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Acit, circle 32(1), room no. 376-a, cr building, ip estate, new delhi Vs. sh. pragy arya, d-25, defence colony, new delhi
November, 04th 2014
                                             ITA NOS. 4139/DEL/2011 & 4188 & 4189/Del/2013
                                                           AND CO NOS. 158 & 159/DEL/2014


               IN THE INCOME TAX APPELLATE TRIBUNAL
                      DELHI BENCH "F", NEW DELHI
              BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER
                                  AND
               SHRI J.S. REDDY, ACCOUNTANT MEMBER
                        I.T.A. Nos. 4139/DEL/2011
                                      AND
                             I.T.A. Nos. 4188 &
                               4189/Del/ 2013
                            A.Yrs. : 2008-09 AND
                             2006-07 & 2007-08
ACIT, CIRCLE 32(1),               VS.                     SH. PRAGY ARYA,
ROOM NO. 376-A,                                           D-25, DEFENCE
CR BUILDING,                                              COLONY,
IP ESTATE, NEW                                            NEW DELHI
DELHI
                                                          (PAN:ADQPA1878D)
(APPELLANT)                                               (RESPONDENT)

                                  AND
                             C.O. NOS. 158 &
                               159/DEL/2014
                          (IN I.T.A. NOS. 4188 &
                              4189/DEL/2013)
                        A.Yrs. : 2006-07 & 2007-08
SH. PRAGY ARYA,                VS.                        ACIT, CIRCLE 32(1),
D-25, DEFENCE                                             ROOM NO. 376-A,
COLONY,                                                   CR BUILDING,
NEW DELHI                                                 IP ESTATE, NEW
                                                          DELHI
(PAN:ADQPA1878D)
(APPELLANT)                                               (RESPONDENT)

        Department by                 :   Sh. Shameer Sharma, Sr. DR
         Assessee by                  :   Sh. Rajiv Saxena & Prakash
                                          Yadav, Advocates


                      Date of Hearing : 22-10-2014
                      Date of Order    : 30-10-2014

                                     ORDER
PER H.S. SIDHU : JM


                                     1
                                            ITA NOS. 4139/DEL/2011 & 4188 & 4189/Del/2013
                                                          AND CO NOS. 158 & 159/DEL/2014


     These are the three appeals filed by the Department and Cross
Objections filed by the Assessee emanuate from separate orders of
Ld. CIT(A), New Delhi. The appeals of the Revenue are relevant to
asstt years 2006-07 to 2008-09 and Cross Objections of the assesee
are relevant to    asstt. years 2006-07 to 2007-08. Since the issues
involved are common and identical, therefore, for the sake
convenience we are adjudicated the same by this                     consolidated
order.

2.   The grounds raised by the Revenue for the asstt. year 2006-

07 read as under:-


          1.      "Whether the CIT(A) has erred in the facts &
          circumstances of the case in holding that paintings sold
          by assessee were personal effects in spite of the vital
          observation of the AO that paintings were not personal
          effects."

          2.      "Whether the CIT(A) has erred in the facts &
          circumstances of the case in ignoring the vital admitted
          fact that the two paintings were sold at a price higher
          than the purchase price by the company of the same day
          of purchase despite of the fact that the assessee himself
          was controlling the same company i.e P Aryan Art Gallery
          (P) Ltd and by doing this made collusive arrangement to
          avoid tax on a major part of the profit."

          3.      "Whether   the   CIT(A)     has       erred       in     facts      &
          circumstances of the case in granting relief to assessee
          on the basis' of a copy of affidavit filed by assessee
          stated to be not examined by the Aa despite the fact that
          the     assessee   has   not   furnished         event         the    basic

                                   2
                                          ITA NOS. 4139/DEL/2011 & 4188 & 4189/Del/2013
                                                        AND CO NOS. 158 & 159/DEL/2014


          details/bank account etc during 31 opportunities allowed
          to him."

          4.      "Whether the CIT(A) has erred in the facts &
          circumstances of the case in ignoring the observation and
          also corroborative evidences brought on record by the AO
          during assessment as well as the remand proceedings
          which proves that assessee is actively engaged in the
          business of sale & purchase of paintings."

