RAJIB V. COMMNR OF I.T.

SJC/107/1997

AI Insights

The case involves multiple petitioners challenging the order of the Income Tax Appellate Tribunal, Cuttack, which had sustained the order of the Commissioner of Income Tax that silver utensils were capital assets, thus attracting capital gains tax. The main legal question was whether these utensils, used for personal or household purposes, should be considered personal effects and exempt from capital gains tax. The court examined various precedents and interpretations of 'personal effects' under Section 2(14) of the Income Tax Act, ultimately deciding that the utensils were indeed personal effects, referencing decisions from the Supreme Court and other High Courts that supported this interpretation.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 742597 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 10-04-2019
• Assessment Year: misc
• Other Referred Cases: Commissioner of Income-Tax, Bombay City-VIII v. Sitadevi N. Poddar, H.H. Maharaja Rana Hemant Singhji v. CIT, Smt. Shree Kumari Mundra v. Commissioner of Income Tax
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Keywords: Capital gains tax; Cuttack; Income tax appellate tribunal; Personal effects; Silver utensils
• Section: 2(14)

Judgement Text

" SJC Nos.110, 105, 106, 107, 108, 109 and 111 of 1997 8. 10.04.2019 Heard Sri Ray, learned counsel for the petitioners and Sri T.Satpathy, learned Standing Counsel for Income Tax for the opposite party in all the SJCs. By way of these S.J.Cs., the petitioner in all the S.J.Cs challenges the order of the Income Tax Appellate Tribunal, Cuttack being ITA No.421/CTK/1991. This Court while admitting S.J.C.Nos.105, 106, 107, 110 and 111 of 1997 on 4.5.2000 admitted all above matters on common question of law reproduced herein below: “Whether on the facts and in the circumstances of the case, the Tribunal is legally correct to sustain the order of the C.I.T. that silver utensils being capital assets in the hands of the assessee, the sales would attract capital gains tax?” However S.J.C.No.109 of 1997 has not been admitted as of now. For common issue and point of law involved in the cases already admitted and the not admitted case, on consent of parties all the petitions indicated hereinabove are taken up together and decided by this common order. Counsel for the appellants contended that the utensils, which were held by the assessee were described inAnnexure-1. For the ready reference, the Annexure-1 in each of the matters is reproduced hereunder. In SJC 110 of 1997 DETAILS OF SILVER UTENSILS IN POSSESSION OF MRS.T.V.KAUR DURING ASSESSMENT YEAR 1970-71 --------------------------------------------------------------------------------------------------- Sl.No. Items No. of Weight in Pcs. Kgs. ----------------------------------------------------------------------------------------------- 1. Big Thaals 5 6.00 2. Dinner Plates 15 13.50 3. Small Side Plates 15 3.50 4. Glasses 15 5.30 W.P.( C.M.P. No.1360 of 2015 W.P.( SJC No.110 of 1997 -2- 5. Katories 40 9.55 6. Table Spoons 15 1.35 7. Desert Spoons 15 0.09 8. Rice Platters 2 3.80 9. Curry dishes (Big) 1 1.10 10. Curry Dishes (Small) 2 1.50 11. Water Jugs 1 0.80 12. Service Trays (Big) 1 1.40 13. Service Trays (small) 2 0.90 14. Butter Dishes 1 0.50 15. Toast Racks 1 0.40 16. Service Spoons 4 0.70 17. Snack Bowls 10 3.80 Total 55.00 In SJC 105 of 1997 DETAILS OF SILVER UTENSILS IN POSSESSION OF MR.TAJENDER SINGH DURING ASSESSMENT YEAR 1970-71 --------------------------------------------------------------------------------------------------- Sl.No. Items No. of Weight in Pcs. Kgs. ----------------------------------------------------------------------------------------------- 1. Tea Set for Six Persons 1 set 2.6 2. Ice Cream Set for Ten persons 1 set 2.3 3. Sharabat Set for Six persons 1 set 2.4 4. Bear Mugs 6 2.2 5. Fruit Baskets 2 1.6 6. Dry Fruit Trays 2 2.4 7. Masala Dabbas 2 1.8 8. Big Thaals 10 12.0 9. Dinner Plates 20 16.0 10. Small Side Plates 20 4.0 11. Glasses 20 7.6 12. Katories 60 15.0 13. Table Spoons 20 1.7 14. Desert Spoons 20 1.7 15. Rice Platters 2 3.3 16. Curry Dishes(Big) 4 4.5 17. Curry Dishes(Small) 2 1.8 18. Water Jugs 2 1.7 19. Service Trays Large 2 2.6 20. Service Trays Small 1 0.9 Total - 88.0 -3- In SJC 106 of 1997 DETAILS OF SILVER UTENSILS IN POSSESSION OF MR.TAJENDER SINGH DURING ASSESSMENT YEAR 1970-71 --------------------------------------------------------------------------------------------------- Sl.No. Items No. of Weight in Pcs. Kgs. ----------------------------------------------------------------------------------------------- 1. Tea Set for Six Persons 1 set 2.6 2. Ice Cream Set for Ten persons 1 set 