judgement:
Appeal No. 347 of 1955.
Appeal by special leave from the judgment and order dated March 26, 1954, of the Income tax Appellate Tribunal, Calcutta, in Income tax Appeal No. 5263 of 1953 54.
A. V. Viswanatha Sastri and Sukumar Chosh, for the appellant.
G. K. Daphtary, Solicitor General of India, B. Ganapathy, R. H. Dhebar and D. Gupta, for the respondent.
May 4.
The Judgment of Bhagwati and Sinha, JJ., was delivered by Sinha, J. Kapur, J. delivered a separate Judgment.
848 SINHA, J.
The only question for determination in this appeal by special leave, is whether the solitary transaction in respect of about three quarters of an acre of land in the suburbs of Calcutta, was an adventure in the nature of trade and, therefore, liable to income tax.
The assessee is the appellant.
He challenges the correctness of the order of the Income tax Appellate Tribunal, Calcutta Bench, Calcutta, dated March 26, 1954, passed in I.T.A. 5263 of 1953 54, in respect of the Assessment year 1948 49, reversing that of the Appellate Assistant Commissioner of Incometax, Range " C ", Calcutta, dated September 5, 1953.
The facts of this case leading upto this appeal are as follows: The appellant is engaged in various types of business activities, being a share holder and Director or Managing Director of several limited liability concerns, and is also a partner in the firm known as " Pioneer Engineering Works ".
In respect of his income during the previous two assessment years, the appellant was assessed to income tax on the sums of Rs. 53,000/ (1946 47) and Rs. 59,000/ (1947 48).
The appellant holds investments in shares of the value of Rs. 2,45,000/ , out of which, according to the assessee, shares of the value of Rs. 1,95,000/ , though standing in his name, belong to other members of his family, including his father and his wife.
The Hindusthan Co operative Insurance Society Limited, of Calcutta, (hereinafter referred to as " the Society "), acquired a block of about 578 bighas of land lying between Diamond Harbour Road and Tolly 's Nullah, within the Municipal limits of the Corporation of Calcutta, between the years 1940 and 1942.
The Society decided to level the land thus acquired and to open out roads and after developing the same, it subdivided it into small plots and sites in different blocks suitable for residential purposes under its scheme called " The New Alipore Land Development Scheme No. XV ".
The Society offered such plots for sale.
One such plot, being plot No. 77 in block " E " of the said Scheme, was agreed, by an agreement dated January 10, 1946, to be sold to the assessee at the rate of Rs. 2,550/ per katha.
In pursuance of the said agreement, the assessee paid to the Society, a sum of 849 Rs. 13,099/ being 10% of the estimated price of the plot with an approximate area of 51 kathas, which subsequently, on exact measurement, was found to be 45 56 kathas.
Subsequently, on the acceptance of his offer, the appellant paid another SUM of Rs. 19,649 (omitting annas), being 15% of the estimated price.
Thus, in all, a sum of Rs. 32,748/ being 25% of the estimated total price of the land, was paid by the assessee to the Society.
All this area which the Society had undertaken to develop and sell to different purchasers in small plots, was in occupation of the Government, which had requisitioned it for purposes connected with the prosecution of the Second World War.
Hence, one of the terms of the transaction between the assesee and the Society, was that the transaction of purchase would be completed within six months of the lands being released from Government occupation.
It was further stipulated that the assessee would be entitled to apply, within three months of the receipt of the notice of de requisition, for extension of time not exceeding one year, for the completion of the transaction on the condition that he paid interest at the rate of 7% per annum on the outstanding amount, during the extended period.
If the assessee, as purchaser, paid to the Society another sum which, together with Rs. 32,748/ , already paid, would amount to 50% of the total price of the plot in question (within six months of the notice of de requisition), he could get a conveyance of the property on his executing an English Mortgage for the remaining 50% of the price carrying interest at the rate of 7%, on the expiry of these aforesaid six months.
As there was an apprehension that the Government might acquire the whole property for its own purpose, it was further stipulated that in the event of such an acquisition by Government, the agreement for sale would stand rescinded, and the assessee, in that event, would be entitled to re payment of the amounts paid by him to the Society by way of advance for the completion of the transaction.
The assessee 's case is that as the terms of the payment of purchase price in several instalments, as aforesaid, were convenient to him, 107 850 he agreed to take the plot on the conditions aforesaid, with a view to building a residential house for himself and constructing a workshop in connection with his business activity.
At the end of the Second World War, the assesee 's construction activities began to decline, and there was no immediate prospect of the land in question being de requisitioned by Government.
In those circumstances, the assessee negotiated for the assignment of his rights under the agreement with the Society, to Rani Yuddha Rajya Devi of Nepal.
The Rani appeared to have taken a fancy to the plot and to have made an attractive offer to the appellant.
Hence, after exchange of letters between the parties, it was agreed between them that a sum of Rs. 1,07,000 odd would be deposited by the Rani with the assessee on suspense account until the transaction of sale between the Society as the vendor and the Rani or her nominee, as the vendee, would be executed and the transaction of purchase finalised upon her undertaking to pay the sum of Rs. 98,000 odd to the Society, which was the outstanding amount of the sale price in respect of the plot agreed by the assessee to be purchased by him from the Society.
After a good deal of correspondence, on December 27, 1950, the Society executed a deed of conveyance in respect of the said plot, to the daughter of the said Rani as the vendee.
The aforesaid vendee executed a deed of mortgage in favour of the Society for the outstanding amount of Rs. 50,900/ , after payment of Rs. 32,700 odd to the Society.
In the result, the assessee received, on April 3, 1947, a sum of Rs. 1,07,000 odd from the Rani, in pursuance of the agreement between her and the assessee.
Until the execution of the sale deed between the Society and the Rani 's nominee, as aforesaid, the assessee continued to be liable to the Society in respect of the agreement of January 10, 1946.
The assessee, thus, received from the Rani a sum of Rs. 74,000 odd in excess of the amount paid by him to the Society.
The property, including the plot in question, was not de requisitioned until some time in 1949.
In respect of the assessment year 1948 49, the assessee filed a return of his income to the Income tax 851 Department, showing a loss of Rs. 2,000 odd for the financial year 1947 48.
In pursuance of the notice under section 23(2) of the Income tax Act, the assessee appeared before the Income tax Officer, Calcutta, and produced all his books of account, including his bank accounts.
The Income tax Officer, on an examination of the accounts, and after questioning the assessee, came to the conclusion that the assessee had made a profit of Rs. 74,000 odd from the transaction in question, which, according to him, was an adventure in the nature of trade.
Hence, on an examination of the assessee 's accounts, the Income tax Officer included the sum of Rs. 74,485/ as profit from an " adventure in the nature of trade " taxable under section 10 of the Income tax Act as one of the items of income accrued to the assessee during the assessment year 1948 49.
The assessee went up in appeal to the Appellate Assistant Commissioner of Income tax, and challenged the conclusion of the Income tax Officer that the sum of Rs. 74,000 odd was profit from an adventure in the nature of trade.
It was also taken as one of the grounds of appeal by him that in any event, the receipt accrued to the assessee only in 1950, after the transaction of sale had been completed as between the Rani 's nominee and the Society.
The Appellate Assistant Commissioner did not agree with the Income tax Officer that the assessee was not in a position either to complete the transaction of purchase by paying the full amount of consideration, or to erect a building thereon, or to use the land in any other way.
He pointed out that under the Scheme, the Society had offered terms of purchase on instalments and on execution of a mortgage in respect of the vended property to the extent of 50% of the consideration money.
He also pointed out that the assessee bad considerable investments to the extent of Rs. 2,45,000/ in shares of different limited concerns.
He, therefore, came to the conclusion that the assessee was a man of means, and that it could not be said that he had not intended to purchase the plot for his own use.
He further hold that the motive of making a profit at the time of the purchase, had not been established by the Department, 852 and that it was a " solitary transaction ".
On these findings, he found himself unable to confirm the finding of the Income tax Officer that the profit was from an adventure in the nature of trade.
He took the view that the appellant had made an investment which had appreciated considerably in value, and that it was undoubtedly a case of appreciation of capital.
