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PETITIONER: DALMIA CEMENT LIMITED

       Vs.

RESPONDENT: COMMISSIONER OF INCOME TAX, NEW DELHI

DATE OF JUDGMENT10/09/1976

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. RAY, A.N. (CJ) BEG, M. HAMEEDULLAH

CITATION:  1976 AIR 2150            1977 SCR  (1) 554  1976 SCC  (4) 614

ACT:             Income  Tax  Act, 1922, s. 2(4)--When can a  single  and         isolated  sale be a business transaction within the  meaning         of--Onus  probandi  on  the   Taxation   Department--Initial         purchase with intention of advantageous sale--Earning profit         on delivery of goods not necessary.

HEADNOTE:             In  1946,  the appellant  ordered  cement  manufacturing         machinery from a in Denmark, for its factory in Dandot,  but         long  before the machinery was due, the Country  was  parti-         tioned  and Dandot went to Pakistan.  Instead of  cancelling         his  order,  the appellant imported the machinery.   It  was         found that the appellant did so with the intention of  sell-         ing it at a profit, to the Orissa State.  At the time of the         sale, the appellant charged only the invoice price initially         paid  by it, but later, obtained a profit.  The  Income  Tax         Officer treated the profit  as income earned pursuant to  an         adventure in the nature of trade, and taxed it as such.  The         appellant’s appeals were rejected by the Appellate  Taxation         Authorities. The matter was then referred to the High  Court         u/s. 66 (1 ) of the income Tax Act, but was dismissed.            The appellant contended that making a profit was not  its         intention  at the time of sale, and that being a single  and         isolated  transaction  of purchase and sale, it was  not  an         adventure  in the nature of trade within the meaning  of  s.         2(4)  of the Act, and that the onus of proving  anything  to         the contrary, lay upon the Department.         Dismissing the appeal, the Court--             HELD:  (i)  It is well settled that even  a  single  and         isolated  transaction can be held to be capable  of  failing         within the definition of "business" if it bears clear  indi-         cia  of trade.  The fact that the transaction is not in  the         way  of business of the assessee does not in any  way  alter         the character of the transaction.                                          [556H,--557A]             Narain Swadeshi Weaving Mills v. Commissioner of  Excess         Profits Tax (251‘ I.T.R- 765), G. Venkataswami Naidu .&  Co.         v.  The Commissioner of Income Tax [1959] Supp.  (1)  S.C.R.         646, Sarol Kumar Mazumdar v. The Commissioner of Income Tax,         West Bengal, Calcutta [1959] Supp. (2) S.C.R. 846 followed.

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           (2) It is a correct proposition of law that as it was  a         single  and isolated transaction of purchase and  sale,  the         onus  of proving that it was a transaction in the nature  of         trade lay on the department- [560 D-E]             (3) The appellant had the dominant intention of  selling         the  Dandot machinery to its own advantage, and  acted  with         the  set purpose of taking an advantage of its  position  as         the owner of the imported machinery-  Even if the  appellant         had not earned any profit whatsoever at the time of the sale         or  very soon thereafter, the transaction, in the facts  and         circumstances  of this case, would nonetheless have been  an         adventure in the "nature of trade", and a business  transac-         tion  within the meaning of Section 2(4) of the Act.  [560H,         561B, 562A-B]              Narain Swadeshi Weaving Mills v. Commissioner of Excess         Profits   Tax  (Supra). and G. Venkataswami Naidu &  Co.  v.         The Commissioner of Income   Tax (Supra) followed.             Kishan prasad & Co. Ltd. v. Commissioner of Income  Tax,         Punjab (27, I.T.R. 49). Saroj Kumar Mazumdar v. The  Commis-         sioner of Income Tax. West Bengal,  Calcutta (Supra).  janki         Ram  Bahadur Ram v. Commissioner of Income  Tax.,   Calcutta         [1965] 3 S C.R. 604. and Ajax products Ltd. v.  Commissioner         of IncomeTax, Madras (43 I.T.R. 297) distinguished.         555

