ACIT, New Delhi V. Sh. Uday Jain, New Delhi

ITA 769/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65980 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 25-10-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 15-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GUNJAN PRAS
• Assessee Lawyers: VED JAIN MISS RANO JA IN; VENKETESH CHOURAS
• Keywords: Capital asset; Gift; Business income; Income from undisclosed sources; Additional evidence; Corroborative evidences; Assessment record
• Section: 2(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H: NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A.NO.769/DEL/2012 ASSESSMENT YEAR : 2007-08 ASSTT. COMMISSIONER OF INCOME-TAX, SHRI UDAY JAIN, CIRCLE-31(1), NEW DELHI. VS. PROP. M/S. DHOOMIMAL GALLERY, A-8, CONNAUGHT PLACE, NEW DELHI. PAN: ADCPJ9276A. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI GUNJAN PRAS AD, CIT(DR). RESPONDENT BY : SHRI VED JAIN, MIS S RANO JAIN AND SHRI VENKETESH CHOURASIA, CAS. O R D E R PER DIVA SINGH, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 23 RD NOVEMBER, 2011 OF THE COMMISSIONER OF INCOME-TAX ( APPEALS)-XXVI, DELHI PERTAINING TO THE ASSESSMENT YEAR 2007-08 ON THE FOLLOWING GROUNDS:- (A) WHETHER LD. CIT(A) WAS RIGHT IN HOLDING THAT A PPELLANT WAS HAVING COLLECTION OF PERSONAL PAINTINGS AND WAS IN POSSESSION OF THE SAME WHEN THESE WERE SOLD FROM WH ICH HE HAS SHOWN CONSIDERATION OF RS.2,42,10,000/- MERELY RELY ING UPON THE FACT THAT ASSESSEE HAS RECEIVED PAYMENT IN CHEQ UE AND THE SAME FOUND TO BE RECORDED IN THE BOOKS OF THE ASSES SEE IGNORING VARIOUS FACTS BROUGHT ON RECORD BY THE AO AT THE TI ME OF ASSESSMENT PROCEEDINGS? ITA NO.769/DEL/2012 2 (B) WHETHER LD. CIT(A) WAS RIGHT IN DELETING THE AD DITION OF RS.2,42,10,000/- HELD BY THE AO AS INCOME FROM OTHE R SOURCES AND IGNORING THE FACT THAT ASSESSEE COULD NOT SUBST ANTIATE EVEN THE EXISTENCE OF THE PAINTINGS? 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE IN THE YEAR UNDER CONSIDERATION WAS THE SOLE PROPRIETOR OF M/S. DHOOM IMAL GALLERY AND DECLARED AN INCOME OF RS.42,99,870/- BY WAY OF FILI NG HIS RETURN ON 31.10.2007. THE SAME WAS PROCESSED UNDER SEC. 143( 1) ON 30 TH MARCH, 2009 AND SUBSEQUENTLY IT WAS SELECTED FOR SCRUTINY BY WA Y OF ISSUANCE OF NOTICE UNDER SEC. 143(2) DATED 19.09.2008, WHEREIN ALONG W ITH QUESTIONNAIRE ETC. WAS ALSO ISSUED REQUIRING THE ASSESSEE TO EXPLAIN T HE QUERIES. 2.1 THE ASSESSING OFFICER IT IS SEEN TOOK NOTE OF T HE FACT THAT THE ASSESSEE BEING A SOLE PROPRIETOR OF M/S. DHOOMIMAL GALLERY W HICH WAS ENGAGED IN TRADING OF PAINTINGS IN THE YEAR UNDER CONSIDERATIO N DECLARED TOTAL SALES OF RS.2,22,48,357/- ON WHICH A GROSS PROFIT OF RS.81,2 8,703/- WAS DECLARED THEREBY SHOWING A GROSS PROFIT RATE OF 36.53%. HE ALSO OBSERVED THAT IN THE COMPUTATION OF INCOME THE ASSESSEE HAD STATED THAT HE HAD SOLD AWAY CERTAIN PAINTINGS DURING THE YEAR AND THE INCOME EARNED ON SALE OF THESE PAINTINGS WAS NOT DECLARED SINCE THESE WERE PERSONAL ASSETS A ND WERE NOT IN THE NATURE OF CAPITAL ASSETS U/S 2(14) OF THE ACT. THE DETAIL S OF THESE AS SET OUT IN THE ASSESSMENT ORDER AS UNDER:- ITA NO.769/DEL/2012 3 1 PAINTING OF SWAMI NATHAN RS.2,15,00,000/- 5 PAINTINGS OF F.N. SOUZA RS. 23,00,000/- 3 PAINTINGS OF SOHAN QUADRI RS. 50,000/- 2 PAINTINGS OF JAI RAM PATEL RS. 60,000/- 2 PAINTINGS OF H.A. GADE RS. 3,00,000/- 13 PAINTINGS RS.2,42,10,000/- 2.2 IN ORDER TO UNDERSTAND THE CORRECT NATURE OF TH IS CLAIM THE ASSESSING OFFICER ISSUED A DETAILED QUESTIONNAIRE DATED 16.11 .2009 WHEREIN CERTAIN INFORMATION WAS SOUGHT VIDE QUERY NO.6. THE SAME I S QUOTED IN THE ASSESSMENT ORDER ITSELF AT PAGE 1 AND READS AS UNDE R:- IN COMPUTATION OF INCOME YOU HAVE SHOWN SALE OF 1 PAINTING OF SWAWMI NATHAN FOR RS.2,15,00,000/-, 5 PAINTINGS OF F.N. SOUZA FOR RS.23 LACS. 3 PAINTING S OF SOHAN QUADRI FOR RS.50,000/-, 2 PAINTINGS OF JAI RA M PATEL FOR RS.60,000/- AND 2 PAINTINGS OF H.A. GADE FOR RS.3 LACS OUT OF YOUR PERSONAL COLLECTION AND THE I NCOME EARNED FROM SALE OF THESE PAINTINGS HAS NOT BEEN OF FERED FOR TAXATION ON THE GROUND THAT THESE WERE PERSONAL EFFECT U/S 2(14). IN THIS REGARD, YOU ARE REQUIRED TO FUR NISH THE FOLLOWING DETAILS AND INFORMATION IN RESPECT OF ALL THESE PAINTINGS:- (A) DATE OF PURCHASE, EVIDENCES OF PURCHASE NAME A ND ADDRESS OF THE PERSONS FROM WHOM THE SAME HAS BEEN PURCHASED, COST OF PURCHASE, MODE OF PAYMENT, DATES OF PAYMENT, PARTICULARS OF CHEQUE THROUGH WHICH PAYMEN TS MADE FOR PURCHASE AND COPY OF THE BANK STATEMENT FR OM WHERE PAYMENT HAS BEEN MADE. IN CASE OF CASH PAYMEN T, THE SOURCE OF CASH PAYMENT AND CONFIRMATION FROM TH E PERSONS FROM WHOM THE SAME HAS BEEN CLAIMED TO HAVE BEEN PURCHASED. (B) PERIOD OF HOLDING OF ALL THESE PAINTINGS SEPAR ATELY WITH YOU. ITA NO.769/DEL/2012 4 (C) TO ADDUCE EVIDENCE OF ACTUAL AND PHYSICAL POSSESSION OF THESE PAINTINGS AND THE EVIDENCE TO SUBSTANTIATE THAT THESE WERE PERSONAL EFFECTS SPECI ALLY KEEPING IN VIEW THE FACT THAT YOU ARE RUNNING BUSIN ESS OF ART GALLERY WHEREIN PAINTINGS ARE SOLD AND IT IS DE CLARED AS A BUSINESS INCOME. (E) THE DATE OF SALE, EACH PAINTING WISE SALE CONSIDERATION RECEIVED, NAME AND ADDRESS OF THE PERSON(S) TO WHOM THE SAME HAS BEEN RECEIVED, DATE WISE DETAILS OF RECEIPT OF SALE CONSIDERATION, PAINTING WISE, COPY OF YOUR BANK ACCOUNT WHERE THESE SALE PROCEEDS HAVE BEEN CREDITED. (E) WHETHER ANY MEDIATOR WAS INVOLVED, IF YES, HIS NAME AND ADDRESS AND WHETHER ANY COMMISSION PAID TO HIM. 2.3 A PERUSAL OF THE ASSESSMENT ORDER FURTHER SHOWS THAT THE ASSESSEE VIDE ITS REPLY DATED 4.12.2009 STATED THAT THE ASSESSEE S ANCESTORS HAVE BEEN A RENOWNED COLLECTORS OF PAINTINGS FROM PRE-INDEPENDE NCE ERA AND THE ASSESSEE BEING THE ONLY SON OF SHRI RAVI JAIN, INHERITED ALL THE PAINTINGS, DRAWINGS AND SCULPTURES FROM HIS FATHER. IT IS FURTHER STAT ED THAT THE ASSESSEES FATHER DIED AS A RESULT OF SUDDEN HEART ATTACK AND THERE W AS NO TIME TO TAKE THE EVIDENCE ON RECORD FOR THE PURCHASE OF PERSONAL PAI NTINGS. THE ASSESSEES FATHERS DECLARATION WRITTEN ON THE OPERATION TABLE ON THE HOSPITAL STATIONERY WAS RELIED UPON. THE SAME IS DATED 16 TH JULY, 1991 AND IS REPRODUCED FROM THE ASSESSMENT ORDER FOR READY REFERENCE AS UNDER:- IF GOD FORBIDS AND I DIE ON TODAYS OPERATION EVER Y THING AND, ALL MY ASSETS AND EVERYTHING BELONG TO SHRIMAT I UMA DEVI ITA NO.769/DEL/2012 5 JAIN AN UDAY JAIN EXCLUSIVELY AND NO OTHER CLAIMANT SHOULD CLAIM ANYTHING FROM IT. THANKS SD/- 16.07.91 2.4 THE AO FURTHER OBSERVED THAT THE ASSESSEE IS CL AIMING THAT HE HAS INHERITED THE PAINTINGS FROM HIS FATHER AND PRIOR T O A.Y. 2000-01 HIS AFFAIRS WERE BEING TAKEN CARE OF BY HIS MOTHER AS HE WAS A MINOR. THE ASSESSEE FURTHER FILED A LIST OF PERSONAL PAINTINGS, PHOTO C OPY OF WHICH WAS ATTACHED AS ANNEXURE `B WITH ASSESSMENT ORDER. ON A PERUSAL O F THE SAME IT WAS NOTICED THAT THE PERSONAL PAINTINGS AS PER THE SAID LIST AS ON 1.04.2006 WERE 1149 IN NUMBER, OUT OF WHICH A TOTAL NUMBER OF 13 P AINTINGS HAD BEEN SHOWN AS SOLD IN THE YEAR UNDER CONSIDERATION AND THE CLO SING BALANCE OF PAINTINGS AS ON 31-03-2007 WAS SHOWN AS 1136 IN NUMBER. 2.5 IT WAS URGED BEFORE THE AO THAT NO RECORDS OF B ILLS AND PAYMENTS HAVE BEEN KEPT, IT WAS FURTHER CLAIMED THAT THE DETAILS OF THESE PAINTINGS ARE WITH THE DEPARTMENT SINCE THE LAST 8 TO 10 YEARS. THUS THIS WAS SUFFICIENT EVIDENCE TO PROVE THAT THESE WERE OLD PAINTINGS WHI CH HAVE BEEN RECEIVED FROM THE FATHER. IN REGARD TO THE PROPRIETARY BUSI NESS WHEREIN THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF TRADING OF PAINTINGS , IT WAS CLAIMED THAT THAT THE SEPARATE STOCK INVENTORY WAS MAINTAINED FOR THE STOCK OF PAINTINGS ITA NO.769/DEL/2012 6 BELONGING TO THE FIRM AND BEFORE 2006 NO PERSONAL P AINTINGS WERE SOLD SINCE THERE WAS NO NEED OF FUNDS. 