TMI Blog2008 (3) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the jewellery found at the time of search even if accepted to be their undisclosed income, the family arrangement which has been alleged to have taken place thereafter on 5.4.88, subsequent to search, could be discarded on the ground of the declaration made by Mr. Swarup Singh and Mr. Sobhag Singh in respect of status as on the date of search. (2) Whether in the present case even if the claim of the assessee about the jewellery found during search to be ancestral is discarded, on sale of such jewellery, whole of receipt can be considered as income during relevant previous year could be considered from undisclosed sources not exigible to tax as capital gains. 2. This Court, vide order dated 27.9.2001, in A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l No.41/2001 also, by framing same two substantial questions of law, as have been framed in Appeal No.68/2002, vide order dated 21.3.2007. Obviously, Mr. Bissa appears for the respondents, as such, formal issuance of notice is also not necessary. 3. This is how the two appeals arise out of the common judgment, and involve common substantial questions of law, and are being decided by this common order. 4. The necessary facts, in very brief are, that a search was conducted in the premises of Shri Sobhag Singh and Swarup Singh and other family members of the assessee in December 1987, in which, certain valuables were found, and seized. Then we are told, that on certain conditions, the valuables were released, and thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 6. It appears, that two of the family members being Sobhag Singh and Swarup Singh made certain declaration, under the Kar Vivad Samadhan Scheme (KVSS), wherein, jewellery falling to their share was declared to have been acquired by them from income by undisclosed sources, during the relevant period, relating to the assessment year 1988-89. However, it was contended that on the basis of such declaration, the assessee should not be taxed, treating sale proceeds as income from the undisclosed sources, and could be taxed only as capital gain, in accordance with law. 7. The learned Tribunal found that the issue, which is relevant is, regarding the source of jewellery, and mode of its acquisition in the hands of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o other family members, who also had sold some of the jewellery, received in their said family arrangement, had been taxed, by levying only capital gain tax, on the valuables sold. Learned counsel has also filed, with additional affidavit, a judgment of the Tribunal, rendered in the case of Ranvijay Singh , one of the recipients in the said family arrangement dated 5.4.1988, being the judgment dated 21.12.2003, in Income Tax Appeal No.1508 (JP)/1994, and stressed, that in this judgment it has clearly been found, that the assessee is liable to pay only capital gain tax. It was submitted, that this order was not challenged by the Revenue, and has acquired finality. It was also contended, that likewise, after passing of the impugned order e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance, and thus, the order impugned does not require any interference. The factual aspect of rendering the judgment in Ranvijay Singh 's case, produced by the assessee, and the fact of passing of judgment by the I.T.A.T., specifically in the cases of other family members, being recipients under the family arrangement, holding them liable to pay only capital gain tax, and those judgments having not been appealed against, has not been disputed. 11. We have considered the submissions and have gone through the papers available. In our view, firstly the declaration made by Sobhag Singh and Swarup Singh , can bind themselves only, and could not have the effect of deciding the fate of appellant assessee, when the appellant asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portant, that in case of other assessees, being the other family members, after passing of the impugned order, the Tribunal has found them liable to pay, only capital gain tax, and those orders have acquired finality, as such, the position boils down to is, that the two assessees stand meted with differential treatment, despite being similarly situated, on factual matrix, which also cannot be permitted. 14. Thus, in our view, both the questions, as framed, are required to be answered in favour of the assessee, and against the Revenue, and are accordingly answered. The appeals are allowed. The impugned orders of the learned Tribunal are set aside. The matter will now go back to the Assessing Officer, to give effect to this order, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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