JUDGMENT:         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1437 of 1971.             (Appeal  by  Special Leave from the Judgment  and  order         dated 28-4-1970 of the Delhi High Court in Income Tax Refer-         ence No. 50/ 65)              V.S.  Desai, Mrs, Leila Seth and Parveen Kumar for  the         Appellantt.             S.T. Desai & M.N. Shroff, for the Respondent.             The Judgment of the Court was delivered by             SHINGHAL,  J.--This appeal by special leave is  directed         against the judgment of the Delhi High Court dated April 28,         1970 in a reference made by the Income-tax Appellate  Tribu-         nal (Delhi Bench A)  under section (36(1) of the  Income-tax         Act, 1922, hereinafter referred to as the Act. in respect of         the following question,--                  "Whether on the facts and circumstances of the case                  the  sum  of Rs. 7 lakhs received from  M/s  Orissa                  Cement  Ltd.  was pursuant to an adventure  in  the                  nature  of  trade  and as such  tanable  under  the                  Indian Income-tax Act, 1922 ?"         The High Court has answered the question in the affirmative.                      We shall refer to the facts giving rise to  the                  controversy in  some detail when we state them in a                  chronological  order.   It may be mentioned,  mean-                  while,  that  the Dalmia Cement  Ltd.,  hereinafter                  called  the appellant, owned certain cement  facto-                  ries and it placed an  order for the supply of four                  complete  units of cement  manufacturing  machinery                  with  M/s  F.L.  Smidth  and  Co.,  Copenhagen,  on                  February   7, 1946. to increase the  production  in                  the following factories,--  ,                   1. Shantinagar,                  2. Dandot,                  3. Dalmianagar,                  4. Dalmiapuram.         Since  the  factory in Dandot fell within the  territory  of         Pakistan  on constitution with effect from August 15,  1947,         the appellant transferred the machinery which was meant  for

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       the  Dandot  factory  (hereinafter referred  as  the  Dandot         machinery),  to  a new company known as Orissa  Cement  Ltd.         some  time  in 1950-51, and charged only the  invoice  price         which it had paid to M/s F.L. Smidth and Co.   The appellant         thereafter asked for a higher price and after some  negotia-         tions the Orissa Cement Ltd. agreed on December 4, 1951,  to         pay  a further sum of Rs. 7 lakhs, in lieu of  which  70,000         fully  paid up ordinary shares of Rs. 10/- each. were  given         to  the  appellant in that company. The  Income-tax  Officer         treated that amount as income earned by the appellant pursu-         ant  to an adventure in the nature of trade in  1952-53  as-         sessment  year,  and  taxed it as such.    On   appeal,  the         Assistant         4--1234SCI/76         556         Appellate Commissioner also held in his order dated  Septem-         ber  16, 1958 that the transfer of the Dandot machinery  was         an adventure in the nature of trade and the payment of Rs. 7         lakhs was a revenue receipt which was rightly  taxed by  the         Income-tax  Officer.   The matter went up in appeal  to  the         Income-tax  Appellate Tribunal (Delhi Bench) which  remanded         the  case to the Income-tax Officer by its order dated  Sep-         tember  13, 1960, for report on certain specific points.  On         receipt  of  the Income-tax Officer’s report,  the  Tribunal         held  that  the transaction in question  was  "certainly  an         adventure in the nature of trade" and dismissed the  appeal.         It however drew up a statement of the case, and that is  how         the aforesaid question of law was referred to the High Court         under  section 66(1) of the Act.   The High Court held  that         by the time the appellant placed the despatch order with M/s         Smidth & Co., "its intention was to purchase it with an idea         to  resell" and that the fact that it was a single and  iso-         lated  transaction did not materially affect the  case.   In         reaching that conclusion the High Court took the  subsequent         developments into consideration, and rejected the contention         that the machinery was purchased by way of an  "investment".         The  present appeal has been filed against that judgment  of         the High Court dated April 28, 1970.             Under section 10 of the Act, income-tax is payable by ,m         assessee  under  the head "Profits and  gains  of  business,         profession  or  vocation",  inter alia, in  respect  of  the         profits  and gains of any "business" carried on by him,  and         the  controversy in this case is whether the receipt of  the         additional  sum of Rs. 7 lakhs, over and above the  cost  of         the  Bandot  machinery, could be said to arise  out  of  any         "business"  of the appellant.  The term "business" has  been         defined as follows in clause (4) of section 2 of the Act,-                   "(4)  "business" includes any trade, commerce,  or                  manufacureor any adventure or concern in the nature                  of trade, commerce or manufacture."           The  question in this case is whether the transaction  was         an  "adveuture" in the "nature of trade" within the  meaning         of  the definition ?  Some decisions have been  rendered  by         this Court on the point, and our attention has been  invited         to the decisions in Narain Swadeshi Weaving Mills v. Commis-         sioner of Excess Profits Tax, (1) Kishan Prasad and Co. Ltd.         v.  Commissioner of Income-tax Punjab,(")  G.  Venkattaswami         Naidu  & Co. v. The  Commissioner of   Income-tax,(3)  Soroj         Kumar Mazurndar  v.  The  Commissioner  of  Income-tax  West         Bengal  Calcutta,  (4)   and  Janki  Ram  Bahadur   Ram   v.         Commissioner of Income-tax, Calcutta(5).  Even so, on gener-         al  principle  can,  for obvious reasons, be  laid  down  to         cover.  all cases of this kind because of their  varied  na-         ture,  so that each case has to be decided on the  basis  of         its own facts and circumstances.  It is however well settled