2.6 HOWEVER, NOT CONVINCED WITH THE EXPLANATION OF THE ASSESSEE AND HOLDING THE SAME TO BE A GENERALIZED STATEMENT, THE AO WAS OF THE VIEW THAT THE RELEVANT INFORMATION AND DETAILS SPECIFICALLY C ALLED FOR WERE NOT PROVIDED. AS SUCH THE CONCLUSION DRAWN BY THE AO T HAT THE CLAIM OF THE ASSESSEE THAT THESE 13 PAINTINGS WERE PERSONAL ASSE TS OF THE ASSESSEE AND NOT TAXABLE, WAS FOUND TO BE DEVOID OF MERIT AS THE DET AILS WHICH WERE CALLED FOR WERE NOT PROVIDED. THE SAME ARE REPRODUCED IN THE ASSESSMENT ORDER AT PAGE 3 AND REPRODUCED HEREUNDER:- A. THE DATE OF PURCHASE, EVIDENCE OF PURCHASE, NAM E AND ADDRESS OF THE PERSON FROM WHOM THE SAME HAS BE EN PURCHASED, COST OF PURCHASE, MODE OF PAYMENT, DATE OF PAYMENT, PARTICULARS OF CHEQUE THROUGH WHICH PAYMEN TS MADE FOR PURCHASE: COPY OF BANK ALE'S, IN CASE OF C ASH PAYMENT, THE SOURCE OF CASH PAYMENT AND CONFIRMATIO NS FROM THE PERSON FROM WHOM THE SAME HAS BEEN PURCHAS ED HAS NOT BEEN FURNISHED EXCEPT THAT - OUT OF TOTAL 13 PAINTINGS SOLD, A CHART HAS BEEN FILED SHOWING SOME DETAILS OF SALE OF ONLY 6 PAINTI NGS (PHOTOCOPY. ATTACHED AS ANNEXURE - C, TO THIS ORDER ) - ONE LETTER DATED 01.12.09 HAS BEEN FILED PURPORTED TO BE SIGNED BY SOME S. HARSHA VARDHNA, STATING THA T LATE SH J. SWAMINATHAN WAS HIS FATHER AND HE SOLD 1 PAINTING DURING HIS LIFETIME TO LATE SH. RAVI JAIN. A PHOTOGRAPH OF SOME PAINTING IS ALSO FILED ALONG WIT H THIS LETTER (PHOTOCOPY OF PHOTOGRAPH AND THIS LETTER ATT ACHED AS ANNEXURE- D & E TO THIS ORDER). ITA NO.769/DEL/2012 7 B. NO EVIDENCE HAS BEEN FILED PROVING THE ACTUAL AND PHYSICAL POSSESSION OF THESE PAINTINGS WITH THE ASSESSEE FOR SUCH A LONG TIME. NO EVIDENCE HAS BEEN FILED TO SUBSTANTIATE THAT THESE WERE IN THE NATURE OF PERSONAL EFFECTS. C. NO REPLY HAS BEEN GIVEN TO THE QUERY AS TO WHETHER ANY MEDIATOR WAS INVOLVED AND IF YES HIS NAME AND ADDRESS AND DETAILS OF COMMISSION PAID TO HIM. 2.7 THE REASONS FOR NOT ACCEPTING THE CLAIM OF THE ASSESSEE AS SET OUT IN THE ASSESSMENT ORDER WHICH FOUND DISCUSSED AT PAGE 3, 4 & 5 ARE AS UNDER:- A. THE ASSESSEE HAS NOT BEEN ABLE TO PROVE THAT THESE PAINTINGS WERE THE PERSONAL EFFECTS AND PURCHASED BY HIS FATHER AND HE INHERITED THE SAME ON THE DEATH OF HIS FATHER. THE ASSESSEE HAS FILED COPY OF ONE ALLEGED DYING DECLARATION GIVEN BY HIS FATHER. NOW, ON EXAMINING THE SAID DECLARATION, MANY INTERESTING THINGS ARE NOTABLE. IN THE LETTER FILED ON 04.12.09, THE ASSESSEE HAS SPECIFICALLY STATED THAT HIS FATHER DIED SUDDENLY DUE TO HEART ATTACK AND THERE WAS NO TIME TO TAKEOVER THE EVIDENCE AND RECORDS FOR PURCHASE OF PERSONAL PAINTINGS. HOWEVER, ON READING THE CONTENTS OF DYING DECLARATION, IT STATES THAT HE IS TO BE OPERATED TODAY AND BEFORE THAT HE WAS GIVING THAT DECLARATION. THUS, THESE 2 THINGS RUN IN CONTRADICTION TO EACH OTHER. IN CASE OF SUDDEN DEATH DUE TO HEART ATTACK, AS CLAIMED BY THE ASSESSEE, THERE COULD NOT HAVE BEEN ANY OCCASION FOR WRITING ANY DECLARATION AND FOR ANY OPERATION. SECONDLY, THE KIND OF WRITING AND THE KIND OF LANGUAGE CLEARLY SHOWS THAT IT CANNOT BE OF A PERSON WHO IS ON THE DEATH BED. THIRDLY, IT IS INTERESTING TO NOTE THAT IN THE SAID DECLARATION, THERE IS NOT EVEN A SMALLEST WHISPER REGARDING ANY BUNCH OF PAINTINGS POSSESSED BY HIM. IT IS ONLY A GENERAL ITA NO.769/DEL/2012 8 STATEMENT. FOURTHLY, THE AUTHENTICITY AND THE GENUINITY OF THIS STATEMENT STANDS TOTALLY UNPROVED BY NOT BRINGING ANY MATERIAL ON RECORD. FOR MATCHING THE SIGNATURES AND THE HANDWRITING, THE ASSESSEE WAS ASKED TO BRING ON RECORD SOME DOCUMENT CONTAINING HIS SIGNATURES, THE ASSESSEE PRODUCED ORIGINAL OF INVOICE NO. 702 OF M/S DHOOMIMAL GALLERY DATED 14.05.87 FOR VERIFICATION, A PHOTOCOPY OF WHICH IS PLACED ON RECORD ( A PHOTOCOPY ATTACHED AS ANNEXURE - F TO THIS ORDER), (THE ASSESSEE IS DIRECTED TO RETAIN THE ORIGINAL THEREOF WITH HIM FOR FUTURE REFERENCE). ON MATCHING THE SIGNATURES ON THIS DOCUMENT DATED 14.05.87 WITH THE ALLEGED DYING DECLARATION, IT IS NOTICEABLE EVEN FROM THE NAKED EYE THAT THE SIGNATURES ARE ENTIRELY DIFFERENT AND MIS- MATCHES, FURTHER THE FLOW OF HANDWRITING IN THE NORMAL SIGNATURES IS VERY CLEAR WHILE IN THE PURPORTED SIGNATURES IT IS A BROKEN FLOW. ONE MORE INTERESTING FEATURE OF THIS ALLEGED DECLARATION IS THAT, THE AUTHOR OF THIS DECLARATION REFERS TO HIS WIFE AS 'SHREMATE UMA JAIN' AND TO HIS SON AS 'UDAY JAIN'. HAD IT BEEN WRITTEN IN THE NORMAL COURSE BY LATE SH. RAVI JAIN, HE WOULD HAD WRITTEN AS MY WIFE AND MY SON. ANOTHER INTERESTING ASPECT IS THAT WHILE WRITING 'SHREMATE UMA JAIN' HE HAS WRITTEN THIS AS 'SHREMATE UMA DEVI JAIN'. NOW, THE NAME OF HIS WIFE IS UMA JAIN AND NOT UMA DEVI JAIN, THEREFORE, UNDER WHATEVER MAY BE THE CIRCUMSTANCE, NO PERSON WOULD FIRST WRITE WRONG NAME OF HIS WIFE AND THEN WOULD DELETE THE INCORRECT PORTION THEREFROM. THUS, ALL THE ABOVE ASPECTS SPEAKS FOR ITSELF THAT IT IS A FABRICATED DOCUMENT AND CANNOT BE RELIED UPON. FURTHER, OTHERWISE ALSO THE CONTENTS OF THIS DOCUMENT NO WHERE PROVES THAT THERE EXISTED PAINTINGS WHICH WERE INHERITED BY THE ASSESSEE. ITA NO.769/DEL/2012 9 THUS, THIS ISSUE HAS TO BE EXAMINED FURTHER BY TOTALLY IGNORING THIS FORGED DOCUMENT. B. NOW, ON EXAMINING THE CERTIFICATE GIVEN BY ONE SH. S. HARSHA VARDHNA AND COPY OF ONE PHOTOGRAPH OF ONE PAINTING, MANY INTERESTING ISSUES STANDS NOTICED, FIRSTLY, THE IDENTITY OF S. HARSH VARDHNA REMAINS UH-ESTABLISHED, THE CLAIM THAT LATESH. J. SWAMINATHAN WAS HIS FATHER REMAINS UNPROVED, THE GENUINITY OF THIS DOCUMENT REMAINS UN-PROVED. THIS CERTIFICATE SIMPLY STATES THAT HIS FATHER J. SWAMINATHAN SOLD 1 PAINTING AS EVIDENCED IN THE PHOTOGRAPH TO LATE SH. RAVI JAIN, SIMPLY STATES FOR SELLING OF SOME PAINTING BUT THE MOOT ISSUE THAT IT WAS THIS PAINTING WHICH HAS BEEN SOLD AWAY BY THE ASSESSEE AT RS 2.15 CR REMAINS UN-PROVED. EVEN ON PRESUMING THIS TO BE THAT PAINTING, EVEN THEN IT REMAINS UN-PROVED THAT IT WAS THIS PAINTING WHICH WAS SOLD FOR RS. 2.15 CR. THUS, THIS CERTIFICATE AND A PHOTOGRAPH OF A PAINTING DOES NOT PROVE THE CASE OF THE ASSESSEE THAT THE PAINTING SOLD FOR RS. 2.15 CR IS THE SAME PAINTING. THUS, THESE 2 DOCUMENTS DOES NOT, IN ANYWAY, SUPPORT THE CASE OF THE ASSESSEE. C. THE ASSESSEE SOLD TOTAL 13 PAINTINGS FOR RS. 2,42,10,0001- CLAIMED TO BE IN THE NATURE OF PERSONAL ASSETS AND NOT ASSESSABLE AS CAPITAL GAIN. THE ASSESSEE DID NOT FILE THE RELEVANT INFORMATION AS ASKED FOR VIDE ABOVE QUOTED QUESTIONNAIRE DATED 16.11.2009 WITH REFERENCE TO DETAILS AND PARTICULARS OF PURCHASES THE ASSESSEE HAS FILED ONE SHEET SHOWING ONLY DETAILS FOR SALE OF 6 PAINTING OUT OF TOTAL 13 PAINTINGS THE SALE PRICE OF THESE 6 PAINTINGS HAS BEEN SHOWN ONLY RS. 16 LACS OUT OF TOTAL SALES OF RS.2,42,10000/- THUS, THE SALES SHOWN TO THE EXTENT OF RS. 2,26,10,0001- REMAINS ABSOLUTELY UN-DETAILED AS ALSO DISCUSSED ABOVE ITA NO.769/DEL/2012 10 INCLUDING THE SALE OF PAINTING FOR RS. 2.15,00,0001- NOW, ON EXAMINING THE DETAILS, IT HAS BEEN NOTICED THAT NO ADDRESSES HAVE BEEN GIVEN IN 3 CASES NO EVIDENCE OF SALE HAS BEEN FILED AS WELL AS NO CONFIRMATIONS WERE FILED. IT IS TO BE REMEMBERED THAT IF THE ASSESSEE CLAIMS SOME RECEIPTS TO BE OF NON - TAXABLE NATURE, THE ONUS SQUARELY REMAINS ON THE ASSESSEE TO SUBSTANTIATE HIS CLAIM BY ADDUCING COGENT EVIDENCES FOR THE SAME. IN THIS CASE, EVEN ON SPECIFICALLY ASKING. THE ASSESSEE HAS NOT FURNISHED THE BASIC DETAILS SPECIFICALLY ASKED FOR TO EXAMINE THIS ISSUE. THUS, EVEN THE INCOMPLETE DETAILS OF THE BUYERS, AS FILED BY THE ASSESSEE DOES NOT LEAD ANYWHERE TO SUPPORT HIS CONTENTION. D. FURTHER, THE ASSESSEE CLAIMS THAT THE LIST OF THESE PAINTINGS STOOD FILED IN EARLIER YEARS. HOWEVER, THIS CONTENTION OF THE ASSESSEE DOES NOT