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2013 (3) TMI 100 - HC - Income TaxIncome From Undisclosed Sources - ITAT deleted the addition - Whether item sold by the assessee were "personal effects" so as to fall within the ambit of exclusionary clause of Section 2(14) which defines "capital asset" - onus to prove that the items sold were not personal effects of the assessee will be on whom ? - Held that:- The Supreme Court in CIT Vs. H H Maharani Usha Devi (1998 (5) TMI 5 - SUPREME COURT) had observed that the High Court in Himatlal C. Valia Vs. CIT [2000 (9) TMI 41 - GUJARAT HIGH COURT] had rightly held that the frequency of use of the property must necessarily depend on the nature of the property and that merely because from the nature of the property, it could be used on ceremonial occasions only, it did not follow that the property was not held by the assessee for personal use. Thus as in the present case the only evidence that is forthcoming is the affidavit of the assessee where he has indicated that the said articles were for his personal use. He has also indicated that these articles were received by him from two streams, one, by way of inheritance from his father and uncle and the other, by way of a gift deed from his aunt. Whatever be the mode of acquisition of articles, the fact, as stated in his affidavit, is that these were in his personal use. Those articles were moveable properties. They did not include any jewellery and they had been held for personal use by the assessee and they were subsequently sold by him to various buyers. The fact that these articles were held by him for personal use has been indicated in the affidavit filed by the assessee before the assessing officer. No material has been brought out by the assessing officer or the revenue to indicate that the affidavit is false. Therefore, on the basis of evidence on record, the articles in question ought to have been held to be "personal effects" of the assessee. The amendment to section 2(14) has prospective operation with effect from 01.04.2008, whereas in the present case the assessment year is 2002-03 - appeal decided in favour of the assessee and against the revenue.
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