          5.      "Whether the CIT(A) has erred in the facts &
          circumstances of the case in deleting the addition of
          Rs.1,14,75,5OO/- made as business income and in
          holding that paintings were personal effects of assessee."

          6.      "The appellant craves leave to add, alter or amend
          any/all of the grounds of appeal before or during the
          course of the hearing of the appeal.

3.   The grounds raised by the Revenue for the asstt. year 2007-08
read as under:-

               1. "Whether the CIT(A) has erred in the facts &
               circumstances of the case in holding that paintings sold
               by assessee were personal effects in spite of the vital
               observation of the AO that paintings were not personal
               effects."

               2. "Whether the C!T(A) has erred in the facts &
               circumstances of the case in ignoring the vital admitted
               fact that the two paintings were sold at a price higher
               than the purchase price by the company of the same
               day of purchase despite of the fact that the assessee
               himself was controlling the same company i.e P Aryan

                                    3
                                               ITA NOS. 4139/DEL/2011 & 4188 & 4189/Del/2013
                                                             AND CO NOS. 158 & 159/DEL/2014


               Art Gallery ( P ) Ltd and by doing this made collusive
               arrangement to avoid tax on a major part of the profit."

               3. "Whether      the   C!T(A)     has       erred       in     facts      &
               circumstances of the case in granting relief to assessee
               on the basis of a copy of affidavit filed by assessee
               stated to be not examined by the AO despite the fact
               that the assessee has. not furnished event the basic
               details/bank     account etc during             31     opportunities
               allowed to him."

               4. "Whether the CIT(A) has erred in the facts &
               circumstances of the case in ignoring the observation
               and also corroborative evidences brought on record by
               the AO during. assessment as well as the remand
               proceedings which proves that assessee is actively
               engaged in the business of sale & purchase of
               paintings."

               5. "Whether the CIT(A) has erred in the facts &
               circumstances of the case in deleting the addition of
               Rs.3,20,56,480/- made as business income and in
               holding   that    paintings   were        personal           effects     of
               assessee."

               6. "The appellant craves leave to add, alter or amend
               any/all of the grounds of appeal before or during the
               course of the hearing of the appeal."

4.   The grounds raised by the Revenue for the asstt. year 2008-09
read as under:-

          1.      "On the facts and circumstances of the case,
          whether Id.CIT(A) was correct in holding that income from

                                      4
                               ITA NOS. 4139/DEL/2011 & 4188 & 4189/Del/2013
                                             AND CO NOS. 158 & 159/DEL/2014


sale of' paintings was assessable under the head :
'Capital Gain' as against assessed by the A.O. under the
head    "Business"    when    prior      to      introduction           of
Amendment by Finance Act,2007 w.e.f. 01.04.2008 the
same was not shown as Capital Gain in the guise of
Personal Effect vis-a-vis Capital assets."

2.     On the facts and circumstances of the case,
whether the Id CIT(A) was correct in accepting the
contention of the assessee that the paintings sold by him
were ancestral properties when the assessee could not
substantiate the claim with any evidentiary documents in
the form of will/inheritance deed etc.

3.     On the facts and circumstances of the case,
whether the Id CIT(A) was correct in holding the income
from sale of paintings under the head "Capital Gain"
when series of transactions incurred by the assessee
shows that the assessee held the various painting as
stock in trade and the sold them when a good
opportunity for the same was available and the assessee
had been continuously and habitually engaged in
substantive and systematic course of activity with the set
purpose of making profit assessable under the head
"Income from Business".

4.     On the facts and circumstances of the case,
whether the Id,.CIT(A) was correct in admitting additional
evidence in violation of Rule 46A by relying on a letter
dated 19.1.2008 from 'M/s Osian's Connoisseurs of Art
pvt Ltd which was never subject matter during the course



                        5
                                            ITA NOS. 4139/DEL/2011 & 4188 & 4189/Del/2013
                                                          AND CO NOS. 158 & 159/DEL/2014


          of assessment proceedings u/s 143(3) and was also not
          asked by the Id.CIT(A) to be commented upon by the A.O.

