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TMI Blog2012 (6) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 39,47,136/-. With regard to the amount of Rs. 39,47,136/- stated to be received on sale of personal effects, the ITAT concluded as under:- "6.3 We have considered the facts of the case and rival submissions. We find that the assessee had received various items described above, from her aunt by way of gift. The gift deed has not been challenged by the Assessing Officer. In view thereof, his objection that the place of keeping these items was not disclosed, is not really material. Further, the assessee has furnished confirmations from the buyers and all of them have confirmed that the respective amounts were paid in cash in financial year 2001-02. All confirmations contain the addresses and some contain permanent account number also. It was also explained to us by the learned counsel that there were an error in mentioning financial year as 2001-02, which should have been read as assessment year 2001-02. Thus, the whole of this money was available with the assessee on or before 31.3.2001. Such an error is feasible as the assessee and the buyers are not expected to be well conversant with the tax terminology. This whole evidence cannot be converted into no evidence by pointin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ems sold by the assessee were personal effects. On further appeal by the Revenue, the Hon'ble Court directed in their order dated 10th May, 2011 in I.T.A. no.929/2009 in the following terms:- "10. The ground which was taken by the revenue in the appeal before the Tribunal reads as 'on the facts and circumstances of the case and in law', the CIT(A) erred in holding the additions of Rs. 1,09,40,000/- allegedly made by the Assessing Officer. The aforesaid amount of Rs. 1,09,40,000/- includes the amount of Rs. 39.47 lakhs as well. No doubt no separate ground was raised by the revenue dealing with the nature of articles sold by the assessee against which he had realized a sum of Rs. 39,47 lakhs. However, the ground relating to addition of Rs. 1,09,40,000/- was raised. In the ground it was specifically stated that whether the addition made by the Assessing Officer was correct 'in law'. The aspect as to whether the articles sold were to be treated as personal effects or capital assets was specifically considered by the Assessing Officer. 11. The CIT(A) also discussed this issue though he treated the same as personal effects. Under these circumstances, one of the is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toilet items, etc., for intimate use by an individual. In Black's Law Dictionary, the expression is defined to include articles associated with person, as property having more or less intimate relation to person of possessor. In the light of these definitions and referring to decisions in Maharaja Rana Hemant Singh Ji v. CIT [1976] 103 ITR 61 (SC); & R. Ramanathan Chettiar v. CIT [1985] 20 Taxman 52 (Mad.), especially when the assessee failed to establish the identity of the items sold individually to each buyer, which were claimed exempt u/s 2(14) as also failed to establish as to how and where these items were kept by him prior to sale, the AO concluded that the assessee had not been able to establish genuineness of his claim for exemption u/s 2(14) of the Act. 5. On appeal, the learned CIT(A) concluded on the issue as under:- "4. 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 father and parcel of the immovable properties the assessee has inherited The assessee was using these assets along with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings, silver bed chairs, dining pieces and heirloom jewellery meant for personal use has been treated as personal effects. Accordingly, the ld. AR vehemently argued that all the items sold as per details on page 8-9 of the paper book were personal effect and thus, excluded from the definition of capital asset. While inviting our attention to amended definition of 'capital asset' as per Section 2(14) of the Act, the ld. AR on behalf of the assessee supported the findings of the ld. CIT(A). 8. We have heard both the parties and gone through the facts of the case as also the decisions referred to by the ld. AR .The only issue before us is as to whether the articles claimed to be sold by the assessee are capital assets or not as per section 2(14) of the Act. The AO pointed out in the assessment order that the assessee failed to establish identity of articles sold to each of the buyer individually while the assessee merely claimed that sale of items like carpets, paintings, antique watches, antique furniture and other household items fall within the purview of personal effects under sec. 2(14) of the Act. The ld. CIT(A) did not even identify articles sold individually to each o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,50,000/- in cash on account of purchase of household & furniture items. The nature & description of individual household articles or furniture is not evident from this confirmation. Page 43 is confirmation of accountant of Shriram International for payment of Rs. 1,40,000/- in cash on account of purchase of artificial jewellery. The description & nature of individual artificial jewellery is not evident from this confirmation. Page 44 is confirmation of Mr. Gopal Kohli of San Francisco, USA for receipt cash of Rs. 45,000 towards sale of painting. Page 45 is another similar confirmation of Mr. Govind Kohli of Davol Square, Providence for receipt cash of Rs. 47,000/- towards sale of collector items. Here also what is the nature & description of collector items is not evident from this confirmation. Page 46 is confirmation of Mr. Pradeep Goyal for payment of Rs. 5,10,000/- on account of purchase of household articles & furniture. The nature & description of individual household articles or furniture is not evident from this confirmation. Page 47 is another confirmation of Mr. RPS Mann of Kasauli for receipt cash of Rs. 45,000/- towards sale of carpets. Page 48 is another similar conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects can legitimately be said to be personal which pertain to the assessee's person. Hon'ble Apex Court in the case of H.H. Maharaja Rana Hemant Singhji v. CIT [1976] 103 ITR 61, explained the term "personal use" as under : "The expression "personal use" occurring in clause (ii) of the above quoted provision is very significant. A close scrutiny of the context in which the expression occurs shows that only those effects can legitimately be said to be personal which pertain to the assessee's person. In other words, an intimate connection between the effects and the person of the assessee must be shown to exist to render them "personal effects". The enumeration of articles like wearing apparel, jewellery, and furniture mentioned by way of illustrations in the above-quoted definition of "personal effects" also shows that the legislature intended only those articles to be included in the definition which were intimately and commonly used by the assessee. The meaning assigned to the expression "personal effects" in various dictionaries also lends support to this view. In the Unabridged Edition of the Random House Dictionary of the English Language, at page 1075, the expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... father and uncle while acquired under a gift deed dated 5.2.1999 from Mrs. Saiyada Mohdi Imam, certain silk carpets, painting, crystal items, antique watches, decorative items, furniture & fittings (various items). There is no direct evidence available before us in support of the claim of the assessee that these inherited and gifted articles were in personal use by the assessee or his dependent family members. First of all the composition of the family of the assessee and his dependents is nowhere placed before us by the ld. AR. The exact description and location of the movables has not been placed before the lower authorities and even before us while immoveable properties are stated to at three different locations in Patna, one in Mussorie and other at New Delhi. As already observed, the confirmations of sales even do not reveal nature/description or location of items or even number of articles at the time of their sale. When we look at the list of items inherited or received by way of gift in the background of the assessee, it cannot be said that all these are were in personal use of the assessee; not even an iota of evidence is on record that the aforesaid articles were meant f ..... 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