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       that  even a single and isolated transaction can be held  to         be  capable  of falling within the definition  if  it  bears         clear indicia of trade (vide Natgin           (1) 26 I.T.R. 765.                    (2) 27 I.T.R. 49.           (3)  [1959] Supp. (1) S.C.R.. 646.    (4)  (1959)  Supp...         (2) S.C.R. 846.           (5) [1965] 3 S.C.R. 604.         557         Swadeshi Weaving Mills v. Commissioner of Excess Profits, G.         Venkataswami Naidu & Co. v. The Commissioner of  Income-tax,         and Sarol Kumar Mazumdar v. The Commissioner of  Income-tax,         West Bengal, Calcutta (supra)).  It is equally well  settled         that  the  fact that the transaction is not in  the  way  or         business  of  the  assessee does not in any  way  alter  the         character of the transaction (vide G. Venkataswatni Naidu  &         Co.  v.  The  Commissioner of Income-tax,  and  Saroj  Kumar         Mazumdar  v.  The Commissioner of InCome-tax,  West  Bengal,         Calcutta  (supra).   It would not therefore help the  appel-         lant’s  case merely to urge either of these points  for  the         answer to the question will depend on a consideration of all         the facts and circumstances.             The question under consideration is essentially a  mixed         question  of fact and law.  It will therefore be  desirable,         in  the first instance, to re-state the relevant facts in  a         chronological order;             As  has  been stated, the appellant  owned  some  cement         factories  in  various parts of India including the  one  in         Dandot.  It placed an order with M/s. Smidth & Co., Copenha-         gen, for the supply of four complete units of machinery  for         the manufacture of cement, to increase the production of its         factory  at Dandot and three other factories.  A firm  order         for  all the four units was placed on February 7, 1946.   It         was  confirmed  by M/s. F.L. Smidth & Company on  August  6,         1947  and the appellant was informed that the supply of  the         Dandot machinery would be made in various months from Febru-         ary 1948 to October 1948.  India was partitioned, and  Paki-         stan came into existence on August 15, 1947. Dandot fell  in         the  territory  of  Pakistan. The appellant,  which  was  an         Indian Company, did not however cancel the order in  respect         of  the Dandot machinery.  On the other hand, a Director  of         the  appellant informed the Orissa Government in his  letter         dated November 25, 1947 that it had "got a cement plant  for         which it had placed order a couple of years back", of  which         early delivery was expected, and that it would be willing to         put  it  in  Orissa on "suitable  terms."   The  appellant’s         General Manager held discussions with the Orissa  Government         on January 8, 1948 for the setting up of a cement factory in         Orissa.   It was recorded in the note of the proceedings  of         that  meeting that the appellant had ordered  machinery  for         replacing its cement plant, the said machinery was  expected         to  be shipped at an early date and parts of it would  start         arriving  in  March 1949.  It was further  stated  that  the         complete supply of the plant was estimated to take about six         months, and if the negotiations were fruitful the first  lot         of  cement would be produced by the beginning of 1950.   The         appellant’s  representative insisted that a  final  decision         might be taken at an early date so that the machinery  which         had  to be chipped from abroad could be diverted,  depending         upon  the  decision,  to the Calcutta or  Bombay  port.  The         appellant thereafter wrote a letter to M/s. F.L. Smidth  and         Co.  (Bombay) Ltd. on September 9, 1948 directing  that  the         plant meant for the Dandot works might be diverted to  Oris-         sa. It was specially stated in the letter as follows,--                 "There are certain equipments in the  specifications         of  the       plants for extension No. 3 and 4,  which  were

