TMI Blog1980 (7) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... f land in Kodambakkam, Madras. She applied to the Corporation of Madras for approval of her plan to construct a residential building in her plot. With the plan sanctioned, she started construction work. Almost the first thing she did at the site was to find a spot and dig a well, for, there was no municipal water supply in that locality and she needed water, initially, for building operations, and, thereafter, to serve as a source of water supply for domestic consumption and gardening. By sheer good fortune, she happened to strike a perennial spring at the spot where she dug for the well. The water was good. It was also plentiful. This was just about the time when the rest of Madras found itself in the throes of an acute water famine. Scarcity of water was not only a practical problem, but was apparently the main topic of conversation among city dwellers. In May, 1969, when the drought was at its worst, the assessee's husband had been to a Rotary meeting at Hotel Connemara. There he chanced to meet the secretary of Spencer and Co. Ltd., Madras. Spencers had an aerated water factory in the city. They were experiencing production problems on account of depletion of their usual source ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar situation was not altogether beyond the realms of possibility, the receipt as such in the hands of the assessee must be regarded as casual and non-recurring. The Tribunal pointed out that the assessee was only a housewife and the receipts from sale of well-water did not arise in the course of any business which might be said to have been carried on by her. In this reference, Mr. Jayaraman, learned counsel for the revenue, challenged the Tribunal's conclusion as based on a misconception. He said that much was made by the Tribunal of the circumstances that the assessee was a mere housewife and had had no previous business dealings to her credit. We do not, however, think that the Tribunal was wrong in drawing attention to the life style of the assessee. We regard it as a fact of the utmost importance to this case that the assessee was a married woman who was intent upon building a family residence and running her family in it and who had no thought of running business of any sort of her own. Mr. Jayaraman then urged that the Tribunal was wrong in thinking that the receipts in question were casual receipts. He said that receipts cannot properly be regarded as casual when they a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. The real question in this case, therefore, is that given the fact that the assessee in this case was a house-wife with no known commercial proclivities of her own, can she yet be regarded as having indulged in an adventure in the nature of trade when she sold her well water to two concerns in Mount Road at a time of acute water scarcity, after they made overtures in that regard, What a trade is, and what a business is, it is difficult to say in a nutshell, or within the framework of a formula. Even more difficult is the answer to the question what an adventure in the nature of trade is. But faced with questions of this kind to decide, what the courts and tribunals can do is to look fairly at the facts of the given case before them, examine all their different aspects and determine whether the given transaction is an adventure or concern in the nature of trade. The conclusion to be reached by this manner of enquiry is thus one of mixed fact and law. It is quite permissible for the courts, in the process, to draw upon their judicial expertise to seek to arrive at a proper conclusion in law, on the facts disclosed by the case before them. In the very nature of an inquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the well. And it was the tremendous potential of the spring that made Spencers ask for the water. There is no evidence that the assessee had thought of her well as a commercial asset. As a housewife she might even have had qualms about marketing such thing as well-water for a price, least of all at a time of general drought. This must, indeed, have been the reason why in the initial stages Spencers were in a position to help themselves free with the water from the assessee's well. Only later did it occur to them to pay for the precious liquid, considering that they were turning it to good account in their soda factory. It is true that the assessee did not refuse payment of Rs. 50 a lorry load when it was offered to her every time, but the acceptance of this payment does not, in our judgment, make it a business profit, when all the attendant facts and circumstances, considered as whole, do not unmistakably point to the existence of any trade or trading element whatever. It is not uncommon for womenfolk even in non-trading families to sell milk, butter-milk and other products in excess of their family requirements to neighbours and others. In such cases, a court or tribunal might wel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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