CHANGE THE SITUATION. FIRSTLY, THE ASSESSEE HAS NOT PROVED HIS THIS CONTENTION TO BE TRUE AS NO EVIDENCE HAS BEEN FILED TO PROVE THE SAME. EVEN FOR ARGUMENT SAKE, PRESUMING THIS CONTENTION AS TRUE ALSO, MERELY FILING OF SOME DOCUMENT WITH THE RETURN DOES NOT MEAN THAT THE CORRECTNESS OF CLAIM MADE BY VIRTUE OF SAID DOCUMENT STANDS ESTABLISHED AND ACCEPTED BY THE DEPARTMENT THE ISSUE REMAINS THAT THE EXISTENCE OF THESE PAINTINGS AND THEN GETTING THESE PAINTINGS BY THE ASSESSEE AFTER THE DEATH OF HIS FATHER REMAINS TOTALLY UNSUBSTANTIATED. E. IT IS FURTHER VERY MATERIAL TO NOTE THE NUMBER OF PAINTINGS, THE ASSESSEE CLAIMED TO POSSESS, IN THE NATURE OF PERSONAL ASSETS. AS PER THE DETAILS FILED BY THE ASSESSEE HIMSELF, HE CLAIMS TO HAVE 1149 NOS. OF SUCH PAINTING AS ON 01.04.2006, OUT OF WHICH HE CLAIMS TO HAVE SOLD 13 PAINTINGS, THUS, STILL IN POSSESSION OF 1136 NOS. ITA NO.769/DEL/2012 11 OF PAINTINGS. THE ASSESSEE HAS BEEN INTO BUSINESS OF SALE PURCHASE OF PAINTINGS. TO CLAIM 1149 NOS. OF PAINTINGS IN THE NATURE OF PERSONAL ASSETS CANNOT BE TRUE. THE PERSONAL ASSETS AND THE PERSONAL EFFECTS REFERS TO SUCH ASSETS WHICH ARE KEPT AND MAINTAINED BY ANYONE FOR PERSONAL USE AND PERSONAL ENJOYMENT. IT CAN BE VERY WELL UNDERSTOOD THAT MANY HUNDREDS OF PAINTINGS CAN NEVER BE CONSIDERED AS IN THE NATURE OF PERSONAL EFFECTS. THIS FINDING BECOMES MORE RELEVANT AND MEANINGFUL IN THE CASE OF THE ASSESSEE AS HE IS IN THE BUSINESS OF TRADING OF PAINTINGS. 2.8 ACCORDINGLY ON THE ABOVE REASONING IT WAS CONCL UDED THAT THE CLAIM OF THE ASSESSEE THAT HE SOLD 13 PAINTINGS OUT OF HIS P ERSONAL PAINTINGS REMAINED UNSUBSTANTIATED AND THE RECEIPT OF THE SAME CONSEQU ENTLY WAS ADDED AS INCOME FROM UNDISCLOSED SOURCES UNDER THE HEAD INC OME FROM OTHER SOURCES. 3. AGGRIEVED BY THIS, THE ASSESSEE WENT IN APPEAL B EFORE THE CIT(A). BEFORE THE CIT(A) THE ARGUMENTS ADVANCED BEFORE THE AO WERE REITERATED. IT WAS EMPHASIZED THAT THE AO HAS COMPLETELY IGNORE D THE FACT THAT THE ASSESSEE IS FROM A FAMILY OF RENOWNED COLLECTOR OF PAINTINGS FROM PRE- INDEPENDENCE ERA AND IS WELL-KNOWN ACROSS THE GLOBE . THE ASSESSEE IS, IT WAS STATED BEING THE ONLY SON OF LATE SHRI RAVINDER JAIN (RAVI JAIN) HAS THUS INHERITED ALL THE PAINTINGS, DRAWINGS AND SCULPTURE S FROM HIS FATHER AND THIS FACT WAS SUPPORTED BY THE DECLARATION MADE BY HIS L ATE FATHER ON THE ITA NO.769/DEL/2012 12 OPERATION TABLE OF THE HOSPITAL WRITTEN ON THE HOSP ITAL STATIONERY AND SINCE DHOOMIMAL GALLERY WHICH WAS RUN AS BUSINESS UNIT AN D ALL THE PAINTINGS BELONGING TO THE BUSINESS WERE DULY RECORDED IN THE BOOKS OF ACCOUNTS OF DHOOMIMAL GALLERY AND WERE FORMING PART OF STOCK IN TRADE OF THE BUSINESS. THE AO HAS IGNORED THAT THE ASSESSEE HAS BEEN REGUL ARLY FILING THE DETAILS OF OPENING AND CLOSING INVENTORY OF PAINTINGS ALONG WI TH THE TAX AUDIT REPORT IN FORM 3CD FOR MANY YEARS AND THE DETAILS OF PERSO NAL PAINTINGS OF HIS FATHER SHRI RAVINDER JAIN (RAVI JAIN) THAT WERE INH ERITED BY THE ASSESSEE WERE ALSO BEING FILED ALONG WITH THE RETURN OF INCO ME. THUS, IN VIEW OF THE FACT THAT THE PAINTINGS WERE VERY OLD AND INHERITED FROM FOREFATHERS, NO SEPARATE RECORDS FOR PURCHASE OF THESE PAINTINGS HA D BEEN KEPT. THE AO HAS IGNORED THE FACT THAT IN EARLIER TIMES THE PAINTING S WERE NOT THAT COSTLY AND WERE EASILY AVAILABLE IN THE RANGE OF RS.100/- TO R S.5000/- AND IN THE CASE OF THOSE PAINTERS WHO ACQUIRED NAME, THE VALUE OF THEI R PAINTINGS ROSE TREMENDOUSLY SO MUCH THAT IT FETCHED LAKHS/CRORES T ODAY. REFERRING TO THE PAINTINGS IN POSSESSION, IT WAS SUBMITTED THAT THE POSSESSION IS SUPPORTED BY THE LIST OF THESE PAINTINGS WHICH WAS CONSISTENTLY BEING FILED WITH THE DEPARTMENT FOR THE LAST SO MANY YEARS. THUS THE RE CORD OF THE POSSESSION OF THESE PAINTINGS IS ALREADY WITH THE DEPARTMENT AND THE LIST OF PAINTINGS AS BUSINESS INVENTORY WAS SEPARATELY BEING FILED ALONG WITH FORM 3CD REPORTS ITA NO.769/DEL/2012 13 FOR THE LAST SO MANY YEARS TO DIFFERENTIATE THOSE P AINTINGS FROM THE PERSONAL PAINTINGS. ON ACCOUNT OF PECULIAR FACT THAT THE PA INTINGS WERE INHERITED FROM HIS FATHER AFTER HIS DEATH, AS SUCH THERE WAS NO EV IDENCE OF PURCHASE BY THE ASSESSEE AS NO PAYMENT FOR ACQUIRING THESE PAINTING S HAD BEEN MADE AND ALL THESE PAINTINGS WERE ACQUIRED BY THE GRAND-FATHER O R FATHER OF THE ASSESSEE BEFORE 1991. THE DETAILS OF ALL SUCH PAINTINGS HAV E BEEN REGULARLY DECLARED BEFORE THE INCOME-TAX DEPARTMENT FOR THE LAST MANY YEARS. IT WAS AGAIN EMPHASIZED THAT FROM THE RECORDS IT WOULD BE EVIDEN T THAT BEFORE 2006 NO PERSONAL PAINTINGS WERE SOLD BY THE ASSESSEE OR BY HIS FAMILY AND IT IS ONLY WHEN THE ASSESSEE AND HIS FAMILY WENT IN FOR THE CO NSTRUCTION OF A RESIDENTIAL PROPERTY FOR THEMSELVES THAT THEY HAD THE NEED FOR FUNDS SO THE DECISION WAS TAKEN TO PART WITH SOME OF THEIR PRIZED PERSONAL CO LLECTIONS IN ORDER TO MEET THE COST OF THE PROPERTY. THE OBSERVATIONS OF THE AO QUA THE DECLARATION DATED 16.07.1991 MADE BY THE FATHER OF THE ASSESSEE LATE SHRI RAVINDER JAIN (RAVI JAIN) WERE OBJECTED TO BE UNWARRANTED AS THE DECLARATION MADE DEPENDS UPON THE FRAME OF MIND OF THE DECEASED. ON THE HAND-WRITING IT WAS SUBMITTED THAT THE SIGNATURES ON THE INVOICE COMPAR ED WITH THE WRITING ON THE DECLARATION AND IN CASE THE AO HAD ANY DOUBT, H E SHOULD HAVE REFERRED THE MATTER TO THE HAND-WRITING EXPERT. THE ACTION OF THE AO IN ASSUMING THE ROLE OF HAND-WRITING EXPERT AND THEREBY COMING TO A N ERRONEOUS CONCLUSION ITA NO.769/DEL/2012 14 WAS ASSAILED. IT WAS FURTHER SUBMITTED THAT THE AO HAS FAILED TO APPRECIATE THAT EVEN IF THE SAID DECLARATION IS IGNORED AS A N ATURAL COROLLARY THE PERSONAL ASSETS INCLUDING ART WORK IN QUESTION WOULD HAVE CO ME TO THE ASSESSEE AS BEING THE ONLY SON OF THE DECEASED PERSON. IT WAS ALSO SUBMITTED THAT IN RESPECT OF THE PAINTING OF LATE SHRI J. SWAMINATHAN WHICH WERE SOLD FOR AN AMOUNT OF RS.2,15,00,000/-, A LETTER FROM HIS SON A LONG WITH PHOTOCOPY WERE FILED BEFORE THE AO WHO HAS QUESTIONED THE RELATION SHIP OF SHRI HARSHAVARDHANA SWAMINATHAN CLAIMING TO BE THE SON O F LATE SHRI J. SWAMINATHAN. IT WAS ALSO REFERRED THAT THE AO HAS ALSO IGNORED THE FACT THAT THE PAINTING OF LATE SHRI J. SWAMINATHAN WHICH WAS SOLD WAS IN THE COLLECTION OF ASSESSEES FATHER FOR THE PAST 30 YEA RS AND REGARDING THE SAID PAINTING IT WAS SUBMITTED THAT IT WAS PUBLISHED IN THE NEWSPAPER DINMAN ON 3 RD MARCH, 1976. THE ASSESSMENT ORDER WAS ASSAILED ON THE GROUND THAT THE AO HAS ERRED IN MIXING UP THE TRADE AND PERSONAL EFFECTS. APART FROM VARIOUS ARGUMENTS ADVANCED BEFORE THE AO , THE SUBMISSIONS WERE REITERATED AT LENGTH HAVE BEEN REPRODUCED AT P AGES 7 TO 9 OF THE IMPUGNED ORDER. 3.1 IT WAS ALSO CONTENDED IN THE APPELLATE PROCEEDI NGS THAT THE AO HAD NOT GIVEN AN OPPORTUNITY TO PRODUCE DETAILS AND EVIDENC ES IN SUPPORT OF HIS CLAIM TO THE ASSESSEE QUA THE CLAIM FOR ACQUISITION, POSS ESSION AND SALE AND AFTER ITA NO.769/DEL/2012 15 THE HEARING ON 4.12.2007 THE DETAILS WHICH HAD BEEN SOUGHT EARLIER WERE NEVER ASKED FOR BY THE AO AND THE AO MERELY KEPT IN SISTING ON PROVING THE GENUINENESS OF THE DYING DECLARATION OF THE ASSESSE ES FATHER AS SUCH THERE WAS NO OCCASION TO CALL FOR THE DETAILS NOR WERE TH EY CALLED UPON TO FILE. IT WAS SUBMITTED THAT THESE FACTS AND EVIDENCES WERE F ILED BEFORE THE CIT(A) VIDE LETTER DATED 22.02.2010 AND ANOTHER LETTER DAT ED 24.05.2010. 