Treating it as a " Capital Gain ", he came to the conclusion that as the payment bad been made in 1947, the gain accrued in that year and not in the year 1950, as contended on behalf of the assessee.
In the result, he made him liable to pay Capital Gains tax.
The Department went up in appeal to the Incometax Appellate Tribunal, which, by its judgment dated March 26, 1954, allowed the appeal.
The Tribunal pointed out that the assessee was not a man of such large means as to think of acquiring the plot for his own residential or business purposes.
The admitted shares worth Rs. 2,45,000/ standing in his name, the Tribunal pointed out, were held by the assessee, in respect of the major portion, on behalf of other members of his family.
The Tribunal also observed that Rs. 32,748/ paid by the assessee to the Society had been paid out of borrowed money.
This conclusion does not appear to have been well founded in fact.
The accounts do show credits in favour of the assessee of a larger amount.
The Tribunal also pointed out that undoubtedly the " assessee is a keen businessman and has a number of varied business interests.
Admittedly, he is a director of about a dozen concerns and managing director of two or three.
Her is /8/ annas partner in an Engineering concern which is carrying out a number of construction and other contract works.
He is an Engineer by profession and a resident of Calcutta.
" The Tribunal based its conclusion that the sale was an adventure in the nature of trade, and that the profits, thus made, were assessable to income tax, on the following grounds: That the payment by the assessee to the Co. operative Society, of Rs. 32,748/ , came out of a loan taken for the purpose from a company (which conclu.
sion, as already pointed out, is not borne out by the entries in the books of account of that company); 853 2.
That the assessee could not have paid the balance of Rs. 98,000 odd, the outstanding amount of the purchase money, to the Insurance Company ; 3.
That the assessee had no means to construct a house on the land, and lastly, 4.
That the site itself fetched no income, thus, showing that it could not be an investment but only an excursion into the realm of trade.
Against this decision of the Appellate Tribunal, the assessee moved this Court and obtained special leave to appeal.
Before we deal with the main question in controversy in this appeal, we would like to make some general remarks on the nature of the questions involved in this case.
It is not disputed on behalf of the respondent that the question now before us, is a question of law, or a mixed question of fact and law, as has been recently laid down by this Court in the case of G. Venkataswami Naidu and Co. vs The Commissioner of Income tax (1).
Speaking for the Court, Gajendragadkar, J., after a detailed discussion of the decisions of this Court Meenakshi Mills, Madurai vs Commis.
sioner of Income tax, Madras (2) and The Oriental Investment Co.,, Ltd. vs Commissioner of Income tax, Bombay (3), and of the House of Lords, in Edwards vs Bairstow (4), came to the conclusion that the question arising in the case, is a mixed question of law and fact, and, therefore, open to examination by this Court.
In G. Venkataswami Naidu and Co. vs The Commissioner of Income tax (supra), the question raised, was exactly similar to the question now before us, though in a different setting of facts.
His conclusion may be stated in his own words as follows: " In other words, in reaching the conclusion that the transaction is an adventure in the nature of trade, the tribunal has to find primary evidentiary facts and then apply the legal principles involved in the expression " adventure in the nature of trade " used by section 2, sub section
It is patent that the clause 'in the nature of trade ' postulates the existence of certain elements in (1) ; (2) ; (3) ; (4) ; 854 the adventure which in law would invest it with the character of a trade or business;.
and that would make the question and its decision one of mixed law and fact." "In that view of the matter, this Court further pointed out that the more proper form of the question is " whether, on the facts and circumstances proved in the case, the inference that the transaction in question is an adventure in the nature of trade is in law justified.
" The recent decision of this Court has examined almost all the relevant cases decided in Indian as also English and Scotch Courts, and thus, our task in the present case, has been very much simplified.
It has further been observed in that case, more than once, that judicial opinion was unanimous that no general principles or universal tests could be laid down, which could govern the decision of all cases in which the question for determination is similar to the one now before us.
Each case must be determined on the total impression created on the mind of the Court by all the facts and circumstances disclosed in that particular case.
Hence, no decided case can, strictly speaking, be a precedent which could govern the decision of a later case, involving a similar question.
Those decisions can be used only by way of illustrations of the different view points which have a bearing on the decision of the case in hand.
It has also not been disputed that in a case where a transaction under examination, is not in the line of the business of the assessee, and is ail isolated or a single instance of a transaction like that, the burden lies on the Revenue to bring the case within the words of the statute, .namely, that it was an adventure in the nature of trade.
That the onus is on the Department, has been clearly laid down by Lord Garmount in the case of Commissioners of Inland Revenue vs Reinhold (1).
That was a case in which the respondent, the assessee, was a director of a company carrying on the business of WarehousemeD, and had bought four houses in January, 1945, and sold them at a profit in December, 1947.
He admitted that he had bought the property with a (1) , 393. 855 view to resale, and had instructed his agents to sell the same whenever a suitable purchaser was forthcoming.
The assessee was made liable for tax in respect of the profit made by him on the resale.
On an appeal by the assessee before the General Commis 7 sioners, it was contended on his behalf that the profit on the resale was not taxable.
On behalf of the Crown, it was contended that the transaction of purchase and sale in question, constituted an adventure in the nature of trade, and that, therefore, the profits arising out of the transaction, were chargeable to income tax.
The General Commissioners, being eqally divided, allowed the appeal.
It was held by the Court of Session (First Division) that the fact that the property was purchased with a view to resale, did not, of itself, establish that the transaction was an adventure in the nature of trade, and that, therefore, the determination by the Commissioners was justifiable in law.
The Court, in coming to that conclusion, took into account the con siderations that the respondent was not a property agent, and that his business was not, in any way, associated with the purchase and sale of estates.
It was an isolated transaction, even though the assessee had purchased a hotel and sold it again ten years previously.
The Court made a reference to the following observations of Lord Buckmaster in the case of Leeming vs Jones (1): ". . an accretion to capital does not become income merely because the original capital was invested in the hope and expectation that it would rise in value; if it does so rise, its realization does not make it income.
" Placing that decision along side of the present case, let us see what its salient features are.
Though the appellant is engaged in various types of business as a share holder or a director in limited liability concerns, as also in building contracts, dealing in landed estates is not in the line of his business.
If such a transaction were in the line of his business, it would not matter much whether, in the assessment year, he had several such transactions or only one.
Even a single (1) , 420. 856 transaction of dealing in landed estates, being a part of his business, would be liable to income tax, if a profit is made in that transaction.
But., admittedly, the transaction in question is the only one of its kind, ,rout of which the appellant has made a considerable profit which appears to have been in the nature of a windfall.
When he entered into the agreement with the Society for the purchase of the plot, in January, 1946, he had expected that at the end of the World War, the Government would release the property from its requisition, and that the Society will develop the land by laying the necessary roads and providing other amenities to the plot holders.
But as the Government did not release the property, and as the appellant was a businessman, who was interested in return from his capital, and as he had already paid Rs. 32,000 odd by way of advance towards the purchase price, and as in 1947, at the end of the Second World War, his business in contracts for building con structions, began to decline, he, naturally, thought of making the best of the bargain.
If he did not get out of the transaction, his financial difficulties in meeting his further liabilities under the agreement, as a result of slump in his main line of business, might lead to the forfeiture of the advance of Rs. 32,000 odd, he would naturally be on the lookout for a good purchaser.
He was lucky to find a lady with a lot of money to spare, who had, as he alleged, taken a fancy to the plot in question.
Thus, he could assign to her the benefit of his agreement with the Society on terms which were highly profitable to him.
There is no clear evidence in support of the inference of the Appellate Tribunal that the land was purchased with the sole intention of selling it later at a profit.
The Tribunal considered two alternatives in relation to this transaction one, that the land was purchased in order to build a residential house, and the second, that it was purchased in hope of selling it later for a profit.
The first alterna tive, the Tribunal rejected on the ground that " be does not seem to have very much of means at his disposal.
" That itself is a statement which does not bear close scrutiny.
During the two years previous to the year under assessment, the appellant had 857 been assessed to income tax on Rs. 53,000/ and Rs. 59,000/ , as already indicated.
That does not lend countenance to the surmise that the appellant was not a man of means.
