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TMI Blog1992 (9) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... l gains under section 45 of the said Act?" The assessee was a partner in two commercial firms. The Incometax Officer assessed, him under section 143(3) of the Act assessing his taxable income at Rs. 63,880 for the assessment year 1978-79. The taxable income has been arrived at after taking into consideration the capital gain of Rs. 41,761 resulting from the sale of silver utensils on two occasions, namely, silver utensils weighing 49.550 Kgs. on October 8, 1977, at Rs. 59,212 and silver utensils weighing 28.2 Kgs. on May 13, 1977, for Rs. 34,827. The Income-tax Officer took the view that the silver utensils were capital assets as defined in section 2(14) of the Act and are not personal effects exempted in clause (ii) of section 2(14) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The answer of learned counsel, Shri Saraf, for the assessee is two-fold. He contends that the questions whether the Tribunal has committed any error in its findings or whether the Tribunal has not properly considered the materials before arriving at a finding, whether the finding of the Tribunal that the silver utensils in this case fall within the category of personal effects exempted under section 2(14)(ii) of the Act, have not been referred to this court under section 256(1) of the Act and, therefore, this court could not go into those questions. Learned counsel also contends that on the materials before this court, it has to be held that the silver utensils are not capital assets as defined. The relevant portions of section 2(14) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the statutory authorities was whether these utensils were held for personal use by the assessee or any member of his family dependent on him. The Income-tax Officer held against the assessee while the Appellate Assistant Commissioner and the Tribunal held in favour of the assessee. On the finding that these utensils are personal effects, that is, effects held for personal use by the assessee or any member of his family dependent on him, the necessary corollary is that those utensils are not capital assets for the purpose of section 2(14) of the Act. The question substantially argued before us by learned counsel for the Revenue is that the Tribunal committed an error in finding that the silver utensils are personal effects, that is, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court. We have earlier referred to the facts found and the circumstances relied on by the Tribunal, the final fact finding authority. It is for the Tribunal to find facts and it is for the High Court and this court to lay down the law applicable to the facts found. Neither the High Court nor this court has jurisdiction to go behind or to question the statements of fact made by the Tribunal. The statement of the case is binding on the parties and they are not entitled to go behind the facts found by the Tribunal in the statement. " The second decision referred to above is a decision of a Division Bench of the Kerala High Court. The judgment was delivered by Thommen J. (as he then was). The question referred to the High Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified or perverse or not based on reasonably acceptable evidence that must be the subject-matter of reference and in the absence of such challenge the particular question referred, namely, whether the articles in question are capital assets must necessarily be answered in favour of the assessee, based on the finding of the Tribunal that they are personal effects. Similar is the state of affairs in the present case. The Tribunal referred to the arguments advanced on behalf of the assessee to the effect that the detailed list of utensils would show that they were capable of being used as utensils because these constituted a complete dinner set, that the numbers of each item of utensils are also compatible with the assessee's claim of its be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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