3.2 A PERUSAL OF THE IMPUGNED ORDER FURTHER SHOWS T HAT FOR JUSTIFYING THE ADMISSION OF ADDITIONAL EVIDENCE THE ASSESSEE EMPHA SIZED THE FACT THAT THROUGHOUT THE ASSESSMENT PROCEEDINGS THE FOCUS OF THE AO WAS ON THE MANNER AND CONTENTS OF THE DYING DECLARATION AND TR YING TO LAY EMPHASIS ON THE FACT THAT THE SIGNATURE WAS FAKE. AS SUCH, THO UGH INITIALLY A QUERY HAD BEEN RAISED IN REGARD TO THE OWNERSHIP OF THE PAINT INGS, HOWEVER THE FOCUS IN THE PROCEEDINGS REMAINED ON THE DYING DECLARATION A ND NO QUESTION WAS ASKED THEREON AND SINCE THE AO APPEARED TO BE SATIS FIED WITH THE EXPLANATION GIVEN QUA THE OWNERSHIP OF THE PAINTINGS AS SUCH IT CAN BE PRESUMED THAT NO FURTHER QUESTION WAS ASKED. THESE FACTS ARE SET OU T AT PAGES 11 & 12 OF THE IMPUGNED ORDER WHEREIN REFERENCE IS MADE TO THE PRO CEEDINGS BEFORE THE AO ON 7 TH DECEMBER, 2009; 23 RD DECEMBER, 2009; 29 TH DECEMBER, 2009. AS SUCH AS PER THE IMPUGNED ORDER THE EFFORT ON THE PA RT OF THE ASSESSEE ALSO REMAINED FOCUSED ON ADDRESSING THE DYING DECLARATIO N. CONSEQUENTLY THE ITA NO.769/DEL/2012 16 ASSESSEE ALSO REPEATEDLY ADDRESSED THE ASPECT THAT THE DYING DECLARATION IS GENUINELY MADE AND SINCE WAS IN EMERGENCY SITUATION ON THE HOSPITAL STATIONERY ITSELF IN THE HANDWRITING OF THE FATHER OF THE ASSESSEE THE WORDING USED CANNOT BE CRITICIZED AS IT WOULD DEPEND ON THE MINDSET OF THE DECLARANT. IN THE CIRCUMSTANCES IT WAS PLEADED THAT THERE WAS NO OCCASION TO LEAD ANY OTHER EVIDENCE AS THE AO FOCUSED HIS ATTENTION ON H IS PRESUMPTION THAT THE SIGNATURE OF SHRI RAVINDER KUMAR JAIN (RAVI JAIN) W AS A FAKE SIGNATURE. 3.3 IN THIS BACKGROUND THE ASSESSEE SOUGHT TO FILE COPY OF THE OPINION OF THE HANDWRITING EXPERT ON THE DYING DECLARATION OF THE ASSESSEES FATHER. VARIOUS OTHER EVIDENCES NAMELY, DETAILS OF ALL PERS ONAL PAINTINGS SOLD BY THE ASSESSEE; PHOTO COPY OF THE NEWSPAPER CLIPPINGS; NE WS LETTER SHOWING THAT THE ASSESSEE BELONGED TO A FAMILY WHICH WAS A COLLE CTOR OF PAINTINGS AND TO SHOW THAT THEY WERE IN POSSESSION OF LARGE NUMBER O F PAINTINGS AS PER ANNEXURE-3; COPIES OF NEWS CLIPPINGS DATED 3 RD MARCH, 1976 IN DINMAN SHOWING THE PAINTING OF J. SWAMINATHAN WHICH WAS FO R RS.215 LAKHS TO SHOW THAT IT WAS IN POSSESSION OF THE FAMILY. THE SAME WAS PRODUCED BEFORE THE CIT(A) IN ANNEXURE-4 ALONG WITH THE NEWSPAPER CUTTI NG IN ORIGINAL. CONFIRMATION FROM ALL THE 8 SELLERS TO WHOM PAINTIN GS WERE SOLD WAS ATTACHED AS ANNEXURE-5 AND COPY OF PASSPORT OF SHRI HARSHAVARDHANA ITA NO.769/DEL/2012 17 SWAMINATHAN, SON OF SHRI J. SWAMINATHAN WAS FILED A S ANNEXURE-6 TO ESTABLISH THAT THE LATTER WAS OF HIS LATE FATHER. 3.4 A PERUSAL OF THE IMPUGNED ORDER FURTHER SHOWS T HAT IN THE ABOVE BACKGROUND THE OBSERVATIONS OF THE AO DO NOT HAVE A NY MERIT AS PAINTINGS IN QUESTION WERE INHERITED BY THE ASSESSEE FROM HIS FA THER AND GRAND FATHER WHO HAD COLLECTED THE SAME DURING THE LONG SPAN OF OVER 50 YEARS FROM 1936 TO 1990. IT WAS EMPHASIZED THAT THE ANCESTRAL FAMILY OF THE ASSESSEE IS A RENOWNED COLLECTOR OF PAINTINGS FROM PRE-INDEPENDEN CE ERA AND THE ASSESSEE IS THE ONLY SON OF LATE SHRI RAVINDER KUMAR JAIN (R AVI JAIN) WHO DIED SUDDENLY DUE TO HEART ATTACK AFTER A BYPASS SURGERY . AS SUCH THERE WAS NO TIME TO TAKE THE EVIDENCE ON RECORD FOR THE PURCHAS E OF PERSONAL PAINTINGS INHERITED BY HIM EITHER FROM HIS FATHER OR FROM HIS GRAND FATHER AS ANYWAY THE ASSESSEE WAS A MINOR AT THAT TIME. THE OBSERVA TIONS OF THE AO WERE FURTHER ASSAILED ON THE GROUND THAT THE AO WAS NOT A HANDWRITING EXPERT AND IF AT ALL HE HAD ANY DOUBTS HE SHOULD HAVE SOUGHT A N OPINION OF THE EXPERT. THE OPINION OF THE HANDWRITING EXPERTS WAS RELIED UPON WHO HAS FOUND THAT THE SIGNATURE ON THE INVOICE DATED 14.05.1987 MATCH ED WITH THE DYING DECLARATION. 3.5 THE ACTION OF THE AO WAS FURTHER ASSAILED ON TH E GROUND THAT HE HAS DOUBTED THE IDENTITY OF SHRI S. HARSHVARADHANA, SON OF THE LATE ARTIST SHRI J. ITA NO.769/DEL/2012 18 SWAMINATHAN. AS SUCH RELIANCE WAS PLACED UPON THE ATTESTED COPY OF THE PASSPORT OF SHRI S. HARSHVARADHANA. RELIANCE WAS A LSO PLACED ON A CONFIRMATION FROM THE BUYER M/S. ASSOCIATED CAPSULE S PVT. LTD. THROUGH ITS DIRECTOR SMT. KAVITA SINGH FOR THE PURCHASE OF SAID PAINTING ALONG WITH ITS PHOTOGRAPH. IT WAS EXPLAINED THAT THE BUYER IS A L IMITED COMPANY AND HAD MADE THE PAYMENTS BY WAY OF ACCOUNT PAYEE CHEQUE AN D IS DULY ASSESSED TO INCOME-TAX IN MUMBAI WHICH FACT WOULD BE EVIDENT FR OM THE CONFIRMATION OF THE BUYER AND THE COPY OF THE CHEQUE FOR RS.215 LAKHS. THE CONFIRMATION FROM OTHER BUYERS OF THE PAINTINGS WHICH ALREADY ST OOD FURNISHED WERE ALSO RELIED UPON. FOR THE OWNERSHIP OF THE PAINTINGS RE LIANCE WAS PLACED UPON THE COPY OF NEWSPAPER CLIPPING WHICH APPEAR IN THE NEWS PAPAER DINMAN ON 03.03.1976. IT WAS AVERRED THAT A SURVEY WAS CONDU CTED BY THE ADIT(INV.), UNIT 3(III), JHANDEWALAN, NEW DELHI AT THE BUSINESS PREMISES OF THE ASSESSEE ON 23.12.2005 AND DURING THE SURVEY PROCEEDINGS IN 2005-06, COPIES OF INCOME-TAX RETURNS OF THE ASSESSEE FOR THE PREVIOUS YEARS RIGHT FROM 2001-02 WERE ASKED FOR AND WERE FILED BY THE ASSESSEE BEFOR E THE INVESTIGATION WING. THESE RETURNS IT WAS SUBMITTED WERE CARRYING DETAIL S OF PERSONAL PAINTINGS OF THE ASSESSEE AS WELL AS OF BUSINESS PAINTINGS. IT WAS SUBMITTED THAT THESE PAINTINGS INCLUDED THE PAINTINGS WHICH WERE RECEIVE D ON CONSIGNMENT BASIS FROM THE PAINTERS BY THE ASSESSEE AND AT THAT TIME NO ADVERSE VIEW WAS TAKEN ITA NO.769/DEL/2012 19 BY THE DEPARTMENT IN THE INVESTIGATION PROCEEDINGS AND THE DETAILS OF PAINTINGS SUBMITTED BY THE ASSESSEE WERE DULY ACCEP TED. THE INFORMATION AS FILED BEFORE THE ADIT (INV.) WAS ENCLOSED AS ANNEXU RE-4 AND WAS RELIED UPON SO AS TO CONTEND THAT IN SUBSEQUENT YEARS THE DEPARTMENT CANNOT TAKE THE STAND THAT THE POSSESSION OF THE PERSONAL PAINT INGS STOOD UNEXPLAINED AS THE EVIDENCE WAS AVAILABLE WITH THE DEPARTMENT ITSE LF WHICH PROVES THE ASSESSEES STAND. IT WAS REITERATED THAT THE ASSES SEE BELONGS TO A FAMILY WHO WERE COLLECTOR OF PAINTINGS OVER THREE GENERATIONS WHICH SPREAD OVER 70 YEARS AND HENCE IN THIS LONG TIME SPAN TO COLLECT A LARGE NUMBER OF WORKS FOR PERSONAL COLLECTION IS QUITE NATURAL. THE 1150 WOR KS INCLUDE BUNDLES OF PAPER WORKS MANY OF WHICH WERE DRAWINGS OR INSIGNIF ICANT WORKS INCLUDING WORKS WHICH WERE GIVEN AS GIFTS TO THE FAMILY ON VA RIOUS OCCASIONS LIKE BIRTHDAYS, WEDDINGS AND WEDDING ANNIVERSARIES ETC. THE FATHER AND GRAND FATHER OF THE ASSESSEE IT WAS SUBMITTED COLLECTED P AINTINGS AT A TIME WHEN THERE WERE VERY FEW SALES IN PAINTINGS AND THE PAIN TINGS WERE COLLECTED PURELY OUT OF LOVE AND FONDNESS FOR ART AND THE ASS ESSEES FAMILY HAS DEMONSTRATED FROM VARIOUS ARTICLES AND PRESS CLIPPI NGS RIGHT FROM THE TIME OF SHRI RAM BABU ONTO THE TIME OF SHRI RAVINDER KUMAR JAIN (RAVI JAIN) AND TILL DATE THAT THEY HAVE BEEN PROMOTERS AND OWNERS OF DHOOMIMAL GALLERY AND HAVE HAD A LOT OF FONDNESS FOR THE ARTISTS AND HAVE HELPED THEM IN MANY ITA NO.769/DEL/2012 20 FORMS AND IN RETURN THE ARTISTS TO SHOW THEIR APPRE CIATION HAD GIFTED ART WORKS TO THE FAMILY FOR THEIR PERSONAL COLLECTION. THIS PERSONAL COLLECTION WAS BUILT WITH THE IDEA OF LEAVING A LEGACY OF ART FOR POSTER ITY AND EVENTUALLY A MUSEUM. IT WAS SUBMITTED THAT AT THE TIME OF COLLE CTION, THE COLLECTOR DID NOT KNOW THAT SOME OF THEIR COLLECTION WOULD FETCH CRORES OF RUPEES IN FUTURE. IT WAS ALSO SUBMITTED THAT ALL THE PAINTINGS IN POS SESSION OF THE ASSESSEE OR IN THE GALLERY ARE DULY SERIALLY NUMBERED. THE SPECIF IC NUMBER IT WAS SUBMITTED MENTIONED ON EACH OF THE CANVAS/PAINTING AT ITS BACK CLEARLY IDENTIFYING THE PERSONAL PAINTINGS AND DISTINGUISHE S FROM THE PAINTINGS OF DHOOMIMAL GALLERY. IT WAS EMPHASIZED THAT THE CODE NUMBER BEGINNING WITH RJ SIGNIFIES PERSONAL PAINTINGS OF UDYA JAIN INHERITED FROM HIS FATHER, , UJ SIGNIFIES PERSONAL PAINTINGS OF HIS MOTHER U MA JAIN AND DMG BELONGING TO THE DHOOMIMAL GALLERY. ACCORDINGLY IT WAS SUBMITTED THAT THE ASSESSEE HAS ALL THE RECORDS AND EVIDENCES TO SHOW THAT THE PAINTINGS WERE IN HIS POSSESSION AND THAT TOO IN HIS PERSONAL HAND. THE PAINTINGS OF SHRI