Admittedly, he held marketable shares of the value of about 2 1/2 lacs of rupees, though all those shares standing in his name, were not claimed by him as his omn.
Apparently, he was carrying on a lucrative business during the immediately preceding years.
It is true that in the year of assessment, on his own showing in his income tax return, he had suffered a loss, but that may have been a turning point in his fortunes, and that would not necessarily lead to the inference that he was not in a sound financial position on the date of the agreement with the Society.
It may be that his hopes of flourishing in his business in the years to come, were not realized after the conclusion of the Second World War.
But even assuming that the Tribunal was right in its conclusion as to the second alternative, namely, that the purchase was made in the hope of making a profit after re sale, the matter is not concluded.
In this connection, a reference may be made again to the decision in Commissioners of Inland Revenue vs Reinhold (supra), at p. 392, where it was argued on behalf of the Revenue that a profit made in a transaction which was in the nature of an investment in the hope and expectation of a rise in price, may be an accretion of capital, but that if at the time of the purchase, the purchaser had resolved to sell the property in the event of a profit being made, and instructions had been issued to his agents accordingly, the transaction could not have been treated as an investment, but was truly an adventure in the nature of trade, and the profit thus made, must be treated as income.
This argument was not accepted as valid.
In that connection, reference was made to the following observations of Lord Dunedin, in the case of Jones vs Leeming (1) : ". .
The fact that a man does not mean to hold an investment may be an item of evidence tending to show whether he is carrying on a trade or (1) , P. 423.
108 858 concern in the nature of trade in respect of his invest ments, but per se it leads to no conclusion whatever.
" The decision of the House of Lords in the case afore.
said, which is also reported in , is rather ins.
tructive.
In that case, the appellant was a member of a syndicate of four persons, formed to acquire an option over a rubber estate, with a view to selling at a profit.
The option was secured, but the estate was considered to be too small for re sale.
An option over another joint estate was accordingly secured, and it was decided to resell the two estates to a public company to be formed for the purpose.
Another member of the syndicate undertook to arrange for promotion of the company.
The syndicate 's rights were transferred to a company.
This company floated another company to which the properties were sold.
The syndicate 's profits were divided between the members, and the appellant, as one of the members of the syndicate, was assessed to income tax in respect of his shares of the profits.
The General Commissioners, on appeal, were of the opinion that the interest in the property in question had been acquired with the sole object of making a profit, and that there was no intention of holding it as an investment.
Hence, the assessment to income tax was affirmed.
The King 's Bench Division, at the first hearing, remitted the case to the General Commissioners for a finding as to whether there was a concern in the nature of trade, and the Commissioners found that the transaction was not such a concern.
It was held by the House of Lords that the profits were not liable to tax on the basis that they were income from an adventure in the nature of trade.
Viscount Dunedin, in the course of his opinion, referred, with apparent approval, to the dictum in Ryall vs Noare (1), to the following effect: " A casual profit made on an isolated purchase and sale, unless merged with similar transactions in the carrying on of a trade or business is not liable to tax." He also approved of the following dictum of Lawrence, L. J., in the case of Leeming vs Jones (2) :_ (1) , 454.
(2) , 302, 859 " It seems to me in the case of an isolated transaction of purchase and re sale of property there is really no middle course open.
It is either an adventure in the nature of trade, or else it is simply a case of sale and re sale of property." Lord Warrington of Clyffe, in the course of his opinion in the case of Jones vs Leeming (1), made the following observations, which apply with full force to the facts and circumstances of the present case: ' " Here we have a case of the acquisition of an item of property and a profit made by the transfer thereof to another.
In this I can find nothing but a profit arising from an accretion in value of the item of property in question and the realization of such enhanced value.
There is in this nothing in the nature of revenue or income.
The fact that the parties intended from the first to make a profit if they could does not in my opinion affect the question we have to determine." As already indicated, the line of demarcation between cases of isolated transactions of purchase and sale being ventures in the nature of trade, and those which are not such ventures, if any, is very thin.
The cases in which single transactions have been held not to belong to the class of ventures in the nature of trade, have been noticed above, and the considerations which led those courts to hold that such ventures were not liable to income tax, apply to the case in hand.
On the other side of the line, there is a series of cases in which single transactions have been held to have been ventures in the nature of trade, for reasons which do not apply to the present case.
We may notice some of the typical cases which illustrate the reasons for which a single transaction was brought within the ambit of a venture in the nature of trade.
The case of Californian Copper Syndicate (Limited and Reduced) vs Harris (Surveyor of Taxes) (2), related to the purchase and sale of a mining property.
In that case, a company had been formed for the purpose, inter alia, of acquiring and re selling a mining property.
That company acquired some mining property (1) , 425.
(2) 860 and sold the same to a second company, consideration for the sale being paid up shares of the latter company.
It was held by the Court of Exbhequer (Scotland) Second Division, that the difference between the purchase price and the value of shares for which the property was exchanged was a profit assessable to incometax.
It was pointed out by the Court that the case involved a deal which was a "proper trading transaction, one within the Company 's power under their Articles, and contemplated as well as authorised by their Articles ".
The ratio of the decision in that case appears to have been that though it was a single transaction in which profit was made, it was an adventure in the nature of trade, being in the line of the business adopted by the company.
The next case of Martin vs Lowry (1) is another instance of a single transaction of purchase of property being treated as a venture in the nature of trade, on account of the very nature and magnitude of the commodity dealt in by a person whose usual line of business was wholly outside the scope of the new venture.
That was a case in which a wholesale agricultural machinery merchant, who never had any dealings in linen trade, purchased from the Government its surplus stock of aeroplane linen (some 44 million yards).
In order to dispose of this huge stock of linen purchased by him, the assessee embarked upon an extensive advertising campaign, rented offices and engaged expert staff to organize the sales.
The number of transactions of sale of that huge stock of linen, ran into thousands.
The House of Lords affirmed the determination of the courts below, holding that the transaction amounted to the carrying on of a trade of which the profits were chargeable to income tax and Excess Profits Duty.
Another case in the same volume, is The Commissioners of Inland Revenue vs Livingston and others (2).
In that case, the persons sought to be taxed were, a ship repairer, a blacksmith and a fish salesman 's employee, who joined in the venture of purchasing a cargo vessel with a view to converting it into a steam drifter, and selling it.
That was a new line of business for them.
(1) (2) 861 Extensive repairs and alterations to the ship were carried out, and the result was a sale of the converted vessel at a profit.
It was held that the transaction, though an isolated one, was a venture in the nature of trade, and thus, liable to income tax.
The ratio of the decision was stated in the following words of the Lord President: " If the venture was one consisting simply in an isolated purchase of some article against an expected rise in price and a subsequent sale it might be impossible to say that the venture was 'in the nature of trade ' ; because the only trade in the nature of which it could participate would be the trade of a dealer in such articles, and a single transaction falls as far short of constituting a dealer 's trade, as the appearance of a single swallow does.
of making a summer.
The trade of a dealer necessarily consists of a course of dealing, either actually engaged in or at any rate contemplated and intended to continue.
" The case of Rutledge vs The Commissioners of Inland Revenue (1), is another illustration of a case in which a single transaction of purchase and sale, was held to be an adventure in the nature of trade for the reason that the commodity purchased was of such a nature and of such a vast magnitude that it could not have possibly been intended for the consumption of the purchaser himself or his family.
In that case, the assessee was a money lender who was also interested in a cinema company.
In the interest of his cinema business, he happened to be in Berlin, and there took the opportunity of purchasing, for a very cheap price, a very large quantity (one million rolls) of toilet paperfor pound 1,000 and realised pound ,12,000 by sale of that com modity.
He was taxed on the nett profit of pound 10,895.
It was held by the Court of Session, Scotland (First Division), that it was certainly an adventure, because the assessee made himself liable for the purchase of that vast quantity of toilet paper, obviously for no other conceivable purpose than that of re selling it for a large profit.
As regards the question whether the adventure was in the nature of trade, it was contended (1) 862 on behalf of the assessee that it was essential to the idea of trade that there should be a continuous series of trading operations.
The Court rightly pointed out that the question was not whether it was a trade but ` Whether it was a venture in the nature of trade.
