MALIK, CJ. :- The Income, tax Appellate Tribunal has referred the following two questions for opinion :

(1) Whether in the circumstances of the case the profits from the sale of three gold bars sold on 27th April 1943, arose from an adventure in the nature of she trade within the meaning of S. 2(4), Income-tax Act, and was liable to income-tax ?

(2) Whether the profits arising from the transaction of the sale of gold bars made on 27th April 1943, could be taxed before the entire profits from the sale of the gold bare were daterminable ?"

2. The assessee Messrs. Lalitram Mangilal, Proprietor Budhoo Lal of Kanpur, status, individual carries on business in cloth in Kanpur. In the account year ending June 1943, assessment year 1944-45, he had on 29th October 1942, purchased one gold bar at Rs. 61-8-0 per tola, two gold bars on 30th October 1942, at Rs. 61-11.0 per tola and five gold bars on 6th November 1942. at Rs. 61-9-0 per tola. Three bars, out of those purchased, were sold by the assessee on 27th April 1943 at Rs. 89-8-0 per tola. In July 1943, the eldest daughter of the assessee was married and he utilised two bars in getting ornaments made for the marriage. The remaining three bars the assessee sold on 22nd October 1944 at Rs. 66-14-0 per tola. The total price of the eight bars came to Rs. 1,24,454 9-0, out of which three bars were sold on 22nd April 1943, for Rs. 67,125 and three bars on 20th October 1944, for Rs. 50,090-15-3. I have already said that two bars were utilised by him in his daughters marriage on 3rd July 1943.

3. The Income-tax Officer was of the opinion that these gold bars were purchased with the sole object of being sold at a profit and this was a venture in the nature of trade. He has held that the assessee had sold for Rs. 67,125 one bar that he had purchased on 29th October 1942, and the two bars on 30th October 1942, the total purchase price of the three basis being Rs. 46,218-12-0. He deducted certain expenses that the assesses bad incurred and held that the assessee had made a total profit of Rs. 20,888 and that was assessable.

4. There was an appeal. The case came up before Appellate Tribunal, Allahabad Bench and the Tribunal was of the opinion that the sum of Rs. 20,888 was the income which was liable to be taxed. The assessee thereupon made an application under S. 66(1), Income-tax Act, for a statement of the case. The Tribunal granted the application and formulated the question set out above.

5. Taking up the second question first learned counsel for the appellant has relied on a decision of the Bombay High Court In re K.H. Mody, (1940) I. T. R. 179 (Bom). In that case a plot of land had been purchased by the assesses in a village at a distance of 3½ miles from Ahmedabad. An area of 266 acres had been ear-marked for development and had been divided into one thousand plots. Only some of the plots were sold during the year previous to the year of assessment and the question arose, firstly, whether it was a venture in the nature of trade and, secondly, whether the income derived from the sale of some of the plots could be deemed to be income, profit or gain made during the account year. Answering the second question, Beaumont, C.J. observed as follows :

"It is to be noted that the whole transaction is not yet complete, which distinguishes this case from the various other cases which have been cited in which there has been a purchase of property or goods and a subsequent sale and the Courts held that the transaction amounted to carrying on business. But we were not referred to any case in which only a part of the property had been sold whilst the rest remained in the hands of the assessee and might result in a profit or might result in a loss. Moreover, we have no materials on which we can say that the basis on which the Assistant Commissioner arrived at this figure is a correct basis."

Kania, J. observed as follows :

"The first part of the question is whether there is profit in the business of purc