2.3 3. Sharabat Set for Six persons 1 set 2.4 4. Bear Mugs 6 2.2 5. Fruit Baskets 2 1.6 6. Dry Fruit Trays 2 2.4 7. Masala Dabbas 2 1.8 8. Big Thaals 10 12.0 9. Dinner Plates 20 16.0 10. Small Side Plates 20 4.0 11. Glasses 20 7.6 12. Katories 60 15.0 13. Table Spoons 20 1.7 14. Desert Spoons 20 1.7 15. Rice Platters 2 3.3 16. Curry Dishes(Big) 4 4.5 17. Curry Dishes(Small) 2 1.8 18. Water Jugs 2 1.7 19. Service Trays Large 2 2.6 20. Service Trays Small 1 0.9 Total - 88.0 In SJC 107 of 1997 DETAILS OF SILVER UTENSILS IN POSSESSION OF MRS.RAJBIR KAUR DURING ASSESSMENT YEAR 1974-75 --------------------------------------------------------------------------------------------------- Sl.No. Items No. of Weight in Pcs. Kgs. ----------------------------------------------------------------------------------------------- 1. Dinner Plates 10 8.50 2. Small Side Plates 10 2.35 3. Glasses 10 3.55 4. Katories 20 4.90 5. Table Spoons 10 0.90 6. Desert Spoons 10 0.60 7. Rice Platters 1 1.90 8. Curry Dishes (Big) 2 2.20 9. Curry Dishes (Small) 2 1.50 10. Water Jugs 1 0.80 11. Service Trays (Big) 1 1.50 12. Service Trays (small) 2 0.90 -4- 13. Toast Racks 1 0.60 14. Service Spoons 4 0.80 Total - 31.00 In SJC 108 of 1997 LIST OF SILVER UTENSILS WITH MR.GURDAYAL SINGH AS ON 31.12.69. --------------------------------------------------------------------------------------------------- Sl.No. Items No. of Weight in Pcs. Kgs. ----------------------------------------------------------------------------------------------- 1. Tea Set for Six Persons 1 set 2.4 2. Ice Cream Set for Ten persons 1 set 2.2 3. Sharabat Set for Six persons 1 set 2.3 4. Bear Mugs 6 2.1 5. Fruit Baskets 2 1.9 6. Dry Fruit Trays 2 2.2 7. Masala Dabbas 1 1.1 8. Big Thaals 8 9.6 9. Dinner Plates 20 17.0 10. Small Side Plates 20 4.7 11. Glasses 18 7.1 12. Katories 55 13.6 13. Table Spoons 20 1.8 14. Desert Spoons 20 1.2 15. Rice Platters 2 1.2 16. Curry Dishes(Big) 4 4.4 17. Curry Dishes(Small) 2 1.5 18. Water Jugs 2 1.6 19. Service Trays (Big) 2 2.8 20. Service Trays Small 3 1.4 21. Butter Dishes 1 0.5 22. Toast Racks 2 1.2 23. Service Spoons 6 1.6 Total - 88.0 In SJC 109 of 1997 LIST OF SILVER UTENSILS WITH MR.GURDAYAL SINGH AS ON 31.12.69. --------------------------------------------------------------------------------------------------- Sl.No. Items No. of Weight in Pcs. Kgs. ----------------------------------------------------------------------------------------------- 1. Tea Set for Six Persons 1 set 2.4 2. Ice Cream Set for Ten persons 1 set 2.2 3. Sharabat Set for Six persons 1 set 2.3 4. Bear Mugs 6 2.1 5. Fruit Baskets 2 1.9 -5- 6. Dry Fruit Trays 2 2.2 7. Masala Dabbas 1 1.1 8. Big Thaals 8 9.6 9. Dinner Plates 20 17.0 10. Small Side Plates 20 4.7 11. Glasses 18 7.1 12. Katories 55 13.6 13. Table Spoons 20 1.8 14. Desert Spoons 20 1.2 15. Rice Platters 2 1.2 16. Curry Dishes(Big) 4 4.4 17. Curry Dishes(Small) 2 1.5 18. Water Jugs 2 1.6 19. Service Trays (Big) 2 2.8 20. Service Trays Small 3 1.4 21. Butter Dishes 1 0.5 22. Toast Racks 2 1.2 23. Service Spoons 6 1.6 Total - 88.0 In SJC 111 of 1997 DETAILS OF SILVER UTENSILS IN POSSESSION OF MR.RAJINDER SINGH DURING ASSESSMENT YEAR 1970-71 --------------------------------------------------------------------------------------------------- Sl.No. Items No. of Weight in Pcs. Kgs. ----------------------------------------------------------------------------------------------- 1. Tea Set for Six Persons 1 set 2.9 2. Ice Cream Set for Ten persons 1 set 2.6 3. Sharabat Set for Six persons 1 set 2.8 4. Bear Mugs 6 2.2 5. Fruit Baskets 2 1.8 6. Dry Fruit Trays 2 2.3 7. Masala Dabbas 2 1.4 8. Big Thaals 10 12.0 9. Dinner Plates 20 18.0 10. Small Side Plates 20 4.2 11. Glasses 20 8.0 12. Katories 60 15.0 13. Table Spoons 20 1.8 14. Desert Spoons 20 1.2 15. Rice Platters 2 3.8 16. Curry Dishes(Big) 4 4.5 17. Curry Dishes(Small) 2 1.8 18. Water Jugs 2 1.7 Total - 88.0 Sri Ray further submitted that while Assessing Officer has accepted that it is not chargeable to capital gain tax as they are -6- personal effects of the assessee, however, the Commissioner taking into account that the utensils are not for personal use under Section 2(14) of the Income Tax Act which was carried in Appeal and the Tribunal vide common order has dismissed the appeals involved herein. Counsel for the petitioner mainly contended that in view of definition of Section 2(14) of the Old Act, sub-clause (ii) there appears there is wrong determination of the issue by the tribunal. For better appraisal, the provision reproduced herein is as follows:- “For personal effects, that is to say, movable property (including wearing apparel and furniture, but excluding jewellery) held for