Hence, though the single transaction of purchase and sale, may not have amounted to what is ordinarily understood by trade in the sense of a series of transactions, it was certainly a venture in the nature of trade, because from the very beginning, the intention was manifest that the purchase was made not with a view to utilizing the commodity for the personal use of the purchaser, but with a view to making profit by a resale, which was apparent from the very nature and magnitude of the commodity purchased.
Another illustration of the same rule is to be found in the case of The Balgownie Land Trust, Ltd. vs The Commissioners of Inland Revenue (1).
That was the case of a landed estate which was left by the owner to.
trustees with a direction to sell it.
The trustees, being unsuccessful in their efforts to sell the estate, formed a company with general powers to deal in real property, and transferred the estate to this company.
The company made certain other purchases of property by way of accretions to the original estate.
The property was sold in parts during the years 1921, 1924, 1926 and 1927.
The company was assessed to income tax for the profits from the sales of those lands.
The Court, confirming the assessment of the company to income tax on the profits made on those sales, held that the company was doing precisely what it meant to do, namely, carrying on business of a company dealing in a real estate.
The case of Commissioners of Inland Revenue vs Fraser (2), is another illustration of the rule that if a person enters into a single transaction outside his ordinary avocation of life, with the sole object of making a profit by re sale, it may amount to an adventure in the nature of trade.
In that case, a wood cutter bought, for re sale, whisky in large quantities, and without taking delivery of the whisky, sold it at a profit.
It was the assessee 's sole (1) (2) 863 dealing in whisky, but all the same, it was held to be liable to income tax on the ground that the nature of the transaction, with reference to the commodity dealt in in large quantities, which would not ordinarily be meant for personal or family consumption, may indicate that it was an adventure in the nature of trade.
We have set out the illustrative cases on the two sides of the thin line of demarcation that may possibly be said to distinguish one class of case from the other.
The question still remains, on which side of the line, the present case should be placed ? The learned Solicitor General placed strong reliance on the recent decision of this Court in G. Venkataswami Naidu & Co. vs The Commissioner of Income tax (supra).
The question, therefore, is whether the present case falls on the same side of the line as the recent decision of this Court, which had to deal with a similar question, as already indicated.
In that case, the assessee had purchased four plots under four different deeds.
During the time that the assessee was in possession of those plots, he made no efforts to put up any structures, or to utilize them in other ways.
The assessee was in a fiduciary position with the Mills contiguous to which the plots purchased, were; and it was also found that the assessee was in a position to influence the Mills to purchase those plots at a price favourable to him.
It was in that setting of the facts, that this Court made the following obser vations "When section 2, sub section
(4) refers to an adventure in the nature of trade it clearly suggests that the transaction cannot properly be regarded as trade or busi.
It is allied to transactions that constitute trade or business but may not be trade or business itself It is characterized by some pB`= of the essential features that makeup trade or business but not by all of them; and so, even an isolated transaction can satisfy the description of an adventure in the nature of trade.
" Can it be said, in the setting of the facts and circumstances of the present case, set out above, that the transaction in question has such characteristics as 864 to point to the conclusion that itwas a venture in the nature of trade ? It was suggested that the area of the land in question, namely, three quarters of an acre in the suburbs of Calcutta, was large enough to indicate that the assessee would not have intended to take it for his own use and occupation.
In the first place, the area is not so large as to lead necessarily to the inference that it could not have been meant to be used by him in the way of his business or for his own residence.
Certainly, the Society, having acquired more than 500 bighas of land in a lot, could not claim that the land was meant for its own use.
On the other side, it was meant to be developed into small building sites, as they actually did.
But the Society had, without developing the area, sub divided it into building sites, one of which was sought to be acquired by the appellant.
He was carrying on an engineering concern, and it is not, therefore, unlikely that he may have intended, as he alleged, to put up a small workshop on a portion of the land to be acquired, and to build his own residential house on the other portion.
It was not suggested that the appellant had his own house in Calcutta, and was, therefore, not in need of a building site.
At the time he entered into the agreement of purchase with the Society, he was doing good business, as is shown by the large amounts on which he was assessed to income tax.
It was not unnatural for him to look forward to continue his business in as prosperous a way as he had been doing in the recent past, and thus, to raise sufficient funds to build his own residential house, or to construct a workshop for his own engineering business.
Hence, the possibility or the probability that the site may appreciate in value, would not necessarily lend itself to the inference that the transaction was a venture in the nature of trade, as distinguished from a capital investment.
In all the circumstances of this case, the total impression created on our mind, is that it has not been made out by the Department that the dominant intention of the appellant was to embark on a venture in the nature of trade, when he entered into the agreement which resulted in the profits sought to be taxed.
865 For the aforesaid reasons, we would allow this appeal, and set aside the orders of the Tribunal below with costs.
KAPUR, J.
I regret I am unable to agree.
that the appeal in the present case should be allowed and my reasons are these: On the facts which were proved the Income tax Appellate Tribunal came to the conclusion that the purchase of land by the appellant was an adventure in the nature of trade and profit arising therefrom was assessable to income tax.
In coming to this conclusion the Appellate Tribunal took into consideration certain facts; (1) that the only payment the appellant made for the purchase of the land was of a sum of Rs. 32,748 which he borrowed from his company and he was not in a position to pay the balance of Rs. 98,246; (2) the appellant had no money available at all, to pay the part of the purchase price of Rs. 1,30,994 and be had no means to construct the house ; (3) that his financial resources were such as not to justify the purchase of the plot of land for the construction of a house; (4) the site itself fetched no income but it was a kind of investment with the hope of making a profit out of it and the land was purchased only for the purpose of sale; (5) that the appellant being a keen businessman had intimate knowledge of the trend of the rise in prices of land and therefore the purpose for which he made the purchase was in order to make profit and not merely an investment.
As against these circumstances various facts were brought to our notice which it has argued militate against the findings of the Tribunal : (1) that the appellant was carrying on an engineering concern and therefore it was not unlikely that he intended, as he alleged, to put up a small workshop on that portion of land; (2) that the appellant did not have his own house in Calcutta and therefore he could have been in need of a piece of land on which he could build a house and (3) that at the time he entered into an agreement of purchase he had a prosperous business which is ,shown by the amount of income tax which he paid for 109 866 two years and he could legitimately expect that his business would continue to remain prosperous; (4) that these facts could not lead to the necessary consequence that the transaction was a venture in the nature of trade and that it was not the dominant intention of the appellant at the time when he entered into the transaction to embark upon a venture in the nature of trade.
Under the Income tax law it is the exclusive function of the Appellate Tribunal to find facts.
Even though the powers of this Court under article 136 are very wide yet they have to be exercised within the limits imposed by the decisions of this Court and one such limitation is that this Court will not ordinarily interfere with findings of fact.
It has been held by this Court that the question whether an adventure is in the nature of a trade or not is a mixed question of law and fact.
The facts have to be found by the fact finding authority and to those facts the law has to be applied and whenever it is necessary to get a correct finding on a question of fact it is the fact finding authority which is called upon to consider the evidence and give its finding.
(See G. Venkataswami Naidu & Co. vs The Commissioner of Income tax (1)).
Therefore if there arose a question of law out of the order of the Appellate Tribunal then the appellant could have had the case stated to the High Court under section 66(1) and if the Appellate Tribunal refused to state the case it was open to the appellant to have the case stated under section 66(2) of the Indian Income tax Act.
No doubt he did make an application to the Appellate Tribunal to state the case under section 66(1) but he did not make any application to the High Court till 1957, after he had obtained special leave in this Court and the High Court dismissed the petition on the ground that it was barred by time.
The position comes to this that the tribunal refused to state the case under section 66(1) of the Income tax Act and the appellant did not apply to the High Court under section 66(2) till long after the period of limitation had expired.
In the circumstances the courses open to this (1) ; 867 Court would be (1) to set aside the order of the Appellate Tribunal and remit the case to the Tribunal for decision in accordance with the observations made by this Court as was done in the case of Omar Saly Mohammed Sait vs The Commissioner of Income tax (1) or it may be open to this Court to direct a reference as was done in Jagta Coal Company vs The Commissioner of Income tax (2).