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       peculiar  to  the  layout and design for  the  extension  at         Dandot and Shanti         558         nagar  and  they  will not now fit in exactly  in  the  same         manner in our proposed new factories.  As such, it is essen-         tial that the whole specifications are carefully scrutinised         and  manufacture of the items which are peculiar to the  lay         out  of Dandot and Shantinagar Works only should be kept  in         abeyance in order to suit the local conditions."         The plants were expected to arrive from March 1949  onwards,         but  this  would not have been possible  without  an  import         licence.   The appellant obtained the licence from the  Gov-         ernment  of India and intimated to M/s. F.L. Smidth and  Co.         in its letter dated August 2, 1948 that it had been  permit-         ted  to import in the Indian Dominion the two  plants  meant         for Dandot and Shantinagar.  The suppliers were  accordingly         requested  to  intimate the dates upto which  extension  was         required  for the import of the machinery.  A formal  agree-         ment  was made between the appellant and the Orissa  Govern-         ment  on December 23, 1948. The Dandot machinery arrived  in         due  course.   It was delivered by the appellant  to  Orissa         Cement  Ltd.  and its actual cost was debited to  it.  Quite         some  time thereafter, on April 7, 1970, a Director  of  the         appellant  wrote a letter to the Industries Minister of  the         Orissa Government that the machinery supplied to the  orissa         Cement  Ltd. should be revalued and the appellant allowed  a         higher  price  than the invoice price due to a rise  in  the         cost of the cement .plant at the time of supply as  compared         with the price at the time when it was originally ordered by         the appellant.  The name of one F.B. Mogensen was  suggested         for the revaluation of the machinery.  This was agreed to by         the  State  Government on June 4, 1950.   Mogensen  reported         that  the Orissa Cement Ltd, had benefited to the extent  of         almost  Rs. 21 lakhs  in the bargain. The Orissa  Government         passed  a resolution dated December 4, 1951 allowing a  fur-         ther  sum  of Rs. 7 lakhs to the appellant and, in  lieu  of         cash payment, allotted 70,000 fully paid up ordinary  shares         of Rs. 10/- each of the Orissa Cement Ltd. to the appellant.         The above facts clearly establish that,--                      (i) Even though the appellant initially  placed                  an  order on February 7, 1948 for the  purchase  of                  the  Dandot Machinery for improving the  production                  in  the Dandot factory, and the supply was  not  to                  commence until February. 1948, it did not make  any                  effort  to cancel that order even after Dandot  was                  included  in the territory of Pakistan with  effect                  from August 15, 1947.                      (ii)  On  the other hand, in  pursuance  of  an                  enquiry  by  the Government of Orissa  whether  the                  appellant  would  be  interested in  putting  up  a                  cement  plant in the State, one of the  appellant’s                  Directors informed the State Government on November                  25,  1947 that it had got a cement plant for  which                  it  had placed an Order a couple of years  ago  and                  that  it  could  be put up in  Orissa  on  suitable                  terms.  The appellant’s General Manager in fact met                  the  State Government authorities in January,  1948                  where it was reiterated                  559                  that  the  machinery ordered by the  appellant  was                  expected to start arriving in March 1949 and  could                  be diverted to Calcutta and that if the appellant’s                  negotiations  with the State Government  were  suc-                  cessful, the first lot of cement could be  supplied                  by the beginning of 1950.