personal use by the assessee or any member of his family dependent on him. Explanation-For the purposes of this sub clause, “Jewellery” includes- (a) Ornaments made of gold, silver, platinum or any other precious metal or any alloy containing one or more of such precious metals, whether or not containing any precious or semi-precious stone, and whether or not worked or sewn into any wearing apparel; (b) Precious or semi-precious stones, whether or not set in any furniture, utensils or other article or worked or sewn into any wearing apparel;) Sri Ray thus contended that the issue is well considered by the different High Courts and even in Supreme Court for which he has relied upon the decision in (1998) Vol.231 ITR 793, more particularly reproduced paragraph- vide page-796 paragraph-2 and other paragraph-1 of page 797. -7- “Personal effects which are excluded from capital assets include jewellery for personal use. We have to consider whether jewellery held for personal use by the assessee would cover heirloom jewellery of the assessee. Heirloom jewellery is also meant for the personal use of the assessee. it is, however, not meant for daily use but for use on ceremonial occasions. This does not deprive such jewellery of its character as jewellery meant for personal use. For example, clothes meant for use at weddings or formal occasions are not used daily. Yet they are stitched for personal use of the wearer. As such, they would form a part of his personal effects. Heirloom jewellery may be passed down from generation to generation. But it is nevertheless for the personal use of the owner. The High Court has rightly held that the frequency of use of the property must necessarily depend on the nature of the property. Merely because from the nature of the property, it can be used on ceremonial occasions only, it does not follow that the property is not held by the assessee for personal use. Jewellery is expressly included in the personal effects of an assessee as per Section 2(14) as it stood at the relevant time. In the case of Commissioner of Income-Tax, Bombay City-VIII v. Sitadevi N. Poddar (148 ITR 506) (to which one of us was a party) the Bombay High Court considered a case where the assessee sold certain silver utensils of the type which were used in the kitchen or in the dinning room. The assessee contended that the silver articles were the personal effects of the assessee and hence were not capital assets within the definition of Section 2(14) of the Income-Tax Act, 1961. Kania, J. (as he then was,) distinguished the decision in the case of H.H. Maharaja Rana Hemant Singhji (supra) and held that \"personal effects\" would include articles which were intimately and commonly used by the assessee. Personal effects need not be confined only to those article which were -8- worn on the person of the assessee. The inclusion, for example, of furniture would negative such a contention.” Counsel for the petitioner has also riled upon the Gujarat High Court judgment in (2001) 248 ITR 262 more particularly paragraph at page 16 of the paper book. “ In the case before us, the items which are described in the order of the Tribunal are all different articles to be used on dinner table. There are in all 790 pieces of such dinner sets. The silverwares are articles to be used on the dinner table. They were obviously intended for personal use of the assessee and his family members. Such silver dinner items were not frequently used is a fact totally irrelevant. As held by the Supreme Court in the case of Maharani Ushadevi (supra), even if the personal effects were occasionally used as and when dinners were arranged for the family and guests, it would nonetheless be the 'personal effects' of the assessee. We find no justification for the Tribunal to remand the matter to the AO to ascertain the total number of members of the assessee's family and identify those who are dependent upon him to allow deduction in respect of value of only 1 set each for the assessee and the said members of his family. It is difficult to understand why there should be such rationing of personal effects of the assessee for the purpose of giving benefit of the exclusion clause contained in s. 2(14). If the assessee had more than 1 dinner sets which were intended to be used by him and his family members, as and when dinner parties are arranged, there is nothing in the provisions of s. 2(14) to assign such restricted meaning to the words \"personal effects\" used in clause (ii) of s. 2(14) of the IT Act. On the facts found by the Tribunal itself, the test applied by the Supreme Court is satisfied. The dinner set items/articles were intended for personal use of the assessee and his