Then in Dhakeswari Cotton Mills vs The Commissioner of Income tax (3) this Court only remitted the case to the Appellate Tribunal to proceed in accordance with law on the ground that certain principles of natural justice had been violated and the assessee was not given an opportunity to rebut the evidence against him.
The Income tax law has prescribed a procedure to have questions of law determined and an assessee cannot byepass the various steps prescribed under that law.
The position therefore comes to this that if there is no evidence to support the finding the question is one of law which would fall under sections 66(1) and 66(2) of the Income tax Act; (2) if in giving its finding the Appellate Tribunal disregards certain pieces of evidence or proceeds in a manner which is violative of natural justice the finding will be vitiated but if there is evidence to support the finding of fact and these findings are properly arrived at then it will be a pure question of fact which this Court will not ordinarily interfere with ; (3) if there is an error of law arising as above or because of misinterpretation of the Income tax law then the case has to be stated to the High Court in the manner provided in the Income tax Act and if the assessee does not choose to follow the procedure prescribed then he cannot come to this Court disregarding the remedy provided by the Income tax law and (4) the legal effect of facts found where the point for determination is a mixed question of law and fact would fall under section 66(1) & (2) of the Income tax Act.
(See G. Venkataswami Naidu & Co. vs The Commissioner of Income tax (4) ).
This is a case in which certain essential facts have (1) C.A. No. 15 Of 1958 (2) C. A. NO. 337 Of 1956.
(3) ; (4) ; 868 not been considered by the Appellate Tribunal and therefore it is a case which should be remitted to the Income tax Appellate Tribunal to determine the facts in accordance with the observations made by this ,,Court and in the light of those findings to determine whether the transaction was an adventure in the nature of a trade or not.
I would order accordingly.
ORDER OF THE COURT In view of the opinion of the majority, the appeal is allowed with costs.

summary:
The question for decision in this appeal was whether a single transaction of sale of land measuring about three quarters of an acre was an adventure in the nature of trade so as to make it liable to income tax.
The assessee appellant, an Engineer by profession, was engaged in various business activities including that of an engineering firm but, admittedly, had no dealing, except the one in question, in respect of land.
In 1946 be entered into an agreement with the Hindusthan Co operative Insurance Society Ltd. for the purchase of the land in question and paid a sum of Rs. 32,748 in two instalments, being 25% of the estimated total price of the land.
As his construction activities declined and the Government, who had requisitioned the land, were not immediately releasing it, the appellant sold his rights under the agreement to a third party in 1947 and thereby received a sum of Rs. 74,000 odd in excess of the amount paid by him to the Society.
The land, however, was not released by the Government until 1949.
The Income tax Officer held that the transaction was an adventure in the nature of trade and the said sum was a profit therefrom, taxable under section 10 of the Incometax Act, and included it in the assessable income.
The Appellate Assistant Commissioner, in appeal, held that the assessee, a man of means, had intended to purchase the land for his own use, and that the motive of profit was entirely absent when the purchase was made and that as it was a case of appreciation of capital, he was liable to pay Capital Gains tax.
The Appellate Tribunal on appeal by the Department, reversed the findings and the decision of the Appellate Assistant Commissioner and affirmed that of the Income tax Officer.
After the assessee had obtained from this Court special leave to appeal, he made an application to the High Court under section 66(2) of the Income tax Act, which that Court dismissed as being barred by limitation.
Held, (per Bhagwati and Sinha, JJ., Kapur, J., dissenting) that admittedly the transaction in question being a single instance of its kind, and not in the line of the business of the assessee, it was for the Department to prove that the dominant intention of the appellant, when he entered into the agreement with the Society, was to embark on a venture in the nature of 847 trade as distinguished from a capital investment, and they having failed to do so, the appeal must succeed.
Commissioners of Inland Revenue vs Reinhold, , applied.
There could be no doubt, as held by the Court, that the question for decision involved in such cases was one of law or a mixed question of fact and law.
G. Venkataswami Naidu and Co. vs The Commissioner of I come tax; , , referred to and distinguished.
The line of demarcation, however, between an isolated trans action and a venture in the nature of trade was very thin and each case had to be decided on the total impression all its facts and circumstances made on the mind of the judge.
Case law reviewed.
KAPUR, J. Even though the powers of this Court under article I36 of the Constitution were very wide, they had to be exercised within the limits imposed by its own decisions and one such limitation was that this Court would not ordinarily interfere on questions of fact.
Since the question involved in the instant case was a mixed question of law and fact, the facts should properly be found by the body whose exclusive function under the Income tax Act was to do so.
G. Venkataswami Naidu & Co. vs The Commissioner of Income tax; , and Dhakeswari Cotton Mills vs The Commissioner of Income tax, [1955] i S.C.R. 94I, referred to.
Nor could an assessee be allowed to by pass the procedure prescribed by sections 66(1), 66(2) of the Income tax Act to have question of law determined.
Since, however, the Appellate Tribunal had, in the instant case, failed to consider certain essential facts, the case should be remitted to it for a proper decision in the light of the observations made by this Court.


judgement:
Appeal No. 321 of 1958.
Appeal by special leave from the Award dated the September 27, 1957 of the Industrial Tribunal, Bombay, in Reference (I.T.) No. 119 of 1957.
C. K. Daphtary, Solicitor General of India, J. B. Dadachanji and section N. Andley, for the appellant.
Rajani Patel and Janardan Sharma for respondent No. 1. 1959.
May 5.
The Judgment of the Court was delivered by WANCHOO J.
This is an appeal by special leave against the award of the Industrial Tribunal, Bombay, in a dispute between the Tata Oil Mills Co. Ltd., Bombay (hereinafter referred to as the company) and its workmen, in the matter of profit bonus for the year 1955 56.
The dispute arose over a demand made by the workmen for payment unconditionally as bonus for the year 1955 56 of a sum equivalent to four months ' wages/salary for all employees drawing wages/salary of less than Rs. 500 per menses.
This dispute was referred to the Industrial Tribunal by the Government of Bombay by its order dated June 18, 1957.
The company had already paid 21 months ' basic wages as bonus to its workmen and the real dispute was thus only about the remaining bonus for a month and half.
3 The case of the workmen was that the company had made record profits during the year and declared a dividend of 12 per centum free of income tax, the workmen were getting much less than the living wage and the dearness allowance was not sufficient to fill the gap, and, therefore, profit bonus at the rate of four months ' basic wages should be granted.
The company, on the other hand, contended that it was paying graded scale of wages with annual and biennial increments and had already paid profit bonus for 2 1/2 months.
It was not possible for the company to pay more than that as bonus, as the available surplus according to the Full Bench formula did not justify it.
It was also pointed out that though the company started as far back as 1917, the shareholders began to get dividends only from 1940, and, therefore, a dividend of 12 per centum free of income tax was in the circumstances not high.
The company also claimed that in making calculations for the purposes of the Full Bench formula certain items of extraneous income should not be taken into account.
Next it claimed that a profit of Rs. 3 lacs appearing in the accounts due to the change in the method of valuation was no real profit due to the efforts of labour and should not be taken into account in arriving at the available surplus.
Lastly, it also claimed that it was entitled to 4 per centum interest on the working capital, including the amount in the depreciation fund.
The Industrial Tribunal disallowed the claim of the company on all these three points and after making relevant calculations came to the conclusion that there was a sufficient surplus available to permit the grant of bonus for 3 1/2 months calculated on basic wages and therefore awarded the same.
The company thereupon applied for special leave to appeal, which was granted; and that is how the matter has now come up before us for decision.
We shall first take the question of extraneous income.
Six items were sought to be excluded by the company as extraneous income, and they were these: 4 In lacs Rs. (i) Income earned by way of rent, light and power. .0 24 (ii)Estate Revenue. 0 08 (iii) Profit on sale of empty barrels 0 89 (iv) Excess provision for expenses in the previous year 0 31 (V) Refund of income tax on revision of Cochin assessment of Excess Profits Tax 0 49 (vi) Sale proceeds of tin cans, scraps, logs, planks, gunnies &c. 2 11 Total 4 12 The Tribunal rejected the claim with respect to all these items, though in the judgment it mentioned only items (i), (ii), (iii) and (vi) as those in dispute.
