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TMI Blog2011 (5) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that the evidence filed by the assessee was believable and, therefore, the onus was shifted to the Revenue to prove that the items sold were not personal effects of the assessee ? (3) Whether the items sold by the assessee were 'personal effects' so as to fall within the ambit of the exclusionary clause of section 2(14) of the Act, which defines 'capital asset' ?" 2. The aforesaid questions have arisen for consideration on the following set of facts. 3. In the return filed by the assessee for the assessment year 2002-03 he declared income of Rs. 31,71,656. The Assessing Officer noticed that in the bank account of the assessee there is a deposit aggregating to Rs. 39.47 lakhs, which, according to the assessee, was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his claim for exemption under section 2(14) of the Act. This was the additional ground on which he rejected the plea of exemption under section 2(14) of the Act. 5. The assessee preferred an appeal thereagainst before the Commissioner of Income-tax (Appeals). The Commissioner of Income-tax (Appeals) held that the items sold were articles meant for personal use and were, therefore, personal effects. The entire discussion of the Commissioner of Income-tax (Appeals) on this aspect is in the following terms : "Before deciding the appeal, I would like to clarify that the assessee has sold certain furniture items including fixtures, household items, silk carpets, paintings, etc., which were assets of personal use of the assessee's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised. The Tribunal has dismissed this application, vide order dated July 17, 2009, stating that no ground was raised that some articles were personal effects or capital assets. 7. The present appeal was filed even when the aforesaid application under section 254(2) was pending before the Tribunal. In this appeal, it is clear from the proposed questions of law that both the aspects of the issue are questioned by the Revenue. 8. In so far as the question of the genuineness of the sale by the assessee to various buyers at a sum of Rs. 39.47 lakhs is concerned, after going through the orders of the Commissioner of Income-tax (Appeals) as well as of the Income-tax Appellate Tribunal we are of the opinion that the finding of fact is ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome-tax (Appeals) also discussed this issue though he treated the same as personal effects. Under these circumstances, one of the issues was whether the articles claimed to be sold by the assessee are capital assets or not as per section 2(14) of the Act. Even otherwise, the nature of the articles which were sold as extracted above was taken on record by the Tribunal. 12. The question was only of the applicability of section 2(14) in respect of these articles. No factual aspects were involved and it was a question to be decided on the basis of facts. 13. Under these circumstances, we are of the opinion that the Tribunal should have gone into this issue and decided the same. For this reason alone we remit the case back to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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