family members and guests.” -9- He has also relied upon a decision of Calcutta High Court in the case of Smt. Shree Kumari Mundra v. Commissioner of Income Tax (1997) 228 ITR 548, more particularly running page 25 from page- 555 “From the above authorities, we find that items, to be classified as personal effects would have to be considered in the following light. Some degree of connection between the person of the assessee and the items is necessary. The assessee need not necessarily be able to wear the item on his or her person. Household items and utensils can also be personal effects although very expensive decorative pieces might not be classified as such. A distinction is to be borne in mind as between personal effects and assets intended for use in business or profession. It is on an assessment of these and other attendant relevant factors that a decision has to be reached whether the items which were sold were personal effects within the meaning of Section 2, Clause (14) or not. He also relied on another decision of Bombay High Court reported in 148 ITR 506 more particularly page 29 and at page 30. The later observations of that paragraph” “The facts giving rise to this application are as follows : The assessee is an individual. During the previous year relevant to the assessment year 1975-76, the assessee sold certain silver utensils for Rs. 4,05,959. These utensils were utensils of the type which are used in the kitchen or on the dining table as found by the Tribunal, although one must confess the weight of the utensils is somewhat staggering. The assessee had not declared details of these utensils in the original return, but she declared the same in a revised return filed before the assessment was completed. The contention of the assessee was that the aforesaid silver utensils were personal effects and were not capital assets within the making of the said -10- expression in s. 2(14) of the I.T.Act, 1961, (referred to hereinafter as \"the said Act\"). The ITO concerned accepted this contention of the assessee and did not include any amount out of the sale proceeds of the said silver utensils as capital gains in the total income. Thereafter, the Commissioner of Income-tax started proceedings under of the said Act on the ground that the silver utensils were not personal effects and they were capital assets on the date of the sale and, hence, the capital gain which arose to the assessee on such sale was liable to be included in the taxable income. He gave notice to the assessee that he proposed to review the orders passed by the ITO, as aforesaid. The assessee gave a reply to this notice and, after considering the reply, the Commissioner dropped the proceedings. Thereafter, the ITO reopened the assessment of the assessee under s. 147(b). The material part of the reasoning given by him on March 27, 1980, is that the Supreme Court in H H Maharaja Rana Hemant Singhji v. CIT had held that \"silver articles are not deemed to be `effects' meant for personal use.\" The ITO took the view that this information came to his knowledge subsequent to the completion of the original assessment. The assessee objected to the reopening but that objection was overruled. The ITO held that the aforesaid silver utensils were not personal effects and taxed the gain on the sale of the same in the hands of the assessee on that footing. On appeal by the assessee, the order was confirmed by the Commissioner (Appeals) and the assessee appealed to the Tribunal. xxx xxx xxx xxx xxx xxx xxx xxx xxx The later observations in that judgment show that, according to the Supreme Court, what was meant by \"personal -11- effects\" was an article which was intimately and commonly used by the assessee. It is, however, clear on a perusal of that judgment that it was never intended to be laid down therein that the term \"personal effects\" should be confined to articles, which were worn on the person of the assessee. All that was held was that the articles to be considered personal effects must be used personally by the assessee. That would be apparent from the definition of the term \"capital assets\" referred to by the Supreme Court which clearly shows that even furniture could be said to be a movable held for personal use. In fact, even before the said decision of the Supreme Court in G S Poddar v. CWT [1965] 57 ITR 207 (Bom), a Division Bench of this court had taken a view that the expression \"intended for the personal or household use\" did not mean capable of being intended for personal use or household use. It meant normally, commonly and ordinarily intended for personal or household use. This decision was already before the ITO when he completed the original