Apparently, items (iv) and (v) were not in dispute before it; but while making calculations, it seems to have lost sight of this and disallowed the claim with respect to these two items also.
Learned counsel for the respondents appearing before us has stated that the claim with respect to items (iv) and (v) was conceded by the workmen before the Tribunal and it seems that by over sight these items were not excluded by it.
He fairly concedes that these two items may be excluded from consideration in making calculations for arriving at the available surplus.
We are thus left with four items, which were disallowed by the Tribunal.
The reason given by the Tribunal for disallowing these items was that they formed part of the profits earned in the course of the company 's business and there was no good reason for deducting them from the profits.
It further went on to say that as regards income earned by way of rent, light and power it was not disputed that expenditure in respect of buildings from which the rent was derived, such as on repairs and maintenance, is included in the expenditure side of the account, and taxes and rates for these buildings were paid by the company.
There was thus no reason for deducting this amount from the profits.
It did not consider the 5 other three items specifically and was content to include them on the general ground that they were profits earned in the course of the company 's business.
Mr. Daphtary appearing for the company has drawn our attention to a number of cases decided by industrial tribunals as well as labour appellate tribunals, where such items of income have been excluded on the ground that they are extraneous income unrelated to the efforts of the workmen.
We do not think it necessary to refer to all these decisions and it is sufficient to say that these decisions support the contention put forward.
The main reason given in these decisions for excluding what, is termed as extraneous income is that they are unrelated to the efforts of workmen.
We may refer only to two of these decisions of the labour appellate tribunal in this connection.
In The Mill Owners ' Association, Bombay vs The Rashtriya Mill Mazdoor Sangh, Bombay (1) in which the Full Bench formula was evolved, the appellate tribunal remarked at page 1257: " No scheme of allocation of bonus could be complete if the amount out of which a bonus is to be paid is unrelated to employees ' efforts.
" The Appellate Tribunal reiterated this in Shalimar Rope Works Mazdoor Union, Howrah vs Messrs. Shalimar Rope Works Ltd., Shalimar, Howah (2) by observing at page 372 that " it is however too late in the day to question the view that there are profits unrelated to workers ' efforts and referred to as 'extraneous profits ' and that such profits must be left out of account in deciding the question whether there is available surplus in any particular year." Income received by way of rent of quarters and by sale of scrap materials has generally been treated as extraneous income by the industrial tribunals on the basis of these decisions of the Labour Appellate Tribunal.
It is the correctness of this view which has been canvassed before as in this appeal.
Reliance has also been placed by some tribunals on the decision of this Court in Muir Mills Co. Ltd. vs Suti Mills Mazdoor (1) (2) 6 Union, Kanpur (1), in this connection.
This Court ,observed at page 998 as follows: "There are however two conditions which have to be satisfied before a demand for bonus can be justified, and they are, (1) when wages fall short of the living standard and (2) the industry makes huge profits part of which are due to the contribution which the workmen make in increasing production.
" It was further observed at page 999 " It is therefore clear that the claim for bonus can be made by the employees only if as a result of the joint contribution of capital and labour the industrial concern has earned profits.
If in any particular year the working of the industrial concern has resulted in loss there is no basis nor justification for a demand for bonus.
" It is clear from these observations that this Court was not dealing with the question of extraneous income as such in the Muir Mills Case (1).
The principles laid down in that case show that there must be profits in the particular year for which bonus is claimed, resulting in an available surplus before profit bonus can be awarded.
It is only when profits are made that profit bonus can be awarded, subject to two further conditions, namely, (1) wages fall short of the living standard and (2) the industry makes large profits part of which are due to the contribution which the workmen make _in production.
It is this last condition which seems to have been relied upon by industrial tribunals in holding that there must be direct connection between the efforts of labour and the profits, and unless that direct connection is established the profits must be treated as unrelated to the efforts of labour and thus become extraneous income.
There is no doubt that there must be contribution of the workmen in earning profits before they are entitled to profit bonus; but it was not laid down in the Muir Mills Case (1) that direct connection between the efforts of the workmen and the particular item of profit earned must be established before the profit can be taken into account for the purposes of arriving at the available (1). 1955 (1) S.C.R. 991. 7 surplus.
An industrial concern carries on a certain business.
In carrying on that business it employs.
capital as well as labour, and generally speaking the profits earned in the normal course of business at the end of year are the result of the joint effort of capital and labour.
Even so, it may be recognized that there may be instances of extraneous income for the purpose of the Full Bench formula due (i) either to some part of the profits not having been earned in that year, (ii) or to some part of profits arising out of fortuitous circumstances altogether unconnected with the efforts of labour.
A third category may be the income arising out of sale of fixed or capital assets.
Such income or profit may be called extraneous income as either it did not really arise in that year or though it has arisen in that year, labour has not contributed anything towards its accrual; it may therefore not be taken into account in calculations according to the Full Bench formula.
But apart from these cases, we cannot see how income arising during the year in the normal course of business of the concern can be called extraneous income merely on the ground that no direct connection between the efforts of labour and the accrual of the income has been established.
In this very case we find an instance of the first category in two items relating to return of excess provision for expenses and refund of excess profits tax.
These two amounts have gone to swell the profits of this year; but they have not arisen in this year and may, there fore, properly be treated as extraneous income.
An instance of the second kind is to be found in the profit of Rs. 3 lacs made in this year by a change in the method of valuation of the company 's assets, which is entirely unconnected with the efforts of labour.
But so far as the other four items are concerned, they are earned by the company in the normal course Of its business and there is no reason why they should be excluded on the ground that it has not been proved that they are the result of direct efforts of, labour in this year.
Let us take these four items one by one.
The first is the item of income earned by way of rent, light and 8 power.
It is well known that many industrial concerns provide amenities for their workmen by building quarters, which are provided with light and power from the concern 's power house.
The quarters and power house are built out of capital or profits earned in past years.
If they are built out of capital, there is provision for a return which is generally at 6 per centum on the paid up capital.
Even if they are built out of past profits, the depreciation and rehabilitation charges fall on the gross profits before the available surplus is arrived at.
Besides, expenditure with regard to repairs and maintenance, and rates and taxes is all paid out of the income of the concern before the gross profits are arrived at.
In other words these expenses are paid out of the profits in the earning of which the workmen have contributed their labour.
How can the company claim to exclude the rent etc., from the profits while meeting the expenditure relating to such assets out of the profits, part of which is attributable to the efforts of labour ? In short, income by way of rent, light and power arises in the normal course of business of the concern and there is no reason why a direct contribution by labour during the year in question must be insisted upon in the case of such income.
The company must also be employing some labour for purposes of maintenance and repairs of the quarters and powerhouse, even though the labour may not be wholly allocated to this work only.
We are, therefore, of opinion that income from rent, light and power arises in the normal course of business of a concern and cannot be treated as extraneous income in the sense described above.
The next item is estate revenue.
We are told that the company has coconut groves, which produce coconuts used in preparing oil which is one of the main items of the company 's business.
We are also told that sometimes the entire produce of these groves is not used in the manufacture of oil and therefore some part of the produce is sold.
This income is out of this part sold in the market.
Here again the income arises in the normal course of business and the expenses for looking after and maintaining the groves are paid 9 by the company and entered into its account.
The company must also be employing labour to look after the groves.
In these circumstances.
we fail to see why this income by sale of surplus coconuts should be excluded from the profits for the purpose of the Full Bench formula.
Then we come to the profit on sale of empty barrels and sale proceeds of tin cans, scraps, logs, planks, gunnies etc.
These items may be taken together, for the nature of the receipt is the same, though on account of the method of accounting employed, the income in the case of barrels is shown as profit while in the case of scraps etc., it is shown as sale proceeds: It is said that this is extraneous income because it is unrelated to the efforts of labour.
We cannot accept this contention, for this income again is in the normal course of business.
Further when the company buys chemicals (for example), it pays for the chemicals as well as the containers, namely, the barrels.
When the chemicals are used up these empty barrels are sold.
Whatever is the income from the sale of these barrels is in reality a reduction in the cost price of chemicals to the company, though by the method of accounting employed it may appear as profit on the sale of barrels.