          5. The appellant craves leave to add, alter or amend
          any/all the grounds of appeal before or during the course
          of hearing of the appeal."

5.   The grounds raised by the Assessee in the Cross Objection for

the asstt. year 2006-07 read as under:-


                1.   That the CIT (A) has erred in law as well as on
                facts in justifying the reopening of the assessment
                because she failed to appreciate that:

                     (a)     AO has no reason to believe that assesse
                is engaged in the business of sale and purchase
                transactions of paintings.

                (b) AO had no fresh material on record, which led
                him to believe for reopening the assessment as
                provided U/S 147 even if the same was completed
                U/S 143 (1) of the IT Act, 1961.

                ( c ) The paintings were kept as personal affect
                which      were   treated    as      capital       asset        w.e.f.
                01.04.2008 only but not in earlier years.

                (d) There was no escaped income as all the receipts
                were duly been declared being received through a/
                c payee cheques in the bank statements.

                (e) Assessee has not kept paintings as stock-in-
                trade or maintained any books of account for
                claiming expenditure against any such business.





                                   6
                                           ITA NOS. 4139/DEL/2011 & 4188 & 4189/Del/2013
                                                         AND CO NOS. 158 & 159/DEL/2014


                (f)    View of the assessee was held to be justfied
                by the CIT(A) in AY 2008-09 in assessee's own case
                which was accepted by her also.

                (g) Assessment can't be reopened when there are
                two possible views of declaring income or merely on
                change of opinion.

                (h) Clause (b) to the explanation 11 of section 147
                can be applied when there is under statement of
                income while she herself allowed the appeal on
                merits as there was no understatement.

6.   The grounds raised by the Assessee in the Cross Objection for
the asstt. year 2007-08 read as under:-

          1.    That the CIT (A) has erred in law as well as on facts

          in justifying the reopening of the assessment because

          she failed to appreciate that:

          (a) AO has no reason to believe that assesse is engaged
          in the business of sale and purchase transactions of
          paintings.

          (b) AO had no fresh material on record, which led him to
          believe for reopening the assessment as provided u/s 147
          even if the same was completed U/S 143 (1) of the IT Act,
          1961.

          (c) The paintings were kept as personal affect which were
          treated as capital asset w.e.f. 01.04.2008 only but not in
          earlier years.



                                  7
                                          ITA NOS. 4139/DEL/2011 & 4188 & 4189/Del/2013
                                                        AND CO NOS. 158 & 159/DEL/2014


             (d) There was no escaped income as all the receipts were
             duly been declared being received through a/c payee
             cheques in the bank statements.

             (e) Assessee has not kept paintings as stock-in-trade or
             maintained    any   books    of    account         for      claiming
             expenditure against any such business.

             (f)   View of the assessee was held to be justified by the
             CIT (A) in AY 2008-09 in assessee's own case which was
             accepted by her also.

             (g) Assessment can't be reopened when there are two

             possible views of declaring income or merely on change

             of opinion.

             (h) Clause (b) to the explanation 11 of section 147 can be

             applied when there is under statement of income while

             she herself allowed the appeal on merits as there was no

             understatement."

REVENUE`S APPEALS (Asstt. years 2006-07 to 2007-08)

7.   The facts of the case are not in dispute by both the parties,
therefore, need not repeated here for the sake of convenience.

8.   Against the     assesment order, the Assessee appealed before
the Ld. First Appellate Authority who vide impugned order has held
as under:-

                   "In view of the above discussion, I hold that in the
                   year under consideration the paintings sold were
                   personal effect of the assessee and they are not
                                     8
                                           ITA NOS. 4139/DEL/2011 & 4188 & 4189/Del/2013
                                                         AND CO NOS. 158 & 159/DEL/2014


                  liable to tax under the provisions of the Income Tax,
                  1961 as prevalent in this assessment year under
                  consideration.   This ground of appeal is allowed.
                  The appellant gets a relief of Rs. 1,14,75,500/-."

