JUDGMENT
Walsh, J.
1. In this case we are required to answer three questions submitted to us in a case stated by the Commissioner of Income-tax under Section 66 of the Income-tax Act of 1922. The case is very clearly stated by the Commissioner of Income-tax in the document before us dated the 1st of November, 1924. Although question C comes last, it is desirable to refer to the answer which we are compelled to give to that question. The Income-tax Commissioner agrees that under the peculiar circumstances of this case, which really were adopted by him for the convenience of the assessee the information acquired by his department that the assessee had engaged in other transactions, must be excluded from consideration, and that this matter must be judged upon the hypothesis that the transaction or adventure in question was an isolated transaction in the year of assessment. The facts are that when the books of the assessee were examined, he having been in regular business as a cloth and grain merchant, which regular business he had given up, an item was found relating to the year of assessment of Rs. 60,000 entered as having been received as brokerage in the transaction of the sale of the Mills of Messrs. John and Company of Agra to Messrs. Chare and Company, who floated the Agra United Mills Company Ltd. It is a fact that this sum was the balance of an entire sum of Rs. 75,000, Rs. 15,000 of which had already been paid, but that fact does not affect the question we have to answer. The question is. whether that sum is a receipt, not being a receipt arising from business or the exercise of a profession, vocation or occupation which was of a casual and non-recurring nature. In answer to that question one, first, has to determine the grammatical construction of the exemption. In so doing one has to bear in mind that it is an exemption and therefore of a negative nature, and inasmuch as it does not correspond with any provision contained in any similar legislation in England, and has not apparently been the subject of any decision in India, we have to interpret it as a matter of first impression guided only by the arguments of Counsel on either side. In our view the passage beginning with the word “not” and ending with the word “occupation” is an exception upon an exception, that is to say, the word “which” relates only to receipts which are not receipts arising from business or the exercise of a profession, vocation or occupation. If the argument on behalf of the assesses were adopted, the result would be to strike out that qualifying passage from the section, and to make all receipts, whether arising from business or not, which are of a casual and non-recurring nature, within the exemption. We, therefore, hold that a receipt arising from business or the exercise of a profession, vocation or occupation does not come within the exception.
2. The next question is whether on the facts stated, it was open to the Commissioner to hold that this was a receipt arising from business or the exercise of an occupation. He says, and we agree with him, that the particular transaction is certainly one of the business of a broker, and that it comas within the definition of business. The assessee at one time appears to have taken the same view, for he entered it in his books as a business transaction, and that fact alone constitutes evidence upon which the Commissioner might rightly find, as he has done, that it was a receipt arising from business. But in our view the definition of the word “business” as used in Section 2, Sub-section 4 places the matter beyond doubt. The word “business” is there defined as including any adventure, and it is not possible to exclude from the expression “adventure”, indeed successful adventure, the negotiation of a sale of a large mill which resulted in a commission payable to the value of Rs. 75,000. The answer to question A, therefore, is that the clause exempts only receipts of a casual and non-recurring nature, which are not receipts from business or the exercise of a profession, or occupation by an assessee.
3. It would be superfluous for us to give an answer to question B upon the assumption that our answer to the question A were accepted as final. But in accordance with the order of this Court directing a case to be stated, the question has been submitted to us and has been argued on both sides. In our view this transaction, although an isolated transaction, was not of a casual or non recurring nature. To some extent the discussion of this question overlaps the question whether a particular receipt is a receipt arising from business or the exercise of a vocation. Cases were cited to us on behalf of the assessee, such as Assets Co. Ltd. v. Forbes (1897) 3 Tax Cases, 542, and the unreported case of Commissioners of Inland Revenue v. Sangster K.B.D. 1919, which appears to have been an excess profits duty case, decided in 1919, the report of which is not before us. Following upon these two oases is the decision of the Privy Council in the case of Commissioner of Taxes v. Melbourne Trust Ltd. (1914) A.C. 1001. In our opinion these cases have no application to the question before us, as they deal with the well-known problem, much debated, as to whether in a particular case the realisation of assets is merely an enhancement of capital, or the result of carrying on trade, so as to be in substance and in fact the receipt of income. In taking the view we do, we found ourselves mainly upon the use of the word “nature” in the exemption. The word is not “occurrence”. If the language were “a casual or non-recurring occurrence”, there would be much to be said for the contention of the assessee. But the expression “nature” appears to us to be a word used independently of the accident of the event happening in fact once only, or more often in a fortunate year. It connotes a class of dealing which might occur only once, but which might occur several times. Now the adventure of a business man who is enabled, through his business associations, to negotiate a large transaction and thereby to earn a heavy commission, may undoubtedly be in fact non-recurring in the sense that so successful an adventure, would not be likely to occur again. But, on the other hand, it is a class of transaction which might occur to any such business man once only or half a dozen time9 again, during the course of the year. The Government Advocate put what may be said to be a decisive illustration of the true meaning of the word “nature” when he pointed out that if you sold your own house at a profit, although the question would also arise as to whether the result of that transaction was a profit at all or rather only enhanced capital, it would, in any discussion as to whether it was brought within this exemption, undoubtedly be a transaction of a non-recurring nature. You could not do it twice. But if, on the other hand, you engaged in a solitary transaction of bringing two of your friends together, and negotiated the sale of the house of one of them to the other and thereby earned a commission, you would, in our opinion, be carrying out Hi transaction, which, although casual in fact, would not be of a non-recurring nature, because having done so once with auoces3, you might be asked by some vendor to do it again. Our answer, therefore, to question B is that the particular profit in question was not of a casual and non-recurring nature within the meaning of the section.
4. Our answer to question C is: – No.
5. The assessea must pay the costs of this case, being the amount certified by the Government Advocate.