9911796707
TMI Blog1982 (4) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... silver utensils worth Rs. 22,131 on 25th Jan, 1976 to some Bombay party. It was claimed before him that the silver utensils were in the form of personal effects and, therefore, not liable to capital gains. The ITO went on to way that the utensils sold included a silver thali, weighing 21.027kgs. He noted that the personal effects have not been defined in the Act but they are held to be articles intended for personal use in the daily life of the assessee, considering his status, custom and the society to which he belonged. The ITO and observed that no evidence has been put forward by the assessee and that where there was no use or possibility of the articles being put to use, they would not come within the category of personal use. He refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t these utensils were of personal use by the assessee and the family members. It is urged that the orders of the AAC may be set aside and the appeal by the assessee may be allowed. It is stressed that the silver utensils, including Thali, were for personal use of the assessee and not for display of those articles which consisted of plates and other silverwares. At the time of hearing, reliance is placed also on the decision of the Appellate Tribunal, Jaipur Bench, being ITA No. 1578/JP/79 dt. 30th Nov, 1979, a copy of which has been placed in our file. 4. On behalf of the revenue, the ld. D.R. supports the order of the AAC, while resisting the contentions made on behalf of the assessee. At the first instance, it is submitted that the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was sold. It is stated that there were various items of silver utensils which were sold and the finding of the ITO to that effect was quite clear. One Thali was included along with other articles for which the total weight came to more than 21 kgs. 5. We have perused the orders of the authorities below for our consideration along with the rival contentions of both the sides. At the out-set, it may be mentioned that right from the start the assessee has been contending before the ITO that the silver utensils, including one Thali, were used by the assessee as his personal effects and that on the sale of the same, no capital gains could be said to have arisen. From the orders of the ITO it is seen that there were several utensils which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definition of capital asset. The word "including" mentioned in the above section goes to indicate that there may be other personal effects, apart from the effects and articles mentioned in the section. The Appellate Tribunal noted that the silver utensils in that case were personal effects of the assessee and they were used by the assessee daily. In the case before us also, the facts are similar. There is no material to come to the conclusion that the silver utensils of the assessee in the present case were the capital assets of the assessee at any particular point of time. In fact, there is no finding as such by the ITO or the AAC. We respectfully agree with the decision of the Jaipur Bench to the effect that the word "including" used in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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