9.    Against the aforesaid order passed by the Ld. First Appellate
Authority, the Revenue is in appeal before us.

10.   Ld. Counsel of the assessee filed a paper book                   containing
pages 1 to 125 having the assessment records and copies of
various decisions of the Hon'ble High Court and Hon'ble Supreme
Court of India.    At the time of hearing, Ld. Counsel of the assessee
stated that the issue in dispute has been squarely covered in favour
of the assessee by the decision of the Hon'ble Jurisdictional                   High
Court in the case of Faiz Murtaza Ali vs. Commissioner of Income Tax
[2014] (360 ITR 200) {Delhi} and he requested the same may be
followed in the present case also.

10.1 On the contrary, Ld. DR relied upon the orders of the lower
authorities.

11.   We have heard both the counsel and perused the relevant
records, the paper book filed by the ld. Counsel of the assessee
and especially the orders passed by the               Revenue authorities
alongwith the judgment of the Hon'ble Jurisdictional High Court's in
the case of Faiz Murtaza Ali vs. Commissioner of Income Tax (360
ITR 200) (Supra). We find that the Hon'ble High Court of Delhi in
the aforesaid case has held as under:-

                  "If articles fall within the expression "personal
                  effects" they    are not to be included as part of
                  capital assets. Now, the expression "personal
                  effects" has been defined as movable property


                                     9
                        ITA NOS. 4139/DEL/2011 & 4188 & 4189/Del/2013
                                      AND CO NOS. 158 & 159/DEL/2014


(including   wearing   apparel      and       furniture,        bu
excluding jewellery) held for personal use by the
assessee or any member of his family dependent on
him. Section 2(14) of the Income Tax Act, 1961, was
amended with effect from April 1, 2008. With effect
from April 1, 2008, even paintings, sculptures,
works of art, archeological collections and drawings,
in addition to. jewellery, have been excluded from
the expression "personal effects".

In the return filed by the assessee far the
assessment year 2002-03 he declared income af Rs.
31,71,656. The Assessing Officer noticed that in the
bank account af the assessee there was a deposit
aggregating to Rs. 39.47 lakhs which according to.
the assessee was the amount realised by him from
the sale af certain "personai effects". According to
him, the sums realised from the sale were exempt
under section 2(14). The assessee explained that he
had received various household items, paintings,
carpets, collector items, furniture items, etc., owned
by his grandfather, father, uncle and aunt. These
movable properties were held for personal use by
the assessee. The Assessing Officer was of the view
that these items could not be treated as personal
effects and were in fact capital assets within the
meaning af section 2(14). The Cam missioner
(Appeals) held that the items sold were articles
meant for personal use and were, therefore,
personal effects. This order was upheld by the
Tribunal. On appeal to. the High Court :

                 10
                                         ITA NOS. 4139/DEL/2011 & 4188 & 4189/Del/2013
                                                       AND CO NOS. 158 & 159/DEL/2014


                 Held, allowing the appeal, that the assessee had
                 been able to show that the articles were inherited or
                 received by him by way of gift. Those articles were
                 movable 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 had been
                 indicated in the affidavit filed by the assessee
                 before the Assessing Officer. No material had been
                 brought out by the Assessing Officer or the Revenue
                 to indicate that the affidavit was false. The
                 amendment af section 2(14) with effect from April
                 1, 2008, was praspective in operation. The assessee
                 was entitled to exemption from tax an the sale af
                 personal effects."

12.   In the background of the aforesaid discussions and precedent
relied upon by the ld. Cousnel of the assessee, we find considerable
cogency in the contention of the Ld. Counsel of the assessee that
the issue in dispute in the present cases have been squarely
covered in favor of the assessee by the decision of the Hon'ble Delhi
High Court in Faiz Murtaza Ali vs. Commissioner of Income Tax [2014]
(360 ITR 200) {Delhi},        therefore, respectfully following the
precedent as aforesaid, we decide the issue in favor of the assessee
and dismiss the appeals of the Revenue relevant to asstt. year 2006-
07 to 2007-08.

