TMI Blog1998 (8) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... ee's counsel but before considering the submissions advanced by the parties, we would like to extra brief facts as emerge from the order of the CIT(Appeals) and are relevant for the decision of the issue involved as under. 5. The assessee was a lady and she was the widow of late Sh. Prem Manohar, who expired on15-5-1978. The family was purely agriculturist and they do not have any other business. They were holding agricultural lands in village Aurangshahpur Diggi inMeerut. On this land the appellant was carrying on agricultural operation until June, 1982. After the death of her husband the assessee was though carrying on agricultural operation but was not happy with the labour etc. and therefore, ultimately in 1982 she decided to sell her entire agricultural land measuring 10 Bigha 18 Biswas and 4 Biswansi to M/s. Rama Properties, Meerut for a sum of Rs. 15,00,000 and for this purpose she entered into an Agreement with the said M/s. Rama Properties (hereinafter referred to as an Agent). A copy of the agreement dated19-4-1982is filed at page 48 of the Paper Book. The agent paid an advance of Rs. 80,000 and rest of the money, i.e., Rs. 14,20,000 (Rs. 15,00,000 - Rs. 80,000) was to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the nature of trade. To support his plea he placed reliance on the following decisions :--- (a) Deep Chandra Co. v. CIT [1977] 107 ITR 716 (All.). (b) CIT v. Premji Gopalbhai [1978] 113 ITR 785 (Guj.). (c) Shyamala Pictures (P.) Ltd. v. CIT [1983] 142 ITR 115 (Mad.). The assessee's counsel put forward another alternate argument in the terms that presuming but not admitting that had the assessee, if at all transferred her capital asset into trading one, it would have been done either before 19th April, 1982 the date of agreement with the agent and if not at that time, then as on 1st April, 1986, i.e., the first day of the previous year relevant to assessment year 1987-88, because if it is not so, then there is no question of considering the transaction as an adventure in the nature of trade and if it is so, then, according to the assessee's counsel, since the sale of plots have been effected during the period 19th April, 1982 to 31st March, 1986, i.e., the period relevant to assessment years 1983-84 to 1986-87, have been accepted by the revenue as sale of capital asset and profit taxed as capital gain, it is accepted fact that the revenue was not considering the transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also true that reference to "an adventure in the nature of trade" suggests that the transaction in question cannot be properly be regarded as a trade or business, it is allied to transaction that by itself or constitutes trade or business but may not be trade or business itself. It may be possible to characterise it by some, if not all, to the essential features that make a trade or business Bhagirath Prasad Bilgaiya v. CIT [1983] 139 ITR 916 (MP). Further to determine the nature of such a transaction, i.e., the transaction which in the strict sense of the terms, is not a trade or business, the dominant intention of the assessee has also to be seen, i.e., if the intention is to embark upon an adventure in the nature of trade is distinguished from the capital investment, it would make no difference even if the transaction is a single or multiple or isolated. The next question which crops up is as to whether it is revenue's onus to prove that a transaction was within the ambit of an adventure in the nature of trade or it is assessee's onus to prove that it does not fall within such ambit and the answer to this question is found in the decision of the Hon'ble Apex Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim. 12. Here we would like to state that though res judicata does not apply to the income-tax proceedings since every assessment is an independent year, but in the present case, since the transactions effected during the period relevant to assessment years 1983-84 to 1986-87 were a part and parcel of the scheme as a whole, i.e., the left-over transactions were also for the same part of the asset, so, in case the revenue wanted to change the stand, it was incumbent upon it to prove change in the circumstances of the case, which, in our opinion, would have been either pointing to any change in the provisions of law or the facts and circumstances of the case, the revenue has not established or pleaded any one of such changes. Consequently we see no reason to interfere with the finding of the CIT(Appeals). 13. Coming to the assessee's alternate contention, we are of the opinion that since the revenue has assessed the sale price of plots (out of total agricultural land) during the assessment years 1983-84 to 1986-87 as capital gain, the conversion of capital asset into a trading asset, cannot be presumed to be till the end of previous year relevant to the assessment year i.e., t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint involved in these appeals and fully supports the assessee's case. 16. In view of above discussion, we hold that the assessee's activity of sale of her ancestral agricultural land by way of small pieces was not an adventure which may amount to adventure in the nature of trade and, therefore, do not find any reason to interfere with the findings of the CIT(Appeals), which are confirmed. 17. Ground No. 2 reads as under : "(ii) That the ld. CIT(A) erred in law and on facts in allowing interest of Rs. 28,920 which has a mere provisions and nothing was brought on record that interest had been demanded." 18. The issue involved in this ground has been decide by the CIT(Appeals) as per paragraph 3.1 of his order, which is reproduced as under :--- "3.1 In this connection, I have heard the learned counsel and gone through the facts of the case. The appellant's claim is that out of Rs. 2,41,000 i.e., payable to Sh. Chater Sen Gupta, the appellant had invested Rs. 2,40,000 by way of FDR (Rs. 1,40,000) and N.S.Cs. (Rs. 1,00,000) and she is being assessee to income-tax on the interest income. The case being so, the appellant was entitled to claim the deduction of intt. i.e., to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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