J. SWAMINATHAN SOLD DURING THE ASSESSMENT YEAR 2007-08 WAS CARRYING SERIAL NUMBER RJ 18 AND THAT WAS PART OF HIS PERSONAL PA INTING APPEARING IN HIS PERSONAL REGISTER OF PAINTINGS. PAINTINGS BELONGIN G TO THE GALLERY WERE SHOWN AS INVENTORY AND BEING SUBMITTED ALONG WITH T HE REPORT IN 3CD FORMAT AND ARE CLEARLY DISTINGUISHABLE FROM THE PER SONAL PAINTINGS AS ITA NO.769/DEL/2012 21 SEPARATE RECORDS ARE BEING MAINTAINED FOR THE PERSO NAL PAINTINGS AND BUSINESS PAINTINGS. THE LIST OF PERSONAL PAINTINGS AS WELL AS BUSINESS PAINTINGS IT WAS SUBMITTED HAVE BEEN FILED IN DETAI L WITH THE DEPARTMENT AT THE TIME OF SURVEY PROCEEDINGS BEFORE THE ADI UNIT 3(III) IN 2005-06 AS ALSO WITH THE AO DURING THE PROCEEDINGS FOR THE A.Y. 200 7-08. A SWORN AFFIDAVIT BY THE ASSESSEE IN REGARD TO SALE OF HIS PERSONAL P AINTINGS IT WAS STATED IS ALSO AVAILABLE ON RECORD. RELIANCE WAS PLACED UPON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF SONA ELECTRIC CO. VS. CIT (1985) 152 ITR 507 FOR THE PROPOSITION THAT THE EXPLANATION GIVEN BY THE ASSESSEE CANNOT BE REJECTED ARBITRARILY OR CAPRICIOUSLY WITHOUT SUFFIC IENT GROUNDS AND MERELY ON SUSPICION OR ON IMAGINARY OR IRRELEVANT GROUNDS. R ELIANCE WAS ALSO PLACED ON THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF HASTIMAL (S) VS. CIT (1963) 49 ITR 273 FOR THE PROPOSITION THAT INFERENCES SHOULD BE DRAWN AFTER GIVING THE ASSESSEE A FAIR OPPORTUNITY TO EXPLAIN THE CREDITS. 4. THE LEARNED CIT(A) FORWARDED THE ADDITIONAL EVID ENCE ALONG WITH THE SUBMISSIONS OF THE ASSESSEE TO THE ASSESSING OFFICE R AND SOUGHT A REMAND REPORT VIDE F.NO.CIT(A)-XXVI/2010-2011/30 DATED 30. 04.2010 AND ON 24.05.2010 VIDE F.NO. CIT(A)-XXVI/2010-2011/78. 4.1 AS PER RECORD THE FIRST REMAND REPORT WAS SUBMI TTED BY THE ASSESSING OFFICER ON 04.06.2010 AND THEREAFTER ANOTHER REMAND REPORT WAS SUBMITTED ITA NO.769/DEL/2012 22 ON 03.08.2011. AS PER PARA 6.2.A OF THE IMPUGNED O RDER IN THE FIRST REMAND REPORT THE AO REITERATED HIS EARLIER STAND AND OBJE CTED TO THE ADMISSION OF ADDITIONAL EVIDENCE BEING OF THE VIEW THAT THESE EV IDENCES COULD HAVE BEEN FILED AT THE TIME OF ASSESSMENT PROCEEDINGS. IN TH E SECOND REMAND REPORT THE ADMISSION OF NEW EVIDENCES AGAIN WAS OBJECTED TO CI TING RULE 46A ON THE GROUND THAT THE ASSESSEE WAS NOT PREVENTED BY SUFFI CIENT CAUSE FOR NOT FILING THE EVIDENCES WHICH WERE NOW SOUGHT TO BE PRODUCED. 4.2 IN RESPONSE THERETO THE ASSESSEE WAS GIVEN AN O PPORTUNITY TO FILE THE REJOINDER WHICH WAS FILED ON 11.10.2011 WHEREIN IT WAS REITERATED THAT AFTER THE HEARING ON 4.12.2009 THERE WAS NO OCCASION FOR THE ASSESSEE TO FILE THE EVIDENCES WHICH ARE NOW SOUGHT TO BE ADMITTED. THE AO IN THE ENTIRE ASSESSMENT PROCEEDINGS KEPT HIS FOCUS ON THE GENUIN ENESS OF THE DYING DECLARATION. RELIANCE WAS PLACED UPON THE DOCUMENT S SUBMITTED BEFORE THE INVESTIGATION WING OF THE DEPARTMENT CONSEQUENT TO THE SURVEY ON 23-12- 2005. IT WAS SUBMITTED THAT THE EVIDENCES SOUGHT T O BE RELIED UPON CONSISTED OF COPIES OF THE RETURN OF INCOME FOR THE A.Y. 2002 -03 AND 2003-04 ETC., LIST OF PERSONAL PAINTINGS ATTACHED AND DULY ACKNOWLEDGE D BY THE AO EVEN IN THE REMAND PROCEEDINGS WAS RELIED UPON. THE SAID LIST IT WAS SUBMITTED CONTAINED THE PAINTINGS WHICH WERE SOLD IN A.Y. 200 7-08. ITA NO.769/DEL/2012 23 5. CONSIDERING THE SAME, FRESH EVIDENCE WAS ADMITTE D BY THE CIT(A) OBSERVING AS UNDER:- 6.2.B ADMISSION OF FRESH EVIDENCES I HAVE GONE THROUGH THE ENTIRE SEQUENCE OF ASSESSME NT PROCEEDINGS AND HAVE FOUND THAT THE FIRST NOTICE TO THE APPELLANT WAS GIVEN ON 16-11-2009 WITH THE DETAILED QUESTIONN AIRE CALLING FOR VARIOUS INFORMATION FROM THE APPELLANT, INCLUDING CONFIRMATION AND SOURCE OF ACQUISITION FOR THE PAIN TINGS. THE APPELLANT FILED THE REPLY ON 4.12.2009. AFTER THAT , THERE WERE THREE HEARING, ON 7.12.2009, 23.12.2009 AND LAST ON 29 TH DECEMBER, 2009. I HAVE CALLED FOR THE ASSESSMENT R ECORDS ALSO TO VERIFY THE CONTENTION OF THE APPELLANT. IT IS NO TED FROM THE RECORD THAT NO FURTHER DETAILS REGARDING ACQUISITIO N AND CONFIRMATION OF THE PAINTINGS WERE CALLED FOR BY TH E AO AFTER THE FIRST EFFECTIVE HEARING ON 4.12.2009 AND FOUND THE APPELLANT'S CONTENTION TO BE CORRECT. IN THE CONCLU DING HEARING ON 29.12.2009 THE AD ON THE ORDER SHEET HAS WRITTEN AS UNDER: 'SH. K.B. SHARMA CA, FURTHER REPLY FILED. CERTIFIED TRUE COPY OF BOTH THE DOCUMENTS (DYING DECLARATION AND AN INVOICE WITH SIGNATURES OF LATE SHRI RAVI JAIN) AND PLACED ON FILE. REDIRECTED TO RETAIN THE ORIGINAL COPY FOR FURTHER FUTURE REFERENCE ON WHICH THE SIGNATURES HAVE ALSO BEEN PLACED BY ME. BOOKS PRODUCED, CASE DISCUSSED. IN NONE OF THE EARLIER HEARINGS, THE AO HAS ASKED F OR THE BALANCE DETAILS NOR ANY OTHER INFORMATION REGARDING ACQUISITION & POSSESSION OF PAINTINGS. NOT EVEN A SHOW CAUSE WA S GIVEN TO THE APPELLANT BEFORE MAKING SUCH A HUGE ADDITION WH ILE DOING THE ASSESSMENT. FROM THE ASSESSMENT RECORDS AND ORD ER SHEET ENTRY ON VARIOUS DATES, IT SEEMS THAT AO HAS INSTEA D OF GOING IN FOR VERIFICATION OF THE INCOME OF THE APPELLANT FRO M SALE OF PAINTINGS, LOST FOCUSED TO THE AUTHENTICITY OF DYIN G DECLARATION OF LATE SHRI RAVI JAIN, FATHER OF THE APPELLANT. TH E AO HAS GIVEN TOO MUCH OF IMPORTANCE TO THE DYING DECLARATI ON, BUT IT IS ALL ABOUT INHERITANCE OF THE PROPERTY TO HIS WIFE A ND SON, WHICH ITA NO.769/DEL/2012 24 IN ANY CASE IS A NATURAL COROLLARY AS UDAY JAIN WAS HIS ONLY SON. FOR COUNTERFEITING SIGNATURES OF FATHER, THERE HAS TO BE SOME STRONG REASONS FOR THE APPELLANT AND IN THE PR ESENT CIRCUMSTANCES, I FOUND TO BE NONE, AS APPELLANT GET S NO BENEFIT FROM THE DYING DECLARATION. IN THE CONCLUDING HEARI NG ALSO, THE AO HAS NOT RECORDED ANY DISSATISFACTION FOR NOT PRO DUCING THE REQUISITE DOCUMENTS, HE WAS LOOKING AT, FOR THE PUR CHASE, POSSESSION OF PAINTING AND THE GENUINENESS OF THE S ALE TRANSACTIONS. RATHER HE CONCLUDED THAT THE BOOKS HA VE BEEN PRODUCED WITH NO ADVERSE COMMENTS, WHILE ACCEPTING THE BOOKS OF ACCOUNTS OF THE APPELLANT. IN VIEW OF THE ABOVE DISCUSSION, THE ADDITIONAL EVI DENCES FILED UNDER RULE 46A DURING THE APPELLATE PROCEEDINGS IS BEING ADMITTED AS THE APPELLANT WAS NOT GIVEN SUFFICIENT TIME AND REASONABLE OPPORTUNITY TO FURNISH EVIDENCE TO SUBST ANTIATE HIS CLAIM. 5.1 ON MERITS THE CIT(A) WAS OF THE VIEW THAT FOR A DJUDICATION THE FOLLOWING THREE ISSUES HAD TO BE DECIDED:- 'I) WHETHER THE ASSESSEE WAS IN POSSESSION OF THE SAID PAINTINGS AT THE TIME SALE THEREOF. II) HOW AND WHEN THE PAINTINGS WERE ACQUIRED BY THE ASSESSEE. III) WHETHER THESE PAINTINGS WERE SOLD BY THE ASSESSEE D URING THE YEAR AND THE CONSIDERATION RECEIVED. 5.2 IN REGARD TO THE POSSESSION AND ACQUISITION OF THE PAINTINGS BY THE ASSESSEE THE CIT(A) VIDE PARA 6.3.1.A TO 6.3.1.I C ONCLUDED THAT THE ASSESSEES CONTENTION IN REGARD TO THE POSSESSION O F THE PAINTINGS HAD TO BE ACCEPTED. ON FACTS THE FOLLOWING REASONING WAS TAK EN:- ITA NO.769/DEL/2012 25 6.3.1.A IT IS PUBLICLY KNOWN FACT THAT DHOOMIMAL G ALLERY IS WELL KNOWN AND ONE OF THE OLDEST ART GALLERY IN THE COUNTRY. THE APPELLANT CLAIMED THAT THE HE HAS LARGE COLLECT ION OF PAINTINGS NUMBERING 1149 IN HIS POSSESSION DURING T HE AY. 2007-08 WHICH WERE ACQUIRED SINCE 1936 BY HIS GRAND FATHER AND FATHER. IN SUPPORT, THE APPELLANT SUBMITTED NU MBER OF PAPER CLIPPINGS, NEWS ITEMS, ARTICLES OF VARIOUS AR TIST AND COLUMNISTS, ART CRITICS ETC. HE ALSO PRODUCED BEFOR E ME THE ALBUM CONTAINING HUNDREDS OF NEWS CLIPPINGS, DESCRI BING ABOUT THE FAMILIES DEEP INTEREST IN PAINTINGS, THEIR POSS ESSION AND EXHIBITIONS THEREOF IN VARIOUS ART SHOWS AND EXHIBI TIONS. ORIGINAL NEWS PAPER CUTTING OF HINDI DAILY 'DINMAN' DATED 3.3.1976 WAS ALSO PRODUCED WHICH SHOWS PUBLICATION OF THE SPECIFIC PAINTING OF J SWAMINATHAN THAT WAS SOLD DU RING THE YEAR BY APPELLANT. IT WAS EXHIBITED IN ONE OF THE S HOWS HELD BY DHOOMIMAL GALLERY AND WAS COVERED BY THE NEWS PAPER . DURING THE AY. 2007-08 THIS PAINTING WAS SOLD FOR RS.2,15,00,000/- BY THE APPELLANT TO M/S ASSOCIATED CAPSULES PVT. LTD. WHO HAVE FURNISHED THE CONFIRMATION ALONG WITH THE COPY OF THE SAME PAINTING. 