We see no reason why the reduction in cost price of chemicals should not be taken into account for the purpose of arriving at gross profits in making calculations for the Full Bench formula.
Some scraps are normally left over in the process of manufacture.
Whatever income is derived from such scraps also goes to reduce the cost price of materials used in production and thus to increase the profits.
We do not see: why this income arising in the normal course of the company 's business should not be taken into account on the plea that labour has not, directly contributed in its accrual.
We are, therefor, of opinion that all these four items were rightly taken into account by the Tribunal in arriving at the gross.
profits.
Then we come to the profit of Rs. 3 lacs made by a change in the method of accounting.
The Tribunal did not accept this income as extraneous and in so doing it fell into error.
This income of Rs. 3 lacs has 10 nothing whatsoever to do with the efforts of labour, even though it has arisen this year.
It has arisen out of a fortuitous circumstance inasmuch as this year there was a change in the basis of valuation of stock.
It is not income in the normal course of business, because it is not likely to arise ever again.
In the circumstances this income of Rs. 3 lacs must be treated as extraneous income and excluded for the purpose of calculations based on the Full Bench formula.
The last item with which we are concerned is the return on the amount of depreciation reserve used as working capital.
An affidavit was made on behalf of the company that it had used its reserve funds comprising premium on ordinary shares, general reserve, depreciation reserve, workmen 's compensation reserve, employees ' gratuity reserve, bad and doubtful debt reserves and sales promotion reserve as working capital.
The Tribunal, however, allowed return at 4 per centum on a working capital of Rs. 31.88 lacs.
This excluded the depreciation reserve but included all other reserves which were claimed by the company and having been used for working capital.
The Tribunal gave no reason why it excluded the amount of the depreciation reserve in arriving at the figure of working capital.
A return is allowed on the reserves used as working capital on the ground that if these reserves are not used for this purpose, the concern would have to borrow money and pay interest on that.
This being the basis on which a return on reserves used as working capital is allowed, there is no reason why, if there is in fact money available in the depreciation reserve and if that money is actually used during the year as working capital, a return should not be allowed on such money also.
Further if the money has been converted into such assets as stock in trade and stores etc.
, (i.e., other than capital or fixed assets), it will be obviously available from year to year to that extent as working capital subject to adjustments on account of loans, secured or otherwise.
Learned counsel for the respondents wanted to contest that the whole amount in the depreciation reserve was not available for being used as working capital.
It is enough to say that the 11 affidavit of the Chief Accountant filed on behalf of the company was not challenged before the Industrial Tribunal on behalf of the respondents.
It would, therefore, be impossible for us now to over look that affidavit, particularly when the Tribunal gave no reason why it treated the working capital as Rs. 31.88 lacs only.
So far therefore as the present year is concerned, we must accept the affidavit and hold that the working capital was Rs. 139.09 lacs.
It will, however, be open to the workmen in future to show by proper cross examination of the company 's witnesses or by proper evidence that the amount shown as the depreciation reserve was not available in whole or in part to be used as working capital and that whatever may be available was not in fact so used in the sense explained above.
In the present appeal, however, we must accept the affidavit of the Chief Accountant.
The Tribunal allowed 4 per centum interest on the working capital and that must be allowed on the total sum of Rs. 139 09 lacs.
We now come to the calculations in accordance with the Full Bench formula, subject to what we have said above: Rs. in lacs Rs. in lacs Profit for the year.
15 53 Add provision for (i) tax. 14 51 (ii) depreciation 119 75 (iii) bonus. 7 76 34 02 Gross Profits.
49 55 Less extraneous income 3 80 Balance. 45 75 Less notional normal depreciation 11 12 Balance. 34 63 Less income tax payable according to Meenakshi Mills case (1) (Per Note A Below). 15 90 Balance. 18 73 12 Rs. in lacs Rs. in lacs Less dividend on paid up 5 54 capital Less return on Reserves used 5 56 as working capital of Rs. 139 09 @ Rs. 4 per cent.
11 10 Available surplus 7 63 Less bonus actually paid 7 90 Less rebate of income tax at 3 40 /7/ in the rupee. 4 50 Amount remaining with the Company. . 3 13 Note A. Rs. in lacs Gross Profits 49 55 Less total statutory depreciation 13 19 Balance. 36 36 Income tax at /7/ in 15 90 a rupee The available surplus of profit thus works out at Rs. 7 63 lacs.
The company has, already paid 2 1/2 months ' bonus amounting to Rs. 7 90 lacs to the workmen.
The company would be entitled to a rebate of Rs. 3 40 lacs on this sum and therefore the amount which the company has actually to pay is Rs. 4 50 lacs.
This will leave a sum of Rs. 3 13 lacs out of the available surplus with the company for its use.
It will be seen that more than half the available surplus has already gone to labour according to what the company has paid.
There are three sharers in the available surplus, namely, the industry, share holders and labour.
In the circumstances no case has been made out for increasing the profit bonus beyond what the company has already paid, particularly when we find that the company has claimed no rehabilitation charges in this year.
We, therefore, allow the appeal, set aside the order of the Industrial Tribunal and dismiss the claim of the workmen for any bonus 13 beyond what has already been granted by the company.
In the particular circumstances of this case, we order the parties to bear their own costs.
Appeal allowed.

dataset_name: IN-Abs

summary:
In resisting the workmen 's claim for bonus for the year 1955 56 the appellant contended that in calculating gross profits for the purpose of the Full Bench formula the following items of income should be excluded : (i) Income earned by way of rent, light and power; (ii) estate revenue derived from sale of excess coconuts used in preparing oil grown in the appellant 's groves; (iii) profit from sale of empty barrels; and (iv) sale proceeds of tin cans, scraps, logs, planks, gunnies etc.
as they were extraneous income unrelated to the efforts of the workmen.
The appellant also claimed that a profit of Rs. 3 lacs appearing in the accounts due to a change in the method of valuation was no real profit due to the efforts of labour and should not be taken into account.
In calculating the available surplus the appellant claimed that it was entitled to 4% interest on the depreciation reserve used as working capital.
Held, that the four items were earned by the appellant in the normal course of its business and could no be excluded from the gross profits on the ground that it had not been proved that they were the result of the direct efforts of labour in the bonus year.
Though there must be contribution of the workmen in earning profits before they could be entitled to profit bonus, it was not necessary to establish direct connection between the efforts of the workmen and each item of profit earned.
Profits earned in the normal course of business were generally the result of the joint effort of capital and labour.
Income or profit may be extraneous if it either did not really arise in that year or it arose out of fortuitous circumstances altogether unconnected with the efforts of labour or arose out of sale of fixed or capital assets.
2 Mill Owners Association, Bombay vs The Rashtriya Mill Mazdoor Sangh, Bombay, , Shalimar Rope Works Mazdoor Union Howrah vs Shalimar Rope Works Ltd., Howrah, , referred to.
The profit of Rs. 3 lacs due to change in the method of accounting was extraneous income and had to be excluded.
It was not income in the normal course of business as it was not likely.
to arise again.
It had arisen out of fortuitous circumstances and had nothing whatsoever to do with the efforts of labour.
The appellant was entitled to a 4% return on the deprecia tion reserves used as working capital.
If reserves were not used for this purpose the concern would have to borrow money and pay interest thereon.


judgement:
Civil Appeal No. 99 of 1951.
Appeal from a Judgment and Decree of the High Court of Judicature at Bombay (Stone C.J. and Dixit 3.) dated 14th July, 1947, in First Appeal No. 128 of 1943 affirming a decree dated 14th October, 1942, of the Court of the Dis trict Judge of Kaira at Nadiad in Civil Suit No. 15 of 1928.
514 C.K. Daphtary (N. C. Shah, with him) for the appellant.
Rajani Patel for the respondent.
March 7.
The judgment of the Court was delivered by MUKHERJEA J.
This appeal is on behalf of the defendant and it arises out of a suit, under section 92 of the Civil Procedure Code, commenced by the plaintiffs who were origi nally nine in number in the court of the District Judge of Kaira at Nadiad.