assessment and one fails to see how, in these circumstances, any ITO, who read the aforesaid decision of the Supreme Court, reasonably could say that he came into possession of information thereby, namely, by the decision of the Supreme Court, that gave him reason to believe that income chargeable to tax has escaped assessment in the present case. In these circumstances, in our view, the answer to the third question sought to be referred is self-evident and it is in the affirmative, i.e., in favor of the assessee. Hence, there would be no purpose in directing the Tribunal to refer that question to us for determination. In view of this, question Nos. 1 and 2 become academic and there is no point in directing the Tribunal to refer those questions.” Further relying also on judgments reported in (1986) Vol.159 ITR 130 of Madhya Pradesh High Court and the judgment in (1990) Vol.185 ITR 493 of Calcutta High Court, Sri Ray contended -12- that the utensils are used for the personal use therefore it may not be taken into consideration as capital assets. Counsel for the Department has relied upon the decision of H.H.Maharaj Rana Hemant Singhji v. Commissioner of Income Tax (1976) 103 ITR 61 (SC) and the decision of Madras High Court reported in (1985) 20 Taxman 52 (Mad.) more particularly paragraph-3. “Out of the total silver articles (845), weighing totally 237.856 Kg., the ITO held that 96.259 kg, of silver articles could be taken to have been held by the assessee for personal use and the balance of 141.597 kg. should be treated as capital gains. It is seen from the order of the Tribunal that the assessee possessed more than one unit of the same type of articles, for example, there were 50 silver plates for serving betel leaves, and 100 cups, apart from 200 plates for serving curd. The Tribunal, therefore, held that the possession of such a large number of the same type of silver articles could not be taken to have been held by the assessee for personal use and that, therefore, the ITO was justified in treating the portions of the same articles as having been kept for personal use and the rest of the articles as falling within the definition of section 2(14). According to the learned counsel for the assessee, having regard to the nature of the silver articles sold, all the articles, without reference to their number, should be taken to have been kept by the assessee for personal use. Thus, according to the learned counsel for the assessee, whenever the assessee says that it has kept an article for personal use, it should straightway be accepted by the revenue. We are not inclined to agree with the said submissions of the learned counsel for the assessee. Irrespective of the claim put forward by the assessee, that he is having articles for personal use, the revenue has to investigate whether the articles are required for the personal use of the assessee as claimed by the assessee or whether -13- the articles are in excess of the requirement of the personal use of the assessee so that it will fall within the definition of capital assets in section 2(14). Section 2 (14) defines capital asset as follows: “Capital asset” means property of any kind held by an assessee, whether or not connected with his business or profession, but does not include- (i) Any stock-in-trade, consumable stores or raw materials held for the purposes of his business or profession; (ii) Personal effects, that is to say, movable property (including wearing apparel and furniture, but excluding jewllery) held as personal use by the assessee or any member of his family dependent on him.” Admittedly, in this case the various items of silver articles sold will fall within the definition of capital asset, though they will stand excluded, if it is found that the materials have been kept by the assessee for personal use. The silver articles sold by the assessee during the year in question, as already stated, are 845 items and it is not possible to treat all these items as having been kept by the assessee for personal use. It is for this reason that the assessing authority took each items of silver articles and treated as reasonable portion of the same as having been held by the assessee for personal use and such apportionment has been held by the Tribunal as being reasonable. We are also of the view that in a case like this, where the assessee claims a very large number of items of silver articles as having been held for personal use, the assessing authority has naturally to find out as to what are the articles which could reasonably be held to have been kept by the assessee for personal use. The -14- allocation of the articles for personal use in this case by the ITO appears to be quite