6.3.1.B THE APPELLANT ALSO SUBMITTED THE LIST OF P ERSONAL AND BUSINESS PAINTINGS WHICH HE CLAIMS WAS FILED AL ONG WITH THE INCOME TAX RETURNS SINCE 2000-01. THE AO HAS CONTE NDED THAT IN SOME OF THE YEARS THIS LIST WAS NOT THERE AND IN SOME CASES IT WAS THERE EVEN THOUGH NOT MENTIONED IN THE I T ACKNOWLEDGEMENT FORM. BUT THE FACT REMAINS THAT THE LIST OF PERSONAL PAINTING WAS ATTACHED WITH THE RETURN, ATL EAST WITH THE RETURNS FOR A.Y.2002-03 AND 2003-04 WHICH WAS MUCH BEFORE A.Y. 2007-08. THE CONTENTION OF THE APPELLANT ALSO GET SUPPORT FROM THE DETAILS FILED BEFORE THE INVESTIGATION WIN G, JHANDEWALAN, NEW DELHI BY UNIT III ON 23.12.2005 WH EREIN DURING THE SURVEY PROCEEDINGS A THE SET OF INCOME T AX RETURNS FOR FIVE ASSESSMENT YEARS SINCE 2000-01 WERE FILED BEFORE THE INVESTIGATION OFFICER. THIS SET OF RETURNS ALSO CON TAINS THE LIST OF PERSONAL AS WELL AS BUSINESS PAINTINGS SEPARATELY A ND NO ADVERSE INFERENCE WAS DRAWN AGAINST THE APPELLANT. FURTHER SINCE THE INCOME TAX RETURN OF PAST YEARS AND INCOM E TAX SURVEY MATERIAL IS VERY MUCH PART OF THE DEPARTMENT RECORD, THE AO CANNOT TAKE A PLEA NOW THAT THE APPELLANT HAS NO T FILED THE ITA NO.769/DEL/2012 26 PROOF OF FILING THE LIST OF PERSONAL PAINTING ALONG WITH THE INCOME TAX RETURNS IN THE PAST. 6.3.1.C THE APPELLANT HAS ALSO PRODUCED THE PERSON AL LEDGERS, RECORDING THE DETAILS OF PERSONAL PAINTING S IN HIS POSSESSION AND A COPY OF THE SAME WAS ALSO FILED VI DE LETTER DATED 24.5.2010 IN ANNEXURE 6 FOR THE PAINTERS WHOS E PAINTINGS HAVE BEEN SOLD. FROM THE PERUSAL OF THIS STOCK LEDG ER FOR PERSONAL PAINTINGS, IT IS FOUND THAT SEPARATE LEDGE R PAGES FOR EACH OF THE PAINTER HAVE BEEN MADE. ALL THE PAINTIN GS ARE SERIALLY NUMBERED; CODES NUMBERED AND ARE INDIVIDUA LLY IDENTIFIABLE. THE APPELLANT ALSO EXPLAINED THAT THE BUSINESS PAINTINGS ARE ALSO SERIALLY NUMBERED WITH THE SERIE S STARTING WITH DMG ... AND PERSONAL PAINTINGS WITH THE SERIES STARTING WITH RJ ... (RJ SIGNIFIES RAVI JAIN). IT WAS ALSO E XPLAINED BY THE APPELLANT THAT THE SIMILAR NUMBER IS ALSO WRITTEN O N THE BACK OF EACH OF THE PHYSICAL PAINTING AND IS VERIFIABLE SEP ARATELY. 6.3.1.D ON PERUSAL OF THE LIST OF PERSONAL PAINTIN GS REVEAL THAT THE APPELLANT WAS HAVING THE PAINTINGS THAT WE RE SOLD DURING THE ASSESSMENT YEAR 2007-08. THE APPELLANT C OULD IDENTIFY ALL THE PAINTINGS SOLD DURING THE YEAR FRO M THE LIST OF PERSONAL PAINTINGS AND THE LEDGER OF PERSONAL PAINT INGS WAS SUBMITTED BEFORE ME. IT WAS ALSO POINTED OUT BY THE APPELLANT THAT SOME OF THE ARTIST LIKE SOHAN QUADRI AND JAI R AM PATEL, WHOSE PAINTINGS WERE SOLD OUT OF PERSONAL COLLECTIO N DO NOT EVEN FIGURE IN THE DETAILS OF PAINTING ANNEXED WITH 3CD TAX AUDIT REPORT FOR BUSINESS PAINTINGS AND THEREFORE T HESE PAINTINGS CANNOT BE SOLD OUT OF BUSINESS STOCK TO Q UALIFY AS SALE OF BUSINESS PAINTINGS. 6.3.1.E THE APPELLANT FILED THE CONFIRMATION FROM MR. HARSHVARDHANA SWAMINATHAN S/O LATE SHRI J SWAMINATH AN WHOSE PAINTING WAS SOLD FOR RS.2,15,OO,OOOI- FOR TH E PAINTING OWNED BY THE APPELLANT. HE ALSO CERTIFIED THAT THE PAINTING UNDER CONSIDERATION WAS SOLD BY HIS FATHER TO THE FATHER OF THE APPELLANT. THE CONFIRMATION WAS SUBMI TTED DURING ASSESSMENT PROCEEDINGS ALSO BY THE APPELLANT. THE A PPELLANT HAS ALSO FILED THE CONFIRMATION FROM THE BUYER OF O THER ITA NO.769/DEL/2012 27 PAINTINGS OF SMALLER VALUES. ALL THE CONFIRMATIONS ALSO DEPICT THE PICTURE OF THE PAINTING SOLD. 6.3.1.F FOR THE GENUINENESS OF THE DYING DECLARATI ON OF THE FATHER OF THE APPELLANT, THE LATER HAS SUBMITTED A REPORT OF HANDWRITING EXPERTS WHO HAVE CONFIRMED THAT IT WAS SIGNED BY THE APPELLANT'S FATHER. THE ASSESSING OFFICER HAS F AILED TO BRING ON RECORD ANY MATERIAL TO CONTRADICT THE REPORT OF THE HANDWRITING EXPERT. HE HAS GIVEN HIS OWN OPINION DO UBTING THE HAND WRITING OF LATE SHRI RAVI JAIN. HOWEVER SINCE THE REPORT HAS BEEN AUTHENTICATED BY AN EXPERT THE VIEWS EXPRE SSED BY THE AO CANNOT BE CONSIDERED UNLESS THE SAME IS CONTRADI CTED BY ANOTHER EXPERT. EVEN OTHERWISE, AS STATED EARLIER, TOO MUCH IMPORTANCE CANNOT BE GIVE TO THIS DOCUMENT, AS IN M Y VIEW IT HAS NOT MUCH BEARING TO THE ISSUE IN THIS CASE. 6.3.1.G FROM THE DETAILS AND NUMEROUS NEWS PAPER CLIPPINGS AND OTHER EVIDENCES PRODUCED BEFORE ME, I T CAN BE CONCLUDED THAT THE APPELLANT'S FAMILY ARE THE ARDEN T LOVERS OF PAINTINGS; HAVING CULTURE OF INTERACTING WITH ARTIS T COMMUNITY AND HAVE THE LARGE COLLECTION OF PAINTINGS ACCUMULA TED OVER THREE GENERATIONS. SINCE THE APPELLANT ACQUIRED THE PAINTINGS FROM HIS FATHER WHO DIED IN THE YEAR 1991 DUE TO HE ART ATTACK WHEN HE WAS JUST 9 YEAR OLD AND FOR HIS INHERITED C OLLECTION, NO RECORDS FOR ITS ACQUISITION WERE KEPT OR HANDED OVE R TO HIM. IT WAS ALSO CONTENDED THAT EVEN THE LAW DOES NOT REQUI RE TO KEEP RECORDS FOR MORE THAN 8 YEARS. IT WAS ALSO SUBMITTE D THAT SINCE AT THE TIME OF ACQUISITION THE COST OF THE PAINTING S AND DRAWING WAS SO LOW THAT IT COULD NOT BE THOUGHT OF THAT A P AINTING WORTH JUST RS.2000 COULD FETCH MORE THAN RS.2 CRORES TODA Y. ALSO SINCE THE APPELLANT IS HAVING COLLECTION OF PAINTIN GS OF LARGE NUMBER OF ARTISTS OUT OF WHOM HARDLY THREE OR FOUR COULD GET TO A FAME OF FETCHING LAKHS AND CRORES. 5.3 IN PARA 6.3.1.B HE CONSIDERED THE PRINCIPLE LAI D DOWN BY THE JUDGEMENT OF THE HONBLE MADRAS HIGH COURT IN THE C ASE OF HASTIMAL (S) (SUPRA). CONSEQUENTLY HE CONCLUDED AS UNDER:- ITA NO.769/DEL/2012 28 6.3.1.I RELYING ON THE JUDICIAL PRONOUNCEMENTS CI TED BY HON'BLE MADRAS HIGH COURT THAT APPELLANT CANNOT BE CALLED UPON TO PRODUCE THE SOURCE OF PAYMENTS AND BILLS FO R THE PURCHASE FOR THE TRANSACTIONS WHICH HAD HAPPENED DE CADES EARLIER AND IS NOT EXPECTED TO PRESERVE THE SAME, M OREOVER SO WHEN THE PURCHASE IS NOT MADE BY HIM. THE EVIDENCE S FOR AUTHENTICITY OF THE TRANSACTIONS AND CLAIMS HAVE TO BE LOOKED BEYOND THE SPECIFICS, CONSIDERING THE LAPSE OF TIME AND THE CIRCUMSTANCES OF THE CASE. IN MY VIEW, IN THIS CASE THE APPELLANT HAS PRODUCED SUFFICIENT MATERIAL AND RECORDS FOR TH E ACQUISITION AND POSSESSION OF THE PAINTINGS, SPECIFICALLY A STR ONG EVIDENCE IN THE FORM OF LIST OF PAINTING WHICH WAS IN THE PO SSESSION OF THE DEPARTMENT THE FILING OF THE RETURN WHICH HAS ALSO TESTED THE SCRUTINY AT THE TIME OF SURVEY PROCEEDINGS WITH NO ADVERSE INFERENCE ON THE SAME AND AT THE SAME TIME CLEAR DI STINCTION BETWEEN PERSONAL AND BUSINESS PAINTINGS. THE FACT O F LIST OF PERSONAL PAINTINGS, IN POSSESSION OF THE APPELLANT, IN RECORDS OF THE DEPARTMENT IS UNDISPUTED AND HENCE NOW AT THE T IME OF DISPOSAL OF THESE PAINTINGS THE QUESTION OF POSSESS ION OF PAINTING CANNOT BE RE-AGITATED. FROM THE FACTS AND EVIDENCES PRODUCE BY THE APPELLA NT I AGREE WITH THE CONTENTION OF THE APPELLANT THAT THE APPEL LANT WAS IN POSSESSION OF ALL THE PAINTINGS IN QUESTION AT THE TIME SALE IN HIS PERSONAL CAPACITY WHICH WERE ACQUIRED BY HIM FROM H IS FATHER ON HIS DEATH. 