Out of the nine plaintiffs, only one is surviving, and he is now the sole respondent in this appeal, all the rest having died pending this protracted litigation, which began as early as the year 1928.
The case of the plaintiffs, in substance, was that one Kuberdas, who was a religious teacher and a holy man rounded a cult known as Kaivalya or Karunasagar Panth, the principal tenet of which is that the realization of the Infinite is possible only through the medium of a Guru or spiritual preceptor.
Kuberdas received money and lands from his followers and disciples and with this fund he built a temple at Sarsa.
Kuberdas by will appointed his principal disciple Narayandas to succeed him on the Gadi and Narayandas built another and a bigger temple wherein he installed an image of Kuberdas, with the images of two staff bearers on two sides.
The Mahants after Narayandas were Baldevdas, Bhagwandas and Pragdasji, who is the defendant in the suit and each one of them was appointed by a will executed by his predecessor.
The defendant, it is alleged, had been acting in a manner contrary to the usages of the institution and was guilty of incontinence, mismanagement and improper alienation of trust properties.
On these allegations the plaintiffs prayed that: (1) the properties described in the schedule to the plaint as well as other properties under the management of the defendant be declared to be religious and charitable trust properties of the Kaivalya or Karuna sagar Panth; 515 (2) the defendant be removed from the Gadi and posses sion of the properties and a suitable successor appointed in his place; (3) the defendant be called upon to render accounts for the period of his management; and (4) a scheme might be framed for proper management of the institution.
The defendant in his written statement traversed all the material allegations in the plaint and contended infer alia that the suit was not maintainable inasmuch as no public trust of a religious and charitable character existed in respect to the suit properties which were the private properties of the defendant himself.
On these pleadings, a number of issues were framed by the District Judge, of which the two following were tried as preliminary issues, viz., (1) Whether the temple and the properties in suit are public charitable properties ? and (2) if not, whether this court has jurisdiction to try the suit ? By his judgment dated the 18th of July, 1935, the Dis trict Judge decided both these issues against the plaintiffs and dismissed the suit.
Against this decision the plain tiffs took an appeal to the High Court of Bombay.
The learned Judges of the High Court, who heard the appeal, took the view that the ownership of.
the suit properties was so restricted by the obligation to maintain the institu tion for purposes which only could be described as public charitable purposes, that the suit must be regarded as one coming within section 92, Civil Procedure Code.
The result was that the judgment of the trial court was reversed and the case was remanded to that court in order that it might be heard and disposed of on its merits.
The judgment of the High Court is dated 24th of January, 1938.
Being aggrieved by this order, the defendant prayed leave to appeal to the Judicial Committee, but this application was refused.
He thereupon filed a petition before the privy Council praying for special leave.
516 The Privy Council also refused to grant leave on the ground that the matter was still then in an interlocutory stage.
They, however, said specifically that the order of refusal was without prejudice to the presentation of a fresh peti tion after all the issues were determined.
The case then went back to the trial court and on the evidence adduced by the parties, the District Judge came to the conclusion that the allegations of misconduct and breach of trust made by the plaintiffs were not proved and in this view he dismissed the suit, subject to the declaration already given by the High Court that the temple and the properties in possession of the defendant were public, religious and charitable properties.
The plaintiffs filed an appeal against this decision to the High Court of Bombay and the High Court by its judgment dated 14th of July, 1947, affirmed the decision of the District Judge and dismissed the appeal.
The defendant has now come up to this court on the strength of a certificate granted by the High Court; and though formally it is an appeal against the final decree made by the High Court on 14th of July, 1947, in substance it challenges the propriety of the order of remand passed on 24th January, 1938, by which the High Court reversed the decree of dismissal made by the District Judge and remanded the case, being of opinion that the properties in dispute did appertain to a public trust of a religious and charita ble character.
Mr. Daphtary appearing in support of the appeal has contended before us that on the question as to whether or not a public trust existed in respect of the properties in suit, the view taken by the trial judge was right and that the decision of the High Court is based upon a misapprecia tion of the evidence on the record.
We have been taken through the entire evidence by the learned counsel on both sides; but having regard to the view which we propose to take in this case we deem it unnecessary to record any finding as to whether the properties in suit do or do not appertain to a public charitable trust.
In our opinion, after the 517 decision arrived at concurrently, by both the courts below on the merits of the case, it was beyond the scope of a suit framed under section 92, Civil Procedure Code, to give the plaintiffs a bare declaration of this character and make it a part of the decree, although the suit itself was dis missed.
A suit under section 92, Civil Procedure Code, is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character.
Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the court are necessary for the administration thereof, and it must pray for one or other of the reliefs that are specifically men tioned in the section.
It is only when these conditions are fulfilled that the suit has got to be brought in conformity with the provision of section 92, Civil Procedure Code.
As was observed by the Privy Council in Abdur Rahim vs Barkat Ali(1), a suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of section 92, Civil Procedure Code.
In the case before us, the prayers made in the plaint are undoubtedly appropriate to the terms of section 92 and the suit proceeded on the footing that the defendant, who was alleged to be the trustee in respect of a public trust, was guilty of breach of trust.
The defendant denied the existence of the trust and denied further that he was guilty of misconduct or breach of trust.
The denial could not certainly oust the jurisdiction of the court, but when the courts found concurrently, on the evidence adduced by the parties, that the allegations of breach of trust were not made out, and as it was not the case of the plaintiffs, that any direction of the court was necessary for proper adminis tration of the trust, the very foundation of a suit under section 92, Civil Procedure Code, became wanting and the plaintiffs had absolutely no cause of action for the suit they instituted.
In these circumstances, the finding of the High Court about the existence of a public trust was wholly inconsequential and as it was (1) (1928) 55 I.A. 96, 67 518 unconnected with the grounds upon which the case was actual ly disposed of, it could not be made a part of the decree or the final order in the shape of a declaratory relief in favour of the plaintiffs.
It has been argued by the learned counsel for the respondents that even if the plaintiffs failed to prove the other allegations made in the plaint, they did succeed in proving that the properties were public and charitable trust properties a fact which the defendant denied.
In these circumstances, there was nothing wrong for the court to give the plaintiffs a lesser relief than what they actually claimed.
The reply to this is, that in a suit framed under section 92 of the Civil Procedure Code the only reliefs which the plaintiff can Claim and the court can grant are those enumerated specifically in the different clauses of t, he section.
A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses.
When the defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the section if the plaintiff is held entitled to it; but when the case of the plaintiff fails for want of a cause of action, there is no warrant for giving him a declaratory relief under the provision of section 92, Civil Procedure Code.
The finding as to the existence of a public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit.
The result is that in our ' opinion the decision of the High Court should stand, but the decree and the concluding por tion, of the judgment passed by the trial court and affirmed by the High Court on appeal shall direct a ' dismissal of the plaintiff 's suit merely without its being made subject to any declaration as to the character of the properties.
To this extent the appeal is allowed and the final decree modified.
The order for costs made by the courts below will stand.
Each party will bear his own costs in this appeal.

summary:
In a suit under sec.
92 of the Civil Procedure Code alleging that the defendant had been guilty of misconduct and breach of trust as Mahant and praying, inter alia, that the temple and properties in suit be declared as a religious and charitable trust and the defendant be removed from the Gadi and a suitable successor appointed in his place, the District Judge and the High Court held concurrently that the defendant was not guilty of misconduct or breach of trust and dismissed the suit, but made a declaration to the effect that the temple and properties in the possession of defend ant belonged to a public trust of a religious and charitable character: Held, that a suit under sec.
92, Civil Procedure Code, is a suit of a special character which presupposes the existence of a public trust of a religious or charitable character and it can proceed only when there is a breach of such trust or directions from the Court are necessary for the administration thereof and it must pray for one or other of the reliefs that are specifically mentioned in the sec tion; and therefore as the Courts found concurrently that the allegations of breach of trust were not made out and no direction of the Court for proper administration of trust was sought, the very foundation of a suit under sec.
92, Civil Procedure Code, became wanting and the plaintiffs had no cause of action for their suit; and in the circumstances the declaration of the High Court about the existence of a public trust was inconsequential and was no more than an obiter dictum and such declaration must be deleted from the decree dismissing the suit.