TMI Blog2012 (6) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... - - Dated:- 31-5-2012 - U. B. S. Bedi And A. N. Pahuja, JJ. ORDER A.N. Pahuja, Accountant Member This appeal was earlier disposed of vide order dated 17th October, 2008 .Only issue in the appeal related to addition of ₹ 1,09,40,000/- u/s 68 of the Income-tax Act,1961 [hereinafter referred to as the 'Act']. The break up of the amount as given on page 2 of the aforesaid order dated 17.10.2008, is as under:- S. No. Date Amount [In Rs.] 1. 3.4.2001 ₹ 72,40,000/- 2. 9.4.2001 ₹ 14,00,000/- 3. 8.6.01 ₹ 2,00,000/- 4. 8.6.01 ₹ 2,00,000/- 5. 9.6.01 ₹ 1,00,000/- 6. 8.10.01 ₹ 8,00,000/- 7. 21.11.01 ₹ 10,00,000/- ₹ 1,09,40,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held that the assessee failed to discharge this onus. However, in regard to sale of various items, the assessee has proved ownership and also brought sufficient evidence on record from a number of different persons, who are identifiable, to show that the sales were, in fact, made. He is not a dealer in antiques and personal effects. Therefore, it was not expected that he will maintain a detailed account of each sale along with a foolproof evidence thereof. The evidence produced by the assessee is believable on the face of it and, thus, the onus thereafter shifted to the revenue to prove either the items were not received by way of gift or they were not sold. Instead of doing so, the revenue has picked up some holes in the evidence, which according to us, do not displace the onus from the revenue to the assessee again. In this view of the matter, we are of the view that the learned CIT(A) was right in holding that nature and source of this money has been proved along with the fact that this money was available with the assessee on the date of deposit in the bank. The revenue has not challenged before us the findings of the learned CIT(A) that the items were personal effects. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant orders are that to a query by the AO seeking further information in respect of claim made by the assessee that deposit of ₹ 39,47,136/- was on account of sale of personal effects, the assessee replied that he had taken possession of various household items, paintings, collector items, furniture items etc., which, according to the assessee were either owned by his grandfather or father or uncle and aunt of the assessee. The assessee claimed that these articles being for personal use, are personal effects and therefore, excluded from the definition of capital assets. The items received by the assessee are detailed in the assessment order as under:- (A) Carpets (Silk on Silk Carpets) 35 items (B) Paintings 20 pcs. (C) Collector items which included Antique watches, rings Decorative items. 14 pcs (D) House hold items which Included crystal items. 12 pcs (E) Antique furniture which Includes table, chairs, Center table. Chest etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmations from these parties through inspector deputed with him. All the parties corroborated the statement of the assessee. Further nothing adverse has been brought on record by the Assessing Officer to negate the stand of the assessee. In such facts and circumstances of the case, I am of the opinion, that cash accruing on sale of personal effects was also available with the assessee. 6. In terms of the aforesaid directions of the Hon'ble High Court, issue before us is as to whether or not the articles claimed to be sold by the assessee are capital assets as per section 2(14) of the Act. The ld. DR while supporting the findings of the AO, contended that the assessee did not establish as to how the items sold by the assessee were his personal effects. 7. On the other hand, the ld. AR on behalf of the assessee while carrying us through page 14 to 17 of the paper book contended that the assessee belongs to a very respective family and inherited various items like paintings, carpets ,collector's items, antiques, furniture and fittings. The details of these items sold to various persons is mentioned on page 8 and 9 of the paper book. Some of these items were received in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee is not understood. Here let us advert to the articles mentioned in the confirmation of sales furnished by the assessee and placed on page 34 to 51 of the paper book. Page 36 of the paper book contains confirmation of Shri Syed M Ahmed for purchase of old carpets, curios and other collector items for INR 8.81 lacs. Neither the number of carpets, curios or collector items nor any other identification is evident from the said confirmation. Page 37 is confirmation of Mrs. Sheel Goel for receipt of a sum of ₹ 26,000/- in cash towards household items sold to her. The description nature of individual household articles is not evident from this confirmation. How this confirmation establishes the articles as personal effects has not been explained before us nor any evidence that these articles were for personal use by the assessee or his family members, has been brought to our notice. Next page 38 mentions payment of ₹ 40,000/- in cash by Mrs. Ridhima Sarin residing in Indonesia for purchase of collector items from Shri FM Ali. Complete address is not given nor any identification of collector items. Page 39 is another confirmation of Mrs. Rohini Wahi for receipt cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r items. Here also address of Mrs. Jaspal or the nature description of collector items is not evident from these confirmations. In nutshell, there is nothing in these confirmations regarding description, nature or number of household articles or furniture or collector items or artificial jewellery nor any evidence has been placed before us to suggest that these articles were for personal use by the assessee or by his dependent family members and thus, were personal effects of the assessee. 8.1 Before proceeding further, we may have a look at the extant provisions of sec. 2(14) of the Act, which read as under: 2(14) capital asset means property of any kind held by an assessee, whether or not connected with his business or profession, but does not include- (i) any stock-in-trade, consumable stores or raw materials held for the purposes of his business or profession; (ii) personal effects, that is to say, movable property (including wearing apparel and furniture, but excluding jewellery) held for personal use by the assessee or any member of his family dependent on him. Explanation.-For the purposes of this sub-clause, jewellery includes- (a) ornaments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c Law Dictionary, Third Edition, at page 832, the expression personal effects without qualifying words is interpreted to include generally such tangible property as is worn or carried about the person. In Words and Phrases (permanent edition), volume 32, at page 277, it is stated that the words personal effects when used without qualification, generally include such tangible property as is worn or carried about the person, or to designate articles associated with the person. At another place at the same page, it is stated that the words personal effects are used to designate articles associated with person, as property having more or less intimate relation to person of possessor or such tangible property as attends the person. Bearing in mind the aforesaid meaning assigned to the expression in various dictionaries and cases, the silver bars or bullion can by no stretch of imagination be deemed to be effects meant for personal use. Even the sovereigns and the silver coins which are alleged to have been customarily brought out of the iron safes and boxes on two special occasions, namely, the Ashtami Day of Sharadh Paksh for Maha Lakshmi Puja and for worship on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other such decorative items. In the absence of nature or description of various items in the confirmation of sales, it cannot be said that these very items inherited or received in gift alone were sold and before that were individually, commonly or personally used by the assessee and his dependent family members. Mere declaration of such an intention cannot convert them into articles of personal use. Now the decisions relied upon by the ld. AR before us, are not of any assistance to the assessee, especially when in all these decisions exact nature and description of items has been given. Likewise the occasion on which the jewellery is used depends upon the nature of the jewellery. Before us not even a whisper has been made in respect of jewellery as to whether it was meant for females or males or on which occasiosn it was used by whom. In respect of antique or decorative items and collectors items, we are of opinion that these cannot be classified as personal effects. If the assessee has made any collection which might give him solace or pleasure whenever he looks at the collection, such collection cannot be classified as personal effects as held in H.R. Maharaja Rana Hemant S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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