5.4 IN REGARD TO THE SALE OF PAINTINGS AND RECEIPT OF CONSIDERATION THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE OBSERVING AS UNDER:- 6.3.2 SALE OF PAINTINGS AND RECEIPT OF CONSIDERATION: THE APPELLANT HAS SUBMITTED THE CONFIRMATION FOR SA LE OF ALL THE PAINTINGS AMOUNTING TO RS.2,42,10,000/- ALONG WITH THE IDENTITY PROOF OF THE BUYERS. IN RESPECT OF ONE PAINTING THA T WAS SOLD FOR RS.2,15,00,OOO/-, THE APPELLANT HAS SUBMITTED THE C OPY OF CHEQUE THROUGH WHICH HE HAS RECEIVED THE PAYMENT, P AN OF THE COMPANY AND THE CONFIRMATION LETTER. FOR OTHER PAIN TINGS ALSO, THE PAYMENTS HAVE BEEN RECEIVED BY THE APPELLANT AN D RECORDED ITA NO.769/DEL/2012 29 THE SAME IN THE BOOKS OF ACCOUNTS, WHICH WAS VERIFI ED BY THE AO AND IS NOT IN DISPUTE. IN VIEW OF ABOVE, IT IS HELD THAT THE APPELLANT WAS HAVING COLLECTION OF PERSONAL PAINTINGS AND HE WAS IN POSS ESSION OF THE PAINTINGS SOLD, AND HENCE RECEIVED A CONSIDERATION OF RS.2,42,10,0001- FOR THE SALE OF SAME. THEREFORE, T HE CLAIM OF THE APPELLANT OF RS.2,42,1 0,000/- IS ALLOWED. 6. AGGRIEVED BY THIS ORDER THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 7. THE LEARNED CIT-DR RELYING UPON THE ASSESSMENT O RDER CONTENDED THAT THE AO HAS DOUBTED THE FACTUM OF POSSESSION OF PAINTINGS BY THE ASSESSEE AND IN THE PROCESS QUESTIONED THE VERACITY AND GENUINENESS OF THE DYING DECLARATION AS SUCH HE REQUIRED THE ASSESSEE TO EXPLAIN THE SAME. IN THE CIRCUMSTANCES, THE DEPARTMENT HAS NOT AGREED WI TH THE FINDINGS OF THE CIT(A). AS SUCH HEAVY RELIANCE WAS PLACED ON THE A SSESSMENT ORDER. 8. THE LEARNED AR ON THE OTHER HAND RELYING HEAVILY ON THE IMPUGNED ORDER AND THE FACTS AND SUBMISSIONS MADE BEFORE THE AO AND REITERATED BEFORE THE CIT(A) SUBMITTED THAT THE IMPUGNED ORDER DESERVES TO BE UPHELD. ASSAILING THE ACTION OF THE AO WHO IT WAS STATED WA S HELL BENT ON DISAGREEING WITH THE ASSESSEE IN REGARD TO THE OWNE RSHIP OF PAINTINGS IT WAS SUBMITTED THAT PLETHORA OF EVIDENCE IN ORDER TO EST ABLISH THE FACT THAT THE ASSESSEE BELONGS TO A RENOWNED FAMILY WHO HAVE HOLD AN ABIDING INTEREST IN THE ART WORLD HAS BEEN LED. IT WAS HIS SUBMISSION THAT AT THE TIME OF DEATH OF HIS FATHER THE ASSESSEE WAS A MINOR. IT WAS ALSO H IS CONTENTION THAT THE LIST OF ITA NO.769/DEL/2012 30 PERSONAL PAINTINGS INHERITED THOUGH HAS BEEN FILED BY THE ASSESSEE WAS ALREADY IN THE POSSESSION OF THE DEPARTMENT WHICH H AS NEVER BEEN QUESTIONED AND NOW FOR THE FIRST TIME WHEN SOME OF THE PAINTIN GS ARE SOLD FOR THE FIRST TIME DUE TO FINANCIAL NEEDS THE DEPARTMENT WAKES UP AND QUESTION THE OWNERSHIP OF THE SAME. IN ORDER TO EMPHASIS THE HI GH HANDEDNESS OF THE AO ATTENTION WAS INVITED TO HIS ACTION WHERE HE BRUSHE D ASIDE THE PROOF OF THE PAINTING HAVING BEEN PURCHASED BY THE ASSESSEES FA MILY OF THE LATE ARTIST SHRI J. SWAMINATHAN WHEREIN CONFIRMATION TO THE SAI D EFFECT WAS GIVEN BY HIS SON. AS A RESULT OF THIS IT WAS SUBMITTED THAT THE ASSESSEE HAD TO FILE ATTESTED COPY OF THE PASSPORT OF SHRI S. HARSHVARDH ANA S/O LATE SHRI J. SWAMINATHAN. IT WAS ALSO HIS ASSERTION THAT THROUG HOUT THE ASSESSMENT PROCEEDINGS THE AO HAD FOCUSED ON THE FACT THAT THE DYING DECLARATION WAS NOT CORRECT. THE SAID DECLARATION IT WAS SUBMITTED IS REPRODUCED IN THE ORDERS RELYING ON ITS GENUINENESS WHICH IS SUPPORTE D BY THE OPINION OF THE EXPERT. IT WAS CONTENDED THAT THE AO NOT BEING A H ANDWRITING EXPERT, WAS NOT JUSTIFIED IN BRUSHING ASIDE THE EVIDENCE WHICH HAS BEEN RELIED UPON BY THE ASSESSEE IN GOOD FAITH AS EVEN OTHERWISE PRESUM ING WHERE THERE HAD BEEN NO DYING DECLARATION, THEN IN SUCH AN EVENTUALITY T HE PERSONAL BELONGINGS/POSSESSION OF PAINTINGS ETC. WOULD HAVE DEVOLVED ON THE SON AND THE SURVIVING WIDOW AS SUCH THE ONLY PERSON WHO COU LD HAVE BEEN AGGRIEVED ITA NO.769/DEL/2012 31 BY SUCH A DYING DECLARATION IF AT ALL COULD HAVE BE EN THE SURVIVING WIDOW WHO HAS NOT QUESTIONED IT AS SUCH THE AO HAD NO REA SON OR OCCASION TO COMMENT UPON THE WORDING USED IN THE DYING DECLARAT ION BY A PERSON THE AO HAD NO OCCASION TO DOUBT THE MIND OF A PERSON WHO W AS ABOUT TO UNDERGO OPERATION FOR BYPASS SURGERY/OPEN HEART SURGERY. I T WAS HIS ASSERTION THAT THE DOCUMENTS LYING IN THE POSSESSION OF THE DEPARTMENT ITSELF AT THE TIME OF SURVEY WHEREIN THE LIST WHICH HAD BEEN RELIED UPON BY THE ASSESSEE SHOWS THE OWNERSHIP OF THESE PAINTINGS WITH THE ASSESSEE. A SURVEY HAVING BEEN TAKEN PLACE ON 23.12.2005 IN WHICH THE RETURNS ALON G WITH THE LIST OF PERSONAL BELONGINGS TO THE ASSESSEE WERE AVAILABLE ON THE RECORD OF THE DEPARTMENT ITSELF AND THE AO INSTEAD TOOK THE PROCE EDINGS IN AN ENTIRELY DIFFERENT LINE. 8.1 SINCE IN THE ENTIRE LIST OF PAINTINGS IT WAS SU BMITTED THE MOST EXPENSIVE PAINTING SOLD BELONGED TO LATE SHRI J. SW AMINATHAN, IT WAS URGED NOT ONLY THE CONFIRMATION OF THE SON OF THE SAID AR TIST WAS ON RECORD BUT THE ASSESSEE HAD MADE AN EFFORT TO PROCURE CONFIRMATION OF THE SALE OF THE SAID PAINTING BY THE PERSON WHO PURCHASED IT FROM THE AS SESSEE WHICH WAS FRESH EVIDENCE FILED BEFORE THE CIT(A). REFERRING TO THE SAME IT WAS SUBMITTED THAT THE SAID PAINTING WAS PROCURED BY ASSOCIATED C APSULES PVT. LTD. AND CONFIRMATION THROUGH ITS DIRECTOR SMT. KAVITA SINGH ALONG WITH THE COPY OF ITA NO.769/DEL/2012 32 CHEQUE OF THE STATED AMOUNT WAS RELIED UPON AS ADDI TIONAL EVIDENCE. IT WAS REITERATED THAT THE SPECIFIC PAINTING BELONGING TO THE ASSESSEE INHERITED BY THE ASSESSEE THROUGH HIS FATHER WHICH BEARS INITIALS AS RJ AND THE ONE BELONGING TO HIS MOTHER WHICH BEARS INITIAL UJ AN D THE PAINTINGS BELONGING TO THE GALLERY ARE DEPICTED WITH THE INITIALS DMG . ALL THESE FACTS AND EVIDENCES HAVE BEEN PLACED BEFORE THE AUTHORITIES A ND HAVE BEEN TAKEN INTO CONSIDERATION BY THE CIT(A) AND THE AO HAS PROCEEDE D ON THE FOOTING THAT THE EVIDENCE NEED NOT BE LOOKED INTO. HOWEVER, THE CIT(A) IT WAS URGED HAS TAKEN THE COMPLETE FACTS INTO CONSIDERATION AND HA D COME TO THE CONCLUSION. THE REVENUE IN ITS APPEAL IT WAS SUBMITTED HAS NOT CONTESTED THE ADMISSION OF ADDITIONAL EVIDENCE AND HAS NOT DEMOLISHED THE VERA CITY OF THE DOCUMENTS AS THEY ARE AVAILABLE WITH THE DEPARTMENT ALL ALONG. ATTENTION WAS INVITED TO COPY OF THE REPORT OF HANDWRITING EXPERT PLACED AT PAGES 229 TO 239 OF THE PAPER BOOK FILED BY THE ASSESSEE. LIST OF PAINTING S OWNED BY THE ASSESSEE IN HIS PERSONAL CAPACITY IT WAS SUBMITTED ARE SUBMITTE D AT PAGE 62 OF THE PAPER BOOK AND THE DETAILS OF PERSONAL PAINTINGS SOLD DUR ING THE YEAR ARE PLACED AT PAGE 63 OF THE PAPER BOOK. THE CONFIRMATION FROM T HE DIRECTOR OF M/S. ASSOCIATED CAPSULES PVT. LTD. WHO PURCHASED THE PAI NTING OF SHRI J. SWAMINATHAN IS PLACED AT PAGE 329 OF THE PAPER BOOK . THE NEWSPAPER CLIPPING IN REGARD TO THE SAID PAINTING OF THE LATE ARTIST IT WAS SUBMITTED IS ITA NO.769/DEL/2012 33 PLACED AT PAGE 330; PAGE 354A TO 356 DESCRIBE NUMBE R OF PAINTINGS OF SPECIFIC ARTISTS HELD BY THE ASSESSEE IN HIS PERSON AL CAPACITY FOR WHICH THE DETAILS WERE AVAILABLE IN THE RETURN OF THE ASSESSE E FOR ASSESSMENT YEAR 2003- 04. SIMILARLY IN A.Y. 2002-03 THE DETAILS OF PAINT ING APPENDED AT PAGE 378 OF THE PAPER BOOK WHICH WERE ALSO AVAILABLE ON RECO RD OF THE DEPARTMENT. PAGES 460 & 461 IT WAS SUBMITTED ARE COPIES OF THE NEWSPAPER CLIPPINGS TO SHOW THAT THE ASSESSEES FAMILY HAS ALL ALONG HAD A N ABIDING INTEREST AND FONDNESS FOR THE ART WORK. ATTENTION WAS INVITED TO PAGES 462 TO 478 OF THE PAPER BOOK WHICH IS A COPY OF THE STOCK REGISTER OF THE ASSESSEE DETAILING THE FACT WHERE THE PAINTINGS ARE INITIALED AND NUMBERED TO DESCRIBE THE PERSONAL OWNERSHIP OF THE PAINTINGS BY THE ASSESSEE. AT PAG ES 479 AND 480 OF THE PAPER BOOK IT WAS SUBMITTED IS THE AFFIDAVIT OF THE ASSESSEE AFFIRMING THESE FACTS AND OUT OF THIS COLLECTION 13 PAINTINGS WERE SOLD FOR THE SPECIFIC AMOUNTS MENTIONED; PAGE 488 IT WAS SUBMITTED CONTAI NS THE BUYERS NAMES AND ADDRESSES ALONG WITH THE DATES ON WHICH THE PAI NTINGS WERE SOLD INCLUDING THE AMOUNTS. NONE OF THESE EVIDENCES IT WAS SUBMITTED HAS BEEN FAULTED WITH BY THE DEPARTMENT OR SHOWN TO BE WRONG OR FALSE. ACCORDINGLY, RELYING UPON THE IMPUGNED ORDER IT WAS CONTENDED TH AT THE DEPARTMENTS GROUNDS DESERVE TO BE DISMISSED. 