TMI Blog1986 (11) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... llery in 1926 and that the said jewellery business continued to be carried on after 1926 ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal is right in holding that the Tal Khard emeralds continued to be the stock-in-trade of the jewellery business of the assessee and was not a capital asset ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal is right in holding that the sale of Tal Khard emeralds in 1973 was not the realisation of a capital asset but the sale of stock-in-trade and the profit arising from the sale was assessable as income from business ? " The Tribunal referred to the aforesaid questions as arising out of its order dated June 24, 1977, in the Revenue's appeal for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee's stock-in-trade and their sales by the assessee had taken place in the ordinary course of business. The assessee preferred an appeal and the Appellate Assistant Commissioner accepted his appeal holding that Tal Khard emeralds were a capital asset, the sale of which gave rise to capital gain and profit could be assessed as capital gain. The Appellate Assistant Commissioner held that the assessee was a regular dealer in Tal Khard emeralds for 40 years after which he had stopped his business. He retained the stock for all this period during which no activity whatsoever was carried on by him. It was further held that the business carried on by the assessee as a partner of the firm was altogether in a different capacity. Aggrieved by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere in the possession of the assessee. The dispute is whether these Tal Khard emeralds on closure of the business by the assessee in individual capacity formed part of the stock-in-trade of the newly constituted partnership firm or remained the individual property of the assessee. The Tribunal has proceeded to decide the case on the assumption that only the form of business organisation has changed but the capacity in which the assessee was doing the business remains the same, namely, as individual. In our opinion, the Tribunal could not have arrived at this finding unless there was evidence to disclose that the Tal Khard emeralds which were held by the assessee when he closed his business as an individual 40 years ago, were handed over by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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