GEORGE CHERIYAN, A. M. This appeal is by Revenue. We have heard ld. Departmental Representative, and though none is present on behalf of assessee, we consider that facts are such that appeal can be disposed of on merits. assessment for asst. yr. 1982-83 was made in status of AOP. What was brought to tax was net income by way of winnings from lottery ticket where first prize was jointly won by Sri P. Sadasivam and Sri K. . Easwaran of Komarapalayam. first prize was of Rs. 1,25,000 and ticket which was purchased jointly by these two persons was ticket No. HE 235797 of Himachal Pradesh. prize was won in draw held on 19th Jan., 1982 and copy of certificate of Canara Bank has been produced before ITO to show that two persons had deposited ticket for recovery of prize amount. assessee had relied on order of Tribunal in ITA No. 1008(Mds)/78-79 in case of M/s A. N. Chandrasekharam & Ors. dt. 21st Sept., 1979 to claim that they could not be assessee as AOP and each of individuals should be separately assessed. ITO did not agree holding that there was joint venture to earn money and, therefore, correct status would be that of AOP. In appeal AAC set out certain observations from order of Tribunal referred to, which was as under: "Mere purchase of lottery tickets would not lead conclusion that two person are associated in commercial activity of producing income. Absolutely no activity of any kind is also involved in getting prize amount which depends wholly on stroke of luck. There is no need for any common management with reference to securing prize amount which cannot be obtained by any amount of expert management except by sheer luck." and held that from facts there was not AOP. Before us ld. Departmental Representative submitted that there was clearly coming together of two persons with idea of making profit and status should be that of AOP. As far as this contention of concerned, contention is same as was considered by Tribunal elaborately in order in ITA No. 1008(Mds)/78-79 already referred to and it was eventually negatived by Tribunal. Therefore, we hold that assessment in status of AOP would not be warranted in present case also. alternate argument of ld. Departmental Representative was that following ratio of judgment of Madras High Court in N. P. Saraswathi Ammal vs. CIT (1982) 138 ITR 19 (Mad) status should be taken as that of BIO. term "BIO" of course, according to ratio of Madras High Court, cannot be equated to that of AOP. court held that concept of "BIO" excludes crucial characteristics of AOP, such for instance, common intention and common activity to produce taxable income. There is also observation that persons who do nothing but stand and wait may not be AOP, but, they may yet be BIO, if they stand together, and wait for something to be shared together, and wait for something to be shared between them. case before Madras High Court was one where family group carried on business consequent to certain testamentary devaluations. court observed at p. 26 while upholding status of BIO in that case as under: "What is more, object which united them economically was not just investment in property but live business undertaking. Business, as species of property, differs from other subject of ownership in that it is not static, but involves constant flow of transaction upon transaction every day, subject to risks and vicissitudes unlike in other kinds of property, and requiring overt acts of management by those who wish to profit by it." In present case being lottery ticket is not carrying on live business undertaking. There is not further transaction to be done from day to day after purchase of ticket till results are declared. Hon'ble High Court has also clearly stated in judgment that they were not lying down what was really meant by BIO in authoritative or definitive fashion and it could be manner for IT authorities as well as Tribunal to consider facts in each case. That is what we are doing in present case. Winnings from lotteries became taxable because they fall under category of deemed income; otherwise winning prize would be only windfall and would not have been subject to tax. Tribunal in order referred to had held that mere purchase of lottery ticket would not lead to conclusion that persons were associated in commercial action of producing income and result of getting prize money was nothing but as consequence of sheer luck. mere fact that by stroke of fortune one of tickets fetched prize would not in our view be taken as consequence of any action on part of BIO. All that has happened is that two persons jointly purchased lottery ticket. Each was co-owner of lottery ticket. If lottery ticket won no prize each lost his share of investment, though it may be nominal, and once draw was over and no prize was fetched, they became divested of property of which they were co-owners, namely lottery ticket. If particular ticket drew prize, it was only as result of fortuitous circumstances and each of them had right to share prize money equally. Thus they become co-owners in prize-money. We, therefore, hold that two persons by purchasing lottery ticket jointly did not constitute BIO. We, have already held that they did not constitute AOP. Therefore, appeal of Revenue is dismissed. *** FOURTH INCOME TAX OFFICER v. P. SADASIVAM & ORS.