reasonable and this is also the view taken by the Tribunal. In fact, we find that the Supreme Court, while interpreting the provision of section 2(4A) (ii) of the Indian Income-tax act, 1922 which corresponds to section 2(14) (h) of the 1961 Act, in H.H.Maharani Rana Hemant Singhji v. CIT (1976) 103 ITR 61 (SC), held that it was only those articles commonly and ordinarily intended for personal or household use which would qualify as personal effects. In that case the Supreme Court was of the view that a close scrutiny of the context in which the expression ‘personal use’ occurs shows that only those effects can reasonably be said to be personal which pertain to the assessee personally, in other words, an intimate connection between the effects and the persons of the assessee must be shown to exit to render them personal effects, and that in the intention of the Legislature appears to be clear that only those articles should be included in the definition of personal effects which were intimately and commonly used by the assessee. In this case, if we adopt he test laid down by the Supreme Court in the above case, the large number of the same type of silver articles cannot be taken to have been held by the assessee for personal use and they cannot, therefore, be taken to come within the expression ‘personal effects’ occurring in section 2(14) (ii). The Tribunal has chosen to follow the said decision of the Supreme Court in its conclusion that, except to the extent indicated by the ITO, the other silver articles sold cannot be taken to fall within the scope of the expression ’personal effects’. We are, therefore, of the view that the Tribunal has come to the right conclusion. The tax case -15- petition is, therefore dismissed. There will be no order as to costs. Sri Satpathy therefore contended that the suo motu revision which was taken and the language used by the Commissioner in paragraphs 7 and 9 which is reproduced hereunder and therefore, no interference is called for: “7. On a reference to the assessment records for the A/Ys.1987-88 and 1988-89 it was revealed that the assessee disclosed silver utensils weighing 88 kgs in the year 1986 under the Voluntary Declaration of Income and Wealth Scheme. The AO while making an order U/s 143(3) for both the Asst. years was prescribed by definition of “Capital Asset” u/s 2(14) of the I.T.Act, basing on the decision of Bombay High Court reported in 1956 ITR P.448 and the decision of Madhya Pradesh High Court in the case of H.H. Maharani Usha Devi –vs- C.I.T., Bhopal reported in 133 ITR P.43. It is pertinent to state that there is no decision of Orissa High Court or I.T.A.T., Cuttack Bench, Cuttack on this point. The only authoritative guide-line available is the decision of the Supreme Court in the case of Maharaj Rana Hemant Singhji- VS-CIT (1976) reported in 103 ITR P.61. 9. The Hon’ble Supreme Court while laying down the principle in the case of Maharaj Rana Hemant singhji – VS- CIT (103 ITR P.61) examined the ordinary meaning of personal effect. The relevant extract of the said judgment is cited below: “ The expression “Personal use” occurring in Clause (ii) of the above quoted provision is very significant. A close scrutiny of context in which the expression occurs shows that only those effects can legitimately be said to be personal -16- which pertains to the assessee’s persona. In other words, an intimate connection between the effects and the person of the assessee must be shown to exist to render them “personal effect” The enumeration of articles like wearing apparel, jewellery and furniture mentioned by way of illustrations in the above-quoted definition of “personal effect” also shows that the legislature intended only those articles to be included in the definition which were intimately and commonly used by the assessee.” We have heard learned counsel for both the sides and taking into consideration the utensils, which are reflected in Annexure-1 of each of the S.J.Cs., there remain no doubt that items involved therein are for the personal use and it is described as a joint family or even a partnership firm, they have decided to partition the family property. In that view of the matter and in view of the observations made by the Supreme Court in case of Commissioner of Income Tax v. H.H.Maharani Usha Devi, reported in (2001) 248 ITR 262 which has been followed by Calcutta High Court, Bombay High Court and Gujarat High Court which is required to be considered in favour of the assessee and it is to be held as personal effects of the assessee and against the department. The applications thus succeed. ……………………………. K.S.JHAVERI, (CHIEF JUSTICE) ……………………………. BISWANATH RATH, (JUDGE) Sks & Sp. "