Revenue's Appeal (ASSTT. YEAR 2008-09)

13.   Briefly stated facts are that the assessee has             filed original
return of income for the asstt. year 2008-09 on 6.1.2009 disclosing a


                                  11
                                          ITA NOS. 4139/DEL/2011 & 4188 & 4189/Del/2013
                                                        AND CO NOS. 158 & 159/DEL/2014


total income of Rs. 29,17,060/-. During the previous year relevant to
assessment year 2008-09, the assesee has derived income                        from
salary from M/s P. Aryan Art Gallery Pvt. Ltd. (in which assessee has
25% shareholding), income from Short Term Capital Gains and
Income from Long Term Capital Gains on the sale of paintings,
besides income from other sources (interest income).                            The
Assessing Officer, concluded that the capital gains, (including the
long term and short term) shown by the assessee amounting to Rs.
2,56,86,0547/- is treated as the business income of the assessee
derived from the trading of painting and added to his income
accordingly.

14.   Against the Order dated 30.12.2010 passed by the Assessing
Officer u/s. 143(3) of the I.T. Act, assessee appealed before the Ld.
CIT(A), who vide impugned order dated 17.6.2011 has allowed the
appeal of the assessee by holding as under:-

                "On the facts and circumstances of the case,
                income from sale of paintings is required to be
                assessed under the head `Capita Gains', and not as
                income from business.        The Assessing Officer is,
                accordingly, directed to         recomputed the total
                income of the assessee by taking the income from
                sale of paintings under the head Capital Gains. The
                revised two paintings to Osian's by taking the
                indexed cost of acquisition for financial year 1997-
                98 should also be taken into account."

15.   Against the above order dated 17.6.2011 passed by the Ld.
CIT(A), Revenue is in appeal before us.




                                 12
                                                  ITA NOS. 4139/DEL/2011 & 4188 & 4189/Del/2013
                                                                AND CO NOS. 158 & 159/DEL/2014


16.   We have   heard both     the counsel and perused the records.
We find that Ld. CIT(A) has adjudicated the issue in respect of the
asstt. year 2008-09 as under :-

           "I agree with the view taken by the assessee that in the
           present case, the appellant as argued by the Ld. Cousnel
           that in present case, the appellant was not engaged in
           the business of trading of paintings. A letter issued by Mis
           Osian's-Connoisseurs of Art Pvt. Ltd. clearly shows that it
           was addressed to Sh. Pragy Arya. This shows that the
           assessee was not representing himself as a business
           concern but was representing himself in the individual
           capacity as the owner of the paintings and not as a
           painter or as an artist. In the business of trading of
           paintings or any other business, normally trade names
           are used so that business people could treat them as
           businessman. There is no proprietorship concern named
           either which is normally there in the case of individual
           businessman. In the present case, the appellant did not
           maintain any shop or office from where he was displaying
           the paintings. In fact, the paintings were sold either by
           displaying   them      in        the    gallery       of     M/s       Osian's-
           Connoisseurs of Art Pvt. Ltd. or through the company who
           ultimately displayed and sold them for profits declared in
           their hands. This shows that the appellant has brought
           the paintings from his personal assets and sold them
           whenever needed but not traded by him through his
           office or gallery maintained by him. Further, there are
           hardly three to four transactions of sale in a year and
           there is no income declared either of the commission
           earned en the sale of paintings or on account of rental

                                       13
                             ITA NOS. 4139/DEL/2011 & 4188 & 4189/Del/2013
                                           AND CO NOS. 158 & 159/DEL/2014


income of the paintings or any expenditure incurred on
the employees which is a very common feature of
handling any business in this trade. There is no
expenditure claimed for framing or upkeep of the
paintings also which is a normal feature for sale of any
paintings. The appellant has not claimed any such
expenditure even under the head capital gains such as
traveling and conveyance expenses for Mumbai where
these paintings were sold or expenditure incurred for
transferring these painting to Mumbai at Taj Mahal Hotel.
These expenses are bound to happen but the appellant
did not claim them, probably as such expenditure is
disputable under the head income from capital gains. In
case the assessee was engaged in business, there was no
reason for him to deposit the sum earned by him in the
capital gains account either. His action of rectifying his
mistake in calculating the indexed cost wrongly also
shows his intention to declare the profits truly and
correctly.

In my view, the appellant has, thus, rightly shown the
profits and gains on sale of paintings under the head
"Capital Gains".

