Om Parkash Malik, Chandigarh V. ITO, Chandigarh

ITA 168/CHANDI/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95764 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 21-10-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 12-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MRS MEENAKSHI VOHRA
• Assessee Lawyers: ASHOK GOYAL
• Section: 54; 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO.168/CHD/2013 (ASSESSMENT YEAR : 2009-10) SAVIITA MALIK, LEGAL HEIR OF VS. THE INCOME OFFICER, LATE SH.OMPARKASH MALIK, WARD 4(1), C/O A.K. SALES, KEROSENE DEPOT, CHANDIGARH. SECTOR 37, CHANDIGARH. PAN: ADJPM4695F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ASHOK GOYAL RESPONDENT BY : MRS.MEENAKSHI VOHRA, DR DATE OF HEARING : 21.10.2015 DATE OF PRONOUNCEMENT : 15.12.2015 O R D E R PER RANO JAIN, A.M . : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), CHANDIGARH DATED 4.12.2012 FOR ASSESSMENT YEAR 2009-10. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD SOLD KOT HI NO.107, SECTOR 6, PANCHKULA AND HAD DECLARED LONG T ERM CAPITAL GAIN ON THE SALE OF THIS PROPERTY AT RS.8,2 0,906/- COMPUTING THE SAME AS UNDER : 2 LONG TERM CAPITAL GAINS KOTHI NO.107, SECTOR 6, PANCHKULA AMOUNT AMOUNT (IN RS.) (IN RS.) SALES CONSIDERATION 2,29,54,000 LESS: INDEXED COST INITIAL COST 3,10,000 F.Y. 1981-82 310000/100X582 18,04,200 F.Y. 2001-02 500000/426X582 6,83,099 F.Y. 2003-04 2000000/463X582 25,14,039 F.Y. 2005-06 500000/497X582 6,85,513 F.Y. 2006-07 4500000/519X582 50,46,243 BALANCE 1,06,33,094 1,23,20,906/- DEDUCTION U/S 54 1,15,00,000 LONG TERM CAPITAL GAINS. 8,20,906 3. THE ASSESSING OFFICER ASKED THE ASSESSEE ABOUT THE BASIS OF INITIAL COST, EVIDENCE REGARDING INVES TMENT IN THE IMPROVEMENT OF THE HOUSE PROPERTY AS CLAIMED BY THE ASSESSEE AND BASIS OF DEDUCTION UNDER SECTION 54 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). THE ASS ESSEE MADE DETAILED REPLY. HOWEVER, PARTLY ACCEPTING THE SAME, THE ASSESSING OFFICER COMPUTED THE LONG TERM CAPITA L GAIN ON SALE OF THIS PROPERTY AT RS.64,44,824/- AS FOLLOWS :- LONG TERM CAPITAL GAINS, AMOUNT AMOUNT KOTHI NO. 107, SECTOR 6, PANCHKULA (IN RS.) (IN RS. ) SALES CONSIDERATION 2,29,54,000/- LESS: INDEXED COST INITIAL COST 250000/- F.Y. 1981-82 250000/100*582 14,55,000/- F.Y. 2001-02 400000/426*582 5,46,479/- F.Y. 2003-04 1847373/463*582 23,22,184/- F.Y. 2005-06 500000/497*582 6,85,513/- BALANCE 50,09,176/- 1,79,44,824/- DEDUCTION U/S 54 1,15,00,000 LONG TERM CAPITAL 64,44,824/ - GAINS 3 4. IN THIS WAY, AN ADDