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TMI Blog2014 (9) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... - prior to 01.04.2008, a painting could be regarded as a “personal effect” - But, before a painting can be regarded as a “personal effect” there must be evidence on record to show that it was intimately and commonly used by the assessee - There is no such evidence on either side, and the matter is to be remitted back to the AO for determination on the basis of evidence – Decided in favour of assessee. - W. P. (C) 5560/2013 - - - Dated:- 26-8-2014 - Badar Durrez Ahmed And Siddharth Mridul,JJ. For the Petitioner : Mr. Karthik Ashok. For the Respondents : Mr Balbir Singh and Mr Abhishek Singh JUDGMENT Badar Durrez Ahmed, J (Oral) 1. This writ petition is directed against the order dated 25.03.2013 passed by the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purview of the personal effects and were specifically brought within the ambit of capital assets. It was contended by the petitioner that the mistake made by her by treating the painting as a capital asset and not as a personal asset even for assessment year 2006-07 (i.e., prior to 01.04.2008) was realized subsequent to her filing of the return and receipt of the intimation under Section 143 (1) of the said Act. Thereupon, she moved an application seeking rectification of the mistake and consequent refund of the said amount of ₹ 4,42,286/-. That application was rejected by the Assessing Officer on 23.01.2012. Being aggrieved thereby, the petitioner/assessee filed a revision application under Section 264 which also has been rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gical collections; (c) drawings; (d) paintings; (e) sculptures; or (f) any work of art. Explanation. For the purposes of this sub-clause, jewellery includes (a) ornaments made of gold, silver, platinum or any other precious metal or any alloy containing one or more of such precious metals, whether or not containing any precious or semi-precious stone, and whether or not worked or sewn into any wearing apparel; (b) precious or semi-precious stones, whether or not set in any furniture, utensil or other article or worked or sewn into any wearing apparel; 5. The issue as to whether a painting could, at all, be a personal effect or not, was considered by a Division Bench of this Court in Faiz Murtaza Ali v. Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce on record, the Court found that the articles in question ought to have been held to be personal effects of the assessee. This is evident from the following passage from the said decision:- 11. Looking at the totality of circumstances we are of the view that the assessee has been able to show that the articles in question were inherited and/or received by him by way of gift. Those articles were moveable properties. They did not include any jewellery and they had been held for personal use by the assessee and they were subsequently sold by him to various buyers. The fact that these articles were held by him for personal use has been indicated in the affidavit filed by the assessee before the assessing officer. No material has been br ..... X X X X Extracts X X X X X X X X Extracts X X X X
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