the focus of the Assessing Officer while dissecting a transaction of the kind."

20. In view of whatever stated above, it is clear that no hard and fast rule can be adopted in cases of adventure in the nature of trade and each transaction will have to be judged on the basis of its own facts. Mere intention of doing anything is not necessary but something infurtherance to intention to be done to attract any' transaction to fall under the adventure in the nature of trade. Here in this, case, firstly the agricultural land was converted into sikny land from the Government. Later on, No Objection Certificate was obtained from Hydrabad Development Authority for the selling of plots to general public. The assessee was also declared builder or developer. Therefore, these facts made it very clear that the assessee was a builder or developer. The land which was agricultural was converted into sikny land and therefore, obtainment of N.O.C. was all series of the transaction which clearly spell out that intention of the assessee was to do the business of builder or developer and the scheme known as "Gulshan‑e‑Hamid Ali" was duly approved scheme by the Government. In view of this, this transaction was an adventure in the nature of Trade and its profits were taxable.

21. The order of the learned CIT(A) is, therefore, upheld.

SYED KABIRUL HASAN (JUDICIAL MEMBER).‑‑‑22. Since, difference of opinion has arisen between both the learned Accountant Member and Judicial Member, therefore, the learned Chairman is requested to refer the matter to any other Member for adjudication on following question of law:‑‑‑

"Whether under the facts and circumstances income earned from the sale of plot was adventure in the nature of trade and hence taxable?"

(Sd.)

(SYED KABIRUL HASAN),

JUDICIAL MEMBER

(Sd.)

(ABDUL GHAFOOR JUNEJO),

ACCOUNTANT MEMBER.

S. HASAN IMAM (JUDICIAL MEMBER). ‑‑‑Since difference of opinion has arisen between both the learned Judicial Member and Accountant Member, therefore, the learned Chairman, has referred the matter to undersigned for adjudication or the question of law reproduced hereunder:‑‑‑

"Whether under the facts and circumstances, Income earned from the sale of plot was adventure in the nature of trade; hence taxable?"

2. Mr. Abdul Ghafoor Junejo, learned Accountant Member was pleased to hold that the transactions in question undertaken by the assessee are not venture in the nature of trade and the receipts earned there from were not liable to tax as the business income or profit. Contrary to the finding of the learned Accountant Member. Mr. S. Kabirul Hasan, learned Judicial Member, observed that the transaction was in the nature of trade and its profits were taxable.

3. I have heard the learned representatives of the two parties and have gone through the facts as well as the orders on record. Admittedly the assessee converted inherited agricultural land into sikny and also obtained No Objection Certificate from H.D.A. He thereafter bifurcated the land into number of plots and sold the same in the open market. The assessee got himself registered as builder developer and. also furnished return as a builder. On the contrary, layout plain was duly approved and permission for sale of plots as part of housing scheme titled as Gulshan -e‑Hamid Ali was also allowed by the H.D.A. vide Letter No.HDC/PHS/2071/1096, dated 20‑6‑1991. In the circumstances, I have no hesitation to hold that the sale of plots cannot be treated as sole transaction, as conversion of agriculture land into plots for disposal to public at large itself reflects an intention of the assessee to deviate from the theory of sole transaction.

4. The learned Judicial Member has considered all the facts and reported case laws taken into consideration by the learned Accountant Member, therefore, he has relied upon a reported case‑law cited as 1994 PTD (Trib.) 103, wherein all the case‑laws quoted by the learned Accountant Member have been discussed wherein it is categorically held that each transaction will have to be judged on the basis of the own facts, mere frequency of a transaction may not by itself amount to venture in the nature of trade, the intention to make profit is an important element to be considered while judging the nature of a transaction and special care is to be taken while considering sale or purchase of immovable properties where such property is evidently not a stock‑in‑trade. Apart from this, matter can be resolved referring Memorandum of Association and assessee has not been, able to rebut object of the company as stated in the Memorandum of Association. Besides the case‑laws reported as (1968) ITR Vol. 68 P. 573 (S.C. India), (1959) ITR Vol. IXXXV P. 594 (SC India) and (1980) ITR Vol. 121 P. 580 (H.C. Bombay), are not relevant, so far as facts are concerned, hence cannot be relied upon to favour or dis-favour the assessee.

5. As a result of above discussion, sufficient reason appears to disagree with the finding that "the transactions in question undertaken by the assessee are not venture in the nature of trade and the receipts earned there from were not liable to tax as the business income or profits". In the circumstances (supra), I find reasons to support the finding of the learned Judicial Member that "the transaction was an adventure in the nature of trade and its profits were taxable".

6. In view of the above position, the question referred is replied in affirmative. Consequently orders of the learned CIT(A) referred above to maintaining the order of the learned Assessing Officers are maintained.

7. The appeals accordingly stand dismissed.

C.M.A./555/Tax(Trib.) Appeals dismissed.