JUDGMENTBY: ROSE CJ, BUTTROSE J, AMBROSE J

ROSE CJ I have had the advantage of reading the judgments of my brothers and agree with their conclusion that the appeal should be allowed, with the consequences stated by them.

I would add that, leaving aside the question as to whether the decision in the Kenya case of H Co Ltd v The Commissioner of Income Tax 1 East African Tax Cases 65, can be considered to have been rightly decided on the facts, I agree with the opinion of both my brothers that Windham J.s interpretation of the word "business" would seem to be too wide.

On the hypothetical point as to whether the transaction in question could properly be held to be "an adventure in the nature of trade", within the meaning of the (English) Income Tax Act 1952, it would seem to be very much a borderline case. My brothers are not in accord as to which side of the line the present matter falls. Were it necessary to decide the point, I myself incline to the opinion that the transaction in question would not be held in the English Courts to be an adventure in the nature of trade.

The other matters raised in the appeal have been exhaustively and lucidly dealt with by my brothers, and there is nothing that I can usefully add.

BUTTROSE J This is an appeal under section 81 of the Income Tax Ordinance (Chapter 166), hereinafter referred to as "the Ordinance", from a judgment of Chua J., which decided that an isolated transaction of purchase and resale of a rubber estate by the appellant taxpayer constituted a business of the taxpayer and that he was liable to pay income tax in respect of the profit he made on the resale on the basis that it was "profits from a business" within the meaning of section 10(1)(a) of the Ordinance.

The taxpayer purchased the rubber estate which was situated in Ipoh without inspecting it for $ 240,000 which he borrowed from his brother for that purpose and within three weeks resold it for $ 485,000 making a profit of$ 245,000. Out of this profit the taxpayer repaid the loan he had received from his brother and kept the balance which he invested. It was not in dispute that this was an isolated transaction or dealing in land by the taxpayer, that he was not the nominee of any person or company and that he was in no way concerned in and had nothing to do with property or dealings in land whatsoever.

Pursuant to the provisions of section 73 of the Ordinance the Comptroller made an additional assessment upon the taxpayer in the sum of$ 69,121.48 on an income of $ 245,000 being the profit derived by the taxpayer for the sale of the rubber estate.

The taxpayer objected to the assessment and on the Comptroller refusing to amend it the taxpayer appealed to the Board of Review against the assessment on the ground that the sale of the Rubber Estate did not constitute the carrying out of a trade within the meaning of section 10(1)(a) of the Ordinance. The Board found in favour of the taxpayer and their decision is as follows:--

"It is admitted that the appellant is not the nominee for any other

interested person or company. The Board finds that the Rubber Estate

was purchased and sold in pursuance of a scheme of purchase and resale.

The Board does not accept the evidence of the appellant to the

contrary. Nevertheless the Board is of the opinion that the profit made

by the appellant is a capital appreciation and not a profit chargeable

to tax. The appeal is allowed with costs."

From that decision the Comptroller appealed to the High Court on the ground that the Board was wrong in law in holding that the profit made by the taxpayer was capital appreciation and therefore not chargeable to tax under the provisions of section 10(1)(a) of the Ordinance. Chua J. found in favour of the Comptroller and the taxpayer now appeals from his decision on I the ground that the learned Judge erred in law in holding that the purchase and resale of the Rubber Estate by the taxpayer, which was an isolat

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