TMI Blog1992 (8) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... he WTO noted that the Tribunal had rejected in Shamsunder G. Aggarwal's case the claim for exemption of coins considered as archaeologically valuable. The WTO rejected the assessee's claim for exemption of miniature paintings under section 5(1)(xii) and (xiii) and also the claim for deletion of the foreign currency notes amounting to Rs. 9,076. On appeal the Commissioner (Appeals) confirmed the orders of the WTO. The valuation of these assets was upheld by him. It is against this order of the Commissioner (Appeals) that the present appeal is laid before the Tribunal. 2. The learned counsel for the assessee has pointed out that a complete list of coins has been given, indicating that they owe their existence for over a period of years if not centuries, contributing to the study of history and archaeology to fall within the scope of the exemption claimed. These coins are preserved or held by the assessee not for their metallic or other worth, but merely because they are landmarks in history over the period of centuries and give a pride of possession to the holder thereof. Even the valuation of these assets go to indicate this aspect of the matter in unambiguous terms. The learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coins are the most imperishable antiquities, and are a contemporary reflection of the culture of the times they were made. Their study yield a considerable amount of information about the past--which is the very concept of archaeological study. 3. The assessee has invested as a connoisseur and a lover of art in these coins. It was not his intention to sell them, but to retain them as pure works of art and articles of archaeological interest in the family. This has nothing to do with his business or business interest. The learned counsel stressed the statement made by the assessee before the WTO to the effect that the preservation of these coins and adding to their collection is a hobby of his and has nothing to do with the holding of the personal wealth or his business. Both the conditions with regard to nature of the asset as well as intention of not to sell are satisfied in the present case. Not only has the assessee any intention to sell these assets on the valuation date--which is the point at which the assessee's intention is to be tested--but the assessee has all intentions to preserve these assets as a heirloom from generation to generation in the family. On the question o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returns filed by them from the assessment year 1972-73 and this was clear indication of the fact that part of the silver vessels found in the assessee's possession at the time of the raid on 9-1-1975 belonged to the brothers who had also indicated it in the returns filed by them. It is also pointed out that in so far as the affidavits filed by the brothers have not been controverted by cross-examination as laid down in Mehta Parikh co. v. CIT [1956] 30 ITR 181 (SC), the assertions therein should be accepted. 5. In the grounds of appeal the assessee has challenged the increase in value of the coins, etc., by Rs. 19,688, but at the time of the hearing, this was not pressed. 6. Exemption is claimed in respect of the miniature paintings under section 5(1)(xiii), these also being held as heirlooms in the family, being not intended for sale. A complete list of the paintings is given and their correct value indicated. According to the learned counsel, the WTO was not correct in denying the exemption under section 5(1)(xiii) in respect of these paintings. It is also pointed out that the valuation adopted for these miniature paintings is excessive. 7. For the department stress is l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guments before us, that the assessee had not prior to the purchase of the assets in question at any time been closely associated or even remotely connected with pursuit of art, painting or archaeological study. He is not a student of these faculties. it is stated that he has started this as a hobby and intended to continue it for the future. This is put up to controvert the departmental challenge to the exemption on the ground that there is nothing to show that these assets were not intended for sale as required by section 5. In the statement given before the authorities below, the assessee has hinted that this was a hobby started by him. A hobby does and can relate to a cultural pursuit unconnected with business or earning but as specific statement in the reference indicates that the assessee has been advised to take up this hobby as it has substantial future potentialities. A reading of the statement indicates that the assessee has not ignored or forgotten the fact that even a hobby could be of substantial material or monetary advantage to one who pursues it. Be that as it may, the assessee has not been able to positively establish that the alleged works of art, even if they be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see's non-intention to sell them. This is only given as an illustration, but it may be possible in appropriate cases to establish directly that the assessee does not intend to sell the assets. The alternative method of satisfying the test, however, is applicable in every case and also in the present case. 11. In our opinion, neither the background of the assessee nor his conduct satisfies the test of non-intention for sale of the assets in the present case. As pointed out earlier, though highly educated, widely travelled, etc., the assessee has at no time shown an inclination for a special appreciation of works of art, paintings, or archaeological specimens. Admittedly, the assessee has not even as a layman been collecting these assets from time to time or over a time. If a person wants to collect substantial works of art, etc., as a heirloom and with no intention to sell, the normal thing would be for him to collect it as and when available and wherever available and over a period of time. We are not regarding this as an infallible test but it does provide an indication of the assessee's attitude to art and business. Even a person who is not interested as a connoisseur or is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale. Otherwise it would be possible for any person to rush into the market and before every valuation date purchase admittedly works of art and archaeological material, and claim exemption on the valuation date and sell it off subsequent thereto. The test for non-sale and the proof thereof, therefore, have to be strict. A mere assertion on the part of the assessee that these are not intended for sale may not be sufficient. We do not, however, agree with the contention of the department that merely because these assets have been purchased by a businessman and that too, as stated, purchased on one occasion, the exemption should be denied to the assessee. The exemption is available if directly or indirectly the test as to 'not intended for sale' is satisfied. We do not think that even in the case of an assessee who at one time invests a substantial part of his net wealth if not the entirety of it in works of art, paintings, archaeological material, etc., but thereafter proves that he has no intention to sell them such as by creating a trust, putting the property outside his control, clear declarations and affirmations to the effect that they should not be sold, etc., the exemption co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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