9. THE LEARNED CIT-DR IN REPLY PLACED RELIANCE ON T HE ASSESSMENT ORDER. ITA NO.769/DEL/2012 34 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. A PERUSAL OF THE ASSESSMENT O RDER SHOWS THAT UNNECESSARY EMPHASIS HAD BEEN LAID UPON THE FACT TH AT LATE SHRI RAVINDER KUMAR JAIN (RAVI JAIN) ADDRESSED HIS WIFE OR DID NO T ADDRESS HIS WIFE AS SMT. UMA DEVI JAIN WHEREIN DEVI WAS STRUCK OFF INST EAD UMA JAIN WAS WRITTEN. ON A CAREFUL CONSIDERATION OF THE SAME IT IS SEEN THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES WHERE THERE IS NO DISPUTE A MONGST THE SURVIVING WIFE AND SON OF SHRI RAVINDER KUMAR JAIN (RAVI JAIN ) THE AO MADE AN UNNECESSARY EFFORT TO DOUBT THE CONTENTS AND THE WR ITING OF SHRI RAVIJAIN AS THE PAINTINGS, PERSONAL EFFECTS AND OTHER VALUABLE GOODS OF SHRI RAVI JAIN, AS PER LAW, IN THE ABSENCE OF A WILL WOULD HAVE DEVOLV ED ON HIS SURVIVING WIFE AND CHILDREN. THE ASSESSEE BEING THE SOLE CHILD OF SHRI RAVI JAIN IS A FACT ON RECORD AND THAT AT THE RELEVANT TIME OF DEATH WAS A MINOR UNDER THE GUARDIANSHIP OF HIS MOTHER. THE EFFECTS TO DEMOLIS H THE DYING DECLARATION WAS AN EXERCISE IN FUTILITY ON THE PART OF THE AO I N THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AS IT WAS IN UTTE R DISREGARD OF THE INHERITANCE LAWS AND FACTS AND CIRCUMSTANCES WITH W HICH HE WAS SEIZED. THE PRESENT CASE WAS NOT SUCH A CASE WHERE THE SURVIVIN G FAMILY MEMBERS NAMELY THE WIDOW AND THE SON WERE CONTESTING THE OW NERSHIP, HAD IT BEEN SO EVEN IN SUCH AN EVENTUALITY THE DISPUTE WOULD HAVE BEEN SETTLED BY THE CIVIL ITA NO.769/DEL/2012 35 COURTS. IN THE FACTS OF THE PRESENT CASE AS OBSERV ED IF THE PERSON HAD DIED INTESTATE OR WITHOUT A WILL IN THOSE CIRCUMSTANCES THE PROPERTY IN MOVABLES AND IMMOVABLE WOULD HAVE DEVOLVED IN SPECIFIC SHARE S AMONGST THE SURVIVING FAMILY MEMBERS AND WHERE THERE IS A DYING DECLARATION IN FAVOUR OF A MINOR SON UNDER THE GUARDIANSHIP OF A MOTHER T HE AO HAD NO OCCASION WHATSOEVER TO QUESTION THE SAME AS HE WAS NOT AN EX PERT AS SUCH NOT QUALIFIED TO JUDGE THE AUTHENTICITY OF THE SIGNATUR ES AND AS PER SETTLED LAW HE SHOULD HAVE SOUGHT THE OPINION OF A HANDWRITING EXP ERT. IN THE FACTS OF THE PRESENT CASE THE SAID OPINION IS AVAILABLE AT PAGES 229 TO 239 OF THE PAPER BOOK AND REMAINED UN-REBUTTED ON RECORD. BE THAT A S IT MAY IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE A SURVEY HAVING B EEN VISITED UPON THE ASSESSEE AS PER RECORD ON 23.12.2005 WHEREIN SPECIF IC PARTICULARS OF THESE PAINTINGS IN REGARD TO THE OWNERSHIP WAS AVAILABLE ON RECORD WITH THE DEPARTMENT ALONG WITH THE RETURNS OF INCOME FOR A.Y . 2001-02, 2002-03 AND 2003-04 AS IS EVIDENT FROM PAPER BOOK PAGES 450 TO 458; 376 TO 378; 354A TO 356 RESPECTIVELY STANDS UN-REBUTTED ON RECORD. IT IS SEEN THAT OUT OF THE TOTAL AMOUNT OF RS.2,42,10,000/- WHICH WAS REALIZED FROM THE SALE OF 13 PAINTINGS, THE MOST EXPENSIVE PAINTING WHICH WAS SO LD BELONGED TO THE ARTIST LATE SHRI J. SWAMINATHAN. THE SUM RECEIVED FROM TH E SALE THEREOF AS PER ADMITTED FACTS IS RS.215 LAKH IN SUPPORT OF WHICH C LAIM THE ASSESSEE BEFORE ITA NO.769/DEL/2012 36 THE AO RELIED UPON THE CONFIRMATION OF THE SALE OF SAID PAINTING FILED BY SHRI S. HARSHVARDHANA, THE SON OF THE LATE ARTIST. THE AO HAS DOUBTED SHRI S. HARSHVARDHANAS RELATIONSHIP WITH THE LATE ARTIST S HRI J. SWAMINATHAN WHICH IDENTITY HAD BEEN ACCEPTED BY THE CIT(A) RELYING UP ON THE PHOTOCOPY OF THE PASSPORT OF SHRI HARSHVARDHANA WHICH FACT IT IS SE EN HAS ALSO NOT BEEN DEMOLISHED BY THE REVENUE AS SUCH THE CLAIM STANDS UNCONTESTED ON RECORD. IN REGARD TO THE VERY SAME PAINTING THE FACTUM OF P URCHASE OF THE SAID PAINTING BY M/S.ASSOCIATED CAPSULES PVT. LTD. BY IT S DIRECTOR SMT. KAVITA SINGH ALONG WITH COPY OF THE CHEQUE OF THE SAID AMO UNT COPY OF WHICH IS PLACED AT PAGE 270 STANDS UNCONTESTED ON RECORD. A PART FROM THE ABOVE AS THE EVIDENCE IN A NEWSPAPER CLIPPING DATED 3 RD MARCH, 1976 OF THE VERY SAME PAINTING IS AVAILABLE ON RECORD. SIMILARLY IN REGAR D TO 5 PAINTINGS OF F.N. SOUZA, 3 PAINTINGS OF SOHAN QUADRI, 2 PAINTINGS OF JAI RAM PATEL AND 2 PAINTINGS OF H.A. GADE THE FACTUM OF OWNERSHIP OF THE SAME HAS BEEN ESTABLISHED BY THE REPORT AVAILABLE WITH THE DEPART MENT PROCURED IN THE COURSE OF SURVEY AND PAINTINGS OF THESE ARTISTS FIN D MENTION AS ITEM NO. 18 (H.A. GADE); PAGE 354A AT SL. NO.39 (JAI RAM PATEL) ; AT PAGE 355 SL. NO.40 (SOHAN QUADRI); AT PAGE 355 SL. NO.56 (F.N. SOUZA) AND AT PAGE 356 SL.NO.61 (J. SWAMINATHAN). THE LEARNED AR HAS DEMO NSTRATED BY WAY OF STOCK REGISTER THAT EACH PAINTING EXIST AS PERSONAL ASSET AS A SPECIFIC NUMBER ITA NO.769/DEL/2012 37 ASSIGNED TO IT AND IS INITIALED AS RJ. THE CLAIM OF THE ASSESSEE THAT THIS WAS THE FIRST TIME THAT THE PAINTINGS IN THE PERSONAL P OSSESSION WERE PARTED WITH IN ORDER TO MEET THE COST OF CONSTRUCTION, WHICH IS SUE STANDS UNCONTESTED ON RECORD. IN THE CIRCUMSTANCES THE FACT RELEVANT TO ESTABLISH THE CLAIM OF THE ASSESSEE STANDS UNDEMOLISHED ON RECORD AND NO CASE HAVING BEEN MADE BY THE REVENUE TO SHOW WHAT MORE THE ASSESSEE WAS REQU IRED TO DO. 10.1 IT IS ALSO SEEN THAT IN THE FACTS AND CIRCUMST ANCES OF THE CASE BY WAY OF NEWSPAPER CLIPPINGS AND THE FACTS AVAILABLE ON RECO RD WHICH HAS REMAINED UNTESTED THE LD. AR HAS ATTEMPTED TO ESTABLISH THAT THE ASSESSEE BELONGS TO A FAMILY WHICH ENJOYS A GLOBAL REPUTATION IN THE WORL D OF ART AND HAS HAD A CONSTANT ABIDING INTEREST IN ART AND ARTISTS. TO B UTTRESS HIS CASE THE LD. AR HAS ADDRESSED GENERAL ARGUMENT RELYING UPON THE ARG UMENTS ADVANCED BEFORE THE CIT(A) THAT THE ASSESSEES FAMILY HAS BECAME TH E OWNERS OF PAINTINGS AT TIMES NOT ONLY BY PURCHASE BUT ALSO BY WAY OF GIFTS RECEIVED ON THE OCCASION OF BIRTH, MARRIAGE AND ANNIVERSARIES ETC. FROM THE GRATEFUL ARTISTS WITH WHOM THEY HAVE HAD LONG ASSOCIATION. IN THE FACTS OF TH E PRESENT CASE THE ASSESSEES OWNERSHIP OF THOSE PAINTINGS SOLD INHERI TED BY HIM FROM HIS FATHER/FOREFATHER STANDS UNDEMOLISHED ON RECORD AS THE FACTUM OF THE PAINTINGS OWNERSHIP IS AVAILABLE IN THE DEPARTMENT AL RECORD ITSELF AFTER THE SURVEY ON 23.12.2005 WHEREIN THE DETAILS OF THE PAI NTINGS HELD IN THE ITA NO.769/DEL/2012 38 PERSONAL CAPACITY RIGHT FROM 2001-2002 A.YEAR STAND UNREBUTTED ON RECORD. THESE DETAILS WERE WITH THE INVESTIGATION WING OF T HE DEPARTMENT AND THE EXISTENCE AS SUCH WHICH HAS BEEN ACCEPTED BY THE CI T(A) REMAINS UNCONTESTED ON RECORD. NO EVIDENCE OR ARGUMENT AS TO HOW THEY HAVE NO RELEVANCE OR WHY THEY SHOULD BE DISCARDED HAS BEEN LED BY THE REVENUE. THUS IN THE FACTS OF THE PRESENT CASE THE EVIDENCES OF OWNERSHIP OF THE SAID PAINTINGS NOT HAVING BEEN DEMOLISHED AS HAVING BEEN ACQUIRED BY VIRTUE OF INHERITANCE AND SUPPORTING EVIDENCES OF THE NEWSPAP ER CLIPPINGS CONFIRMATION BY A SON OF THE LATE ARTIST AND CONFIR MATION OF SALE BY THE BUYERS PLACED AT PAGES 243 TO 277 OF THE PAPER BOOK , WE ARE OF THE VIEW THAT THE CIT(A) WAS FULLY JUSTIFIED IN COMING TO THE CON CLUSION THAT THE ASSESSEE WAS THE OWNER OF THE PAINTINGS IN HIS PERSONAL CAPA CITY AND THE RECORD QUA PERSONAL PAINTINGS AND LIST OF PAINTINGS BELONGING TO THE GALLERY WAS BEING SEPARATELY SHOWN AND MAINTAINED. THIS FINDING ALSO STANDS UNCONTESTED ON RECORD. 10.3 ACCORDINGLY FOR THE DETAILED REASONS GIVEN HER EINABOVE, WE FIND NO INFIRMITY IN THE FINDING AND CONCLUSION ARRIVED AT BY THE LEARNED CIT(A) IN HIS REASONING AND FINDING. ACCORDINGLY BEING SATIS FIED WITH THE SAME, THE DEPARTMENTAL GROUNDS ARE DISMISSED AND THE IMPUGNED ORDER IS UPHELD. 11. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS DISMISSED. ITA NO.769/DEL/2012 39 12. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON 3 0 TH NOVEMBER, 2012. SD/- SD/- (T.S. KAPOOR) (DI VA SINGH) ACCOUNTANT MEMER JUDICIAL M EMBER DATED: 30 TH NOVEMBER, 2012. COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.