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                   (iii)  The negotiations with the Orissa  Govern-                  ment  proved successful and the appellant  wrote  a                  letter  to  M/s. F.L. Smidth and Co. on  August  2,                  1948 informing it that it had obtained the  permis-                  sion  of  the  Government of India  to  import  the                  Dandot  machinery  in India.   The  appellant  also                  informed the suppliers on September 9, 1948 that it                  should  divert the Dandot machinery to  Orissa  and                  supply the same according to the revised specifica-                  tions to suit the local conditions.                     (iv)  A  formal agreement was  executed  by  the                  appellant and the Orissa Government on December 23,                  1948  for  the setting up of a  cement  factory  in                  Orissa.                      (v)  The Dandot machinery arrived and was  sup-                  plied  by  the  appellant  to  the  Orissa  factory                  against cost price, which was debited to the Orissa                  Cement Company.         It would thus appear that, long before the Dandot  machinery         was  due,  the appellant knew that it could not be  used  in         Dandot.   It has been found that after the partition of  the         country the appellant could have cancelled the order for the         import of the machinery but it did not do so and decided  to         import it with a view to supplying it to Orissa on  suitable         terms.  It  therefore  resold it to the  Orissa  factory  in         accordance with the terms and conditions of its negotiations         with  the  State Government.  The intention  of  resale  was         therefore  there almost from the beginning, and  was  really         the dominant intention in importing the machinery after  the         partition  of the country.  It is also quite clear that  the         appellant was not inclined to make it a gratuitous sale, but         agreed  to  it only when it was able to  secure  a  suitable         agreement with the State Government for the setting up of  a         factory in Orissa.  It was in fact. the appellant’s own case         that the price of the Dandot machinery had gone up  substan-         tially.   Even so, the appellant did not care to utilise  it         for any of its own plants, but sold it to Orissa Cement Ltd.         The  appellant  therefore  did not only  have  the  dominant         intention of selling the Dandot machinery to its own  advan-         tage  but,  in doing so, it acted with the  set  purpose  of         taking  an  advantage of its position as the  owner  of  the         imported machinery of which the price had on the appellant’s         own  showing, gone up much higher.  It was therefore a  real         transaction  by way of an adventure in the nature  of  trade         and was as such a business transaction within the meaning of         section  2(4)of the Act.   It does not matter if the  appel-         lant  did  not earn a profit immediately on  delivering  the         machinery,  and  sold  it without any profit  in  the  first         instance, for there can be no denying the fact that even  if         the  appellant had not earned any profit whatsoever  at  the         time of the sale or even thereafter, the transaction in  the         facts and circumstances of the case, would nonetheIess  have         been adventure in the         560         "nature  of trade" and no other.)  We are fortified in  this         view  by the decisions in Narain Swadeshi Weaving  Mills  v.         Commissioner Excess Profits Tax (supra) and G.  Venkataswami         Naidu and Co. v. The Commissioner of Income-tax (supra).             It  is true that the question of asking for  payment  in         excess  of the cost price was raised by the  appellant  some         time later, but its subsequent course of conduct in bringing         about  a substantial profit is a clear pointer to  the  real         intention behind the sale.  It was for that reason that  the         appellant’s  Director addressed a letter to the Minister  of         Inustries of the Orissa Government on April 7, 1950  stating

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       that the Dandot machinery should be revalued and the  appel-         lant allowed a higher price due to the rise in its price  at         the  time of the supply.  The entire correspondence in  that         respect has not been placed on record by the appellant,  but         it  appears that the appellant was able to secure a  further         sum  of  Rs. 7 lakhs, under an agreement dated  December  4,         1951  in  lieu of which it was able to secure  70,000  fully         paid  up  shares of Rs. 10/-.  The  appellant  succeeded  in         doing  so  merely because it was able  to  substantiate  its         claim  for a higher  price, or  profit, on  the- sole ground         that  it was entitled to it because of the increase  in  the         price  at the time of the sale.  There is therefore  nothing         wrong  in  the view which has prevailed with the High  Court         that it was an adventure in the nature of trade.             It has been argued by Mr. V.S. Desai, for the  appellant         that as it was a single and isolated transaction of purchase         and sale,, the onus of proving that it was a transaction  in         the  nature  of  trade lay on  the department.   This  is  a         correct  proposition of law and, .as would appear from  what         has  been stated above, we have examined the controversy  on         the assumption that the burden of proving that the  transac-         tion  was  an adventure in the nature of trade  lay  on  the         department.  The ancillary argument of Mr. V.S. Desai that a         question like the present has to be examined with  reference         to  the  indicia or characteristics of the  trade,  is  also         quite correct, but counsel has not been able to contend,  in         the  face of the facts and circumstances  mentioned   above,         which indicia or characteristics could be said to be lacking         to take it out of the category of an adventure in the nature         of trade.              All  that Mr. V.S. Desai has pointed out is that  there         was no intention to make a profit when the Dandot  machinery         was  sold  to  the Orissa Cement Ltd., and it has been urged         that  would be sufficient to take it out of the category  of         an  adventure  in  the nature of trade.  Reference  in  this         connection has been made to the decisions in Kishan Prasad &         Co.  Ltd. v. Commissioner of Income-tax, Punjab (supra),  G.         Venkataswami Naidu and Co. v. The Commissioner of Income-tax         (supra),  Saroj Kumar Mazurndar v. The Commissioner  of  In-         come-tax,  West Bengal, Calcutta (supra), and Ajax  Products         Ltd.  v.   Commissioner of Income-tax, Madras(1).   We  have         given our reasons for the contrary view that the transaction         would  be  an adventure in the nature of trade even  if  the         question  of profit was left out of consideration, and  that         the appellant in fact acted with the set purpose of  resell-         ing  the         (1) 43 I.T.R. 297         561         Dandot machinery to its advantage and not by way of a favour         or  a gratuitous act.  We have also shown how the  appellant         ultimately claimed and succeeded in securing a higher  price         merely on the ground that there was an appreciable  increase         in the price after the purchase of the Dandot machinery.             Lastly,  it  has been argued by Mr. V.S. Desai  that  in         purchasing  the machinery the appellant made a  capital  in-         vestment so that it was merely a capital asset.  This  argu-         ment  is also futile for, as has been shown,  the  appellant         made  the purchase with the dominant intention of  reselling         the machinery to advantage and made the resale only when  it         was able to enter into an agreement with the Orissa  Govern-         ment  lot the setting of a cement factory in that  state  on         terms  and conditions which were suitable from its point  of         view.  It may also be stated that even in its own profit and         loss account and balance  sheet,  the  appellant treated the         sale price as a revenue receipt and not as a capital invest-

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       ment.   It was therefore an after thought to Claim that  the         initial  purchase  was  by way of an investment  and  was  a         capital asset.             The  facts of Kishan Prasad and Co. Ltd. v. The  Commis-         sioner  of Income-tax, Punjab (supra), Saroj Kumar  Mazumdar         v.  The  Commissioner of Income-tax, West  Bengal,  Calcutta         (supra)  and  Janki   Ram Bahadur Ram  v.  Commissioner   of         Income-tax,  Calcutta  (supra) referred to by Mr. V.S. Desai         were  different.  In the case of Kishan Prasad and Co.  Ltd.         (supra)  there was agreement to give the managing agency  to         the  assessee  on the erection of the mill  because  it  had         subscribed  to shares worth Rs. 2 lakhs.  The mill  was  not         erected and the assessees sold the shares.  There was there-         fore   justification  for holding that the purchase  of  the         shares was an investment to acquire the managing agency  and         was not an adventure in the nature of trade. In Saroj  Kumar         Mazumdar’s  case (supra) there was a single  transaction  of         sale of rights for the purchase of land measuring 3/4  acres         by  the  assessee who was an Engineer  by  profession.   His         construction  activities declined and that was why  he  sold         his   rights  in the land  for Rs. 74,000 odd in  excess  of         the  amount paid by him.  The Incometax  department  however         failed  to prove that the assessees  dominant intention  was         to  embark  on a venture in the nature of trade  as  distin-         guished from capital investment.  That was also therefore  a         different  case.   In  the case of  Janki  Ram  Bahadur  Ram         (supra)  the assessee was a dealer in iron scrap  and  hard-         ware.   He agreed to purchase all rights of a company  in  a         jute pressing factory, but sold it at a profit. It was  held         that as the property purchased by the assessee was not  such         that an inference that a venture in the nature of trade must         have  been  intended  could be raised, the  profit  was  not         liable to tax.  It was held that a person purchasing a  jute         press  might intend to start his  own business or  he  might         let  it out on favourable terms.  The property was  in  fact         let out by the earlier owner before the date of sate.   That         was  also therefore quite a different case and cannot  avail         the  appellant. In the remaining case of Ajax Products  Ltd.         (supra)  it was held that on the facts the assessee  company         having acquired the sick mill to open new line of  business,         the purchase was, really in the nature of an investment  and         the purchase and sale did not amount to an adventure in  the         nature  of trade. That was therefore also quite a  different         case.         562             It would thus appear that in spite of the fact that  the         appellant  withheld  some of the correspondence  bearing  on         the   controversy,  the Department has succeeded in  proving         that the transaction of  sale  in question was an  adventure         in  the  nature of trade and fail within the  definition  of         "business" in clause (4) of section 2 of the Act.   The High         Court has rightly answered the question in the  affirmative,         and as we find no merit in this appeal, it is dismissed with         costs.         M.R.                                      Appeal dismissed.         563