Moreover, the Assessing Officer is also not correct in
computing the profits under the head income from
business by reducing the indexed cost as against market
price of the paintings on the date when she was having
opinion that they were introduced as stock-in-trade,
specifically in view of the decision of the Hon'ble
Supreme Court discussed earlier. In that case, there
would be hardly any business profits to be taxed. There is
                      14
                             ITA NOS. 4139/DEL/2011 & 4188 & 4189/Del/2013
                                           AND CO NOS. 158 & 159/DEL/2014


no provision under Chapter IV, Part D of the Income-tax
Act dealing with profits and gains of business or
profession, to reduce the indexed cost for calculating the
business profits.

Since I am of the view that the appellant was not
engaged in the business, I do not find any reason to go
into the depth of taking market price of the paintings or
to go into the depth on the date on which the paintings
were introduced in the business as stock in trade.




     Since all the grounds of appeal taken originally or
additionally revolve on the one issue "whether the profits
are required to be assessed under the head Income from
Business or Capital Gains", I do not find it necessary to
dispose them separately and so all these grounds are
disposed of by me collectively by holding that on the
facts and circumstances of the case, income from sale of
paintings is required to be assessed under the head
Capital Gains, and not as Income from Business. The
Assessing Officer is, accordingly, directed to recompute
the total income of the assessee by taking the income
from sale of paintings under the head Capital Gains. The
revised working of the capital gains on sale of two
paintings to Osian's by taking the indexed cost of
acquisition for financial year 1997-98 should also be
taken into account.

It may also be mentioend here that during the coufrse of
the appeal, a report dated 18.05.2011 was received from
the Assessing Officer enclosing therewith an. affidavit
from the appellant's father submitted during the course

                      15
                                        ITA NOS. 4139/DEL/2011 & 4188 & 4189/Del/2013
                                                      AND CO NOS. 158 & 159/DEL/2014


           of the reassessment proceedings for AY 2006-07 and AY
           2007-08 in the case of the assessee. In brief, it has been
           pointed out by the Assessing Officer that the paintings
           sold in the AY 2008-09 do not appear in the affidavit and,
           therefore, they are not ancestral. It has, however, been
           submitted by the Ld. Counsel of the appellant in this
           regard that the aforesaid affidavit was given specifically
           for the purposes of the reassessment proceedings for the
           AY 2006-07 and AY 2007-08 and so it contains only the
           list of seven paintings pertaining to those two years and
           naturally does not mention anything about the paintings
           pertaining to the year under consideration, i.e., AY 2008-
           09. On examination of the facts of the case, the
           submissions are found to be in order. No further
           comments are, therefore, called for in the matter."

17.   In view of the aforesaid elaborate discussions made by the Ld.

CIT(A), we find that the order of the Ld. CIT(A) is a well reasoned

order which does not need any interference on our part, hence, we

uphold the same and accordingly, dismiss the appeal of the

Revenue.


ASSESSEE'S CROSS OBJECTIONS

18.   Since the appeals filed by the Revenue have been dismissed

by us as aforesaid, therefore, both the cross objections filed by the

Assessee have become infructuous and dismissed as such.


19.   In the result, the three appeals filed by the Revenue and Two

cross objections filed by the Assessee stand dismissed.

                                 16
                                      ITA NOS. 4139/DEL/2011 & 4188 & 4189/Del/2013
                                                    AND CO NOS. 158 & 159/DEL/2014


      Order pronounced in the Open Court on 30/10/2014.




      Sd/-                                                  Sd/-

[J.S. REDDY]                                    [H.S. SIDHU]
ACCOUNTANT MEMBER                          JUDICIAL MEMBER

Date 30/10/2014
"SRBHATNAGAR"




Copy forwarded to: -
1.    Appellant -

2.    Respondent -
3.    CIT
4.    CIT (A)
5.    DR, ITAT


                          TRUE COPY
                                                    By Order,




                                                   Assistant Registrar,
                                                   ITAT, Delhi Benches




                                17
     ITA NOS. 4139/DEL/2011 & 4188 & 4189/Del/2013
                   AND CO NOS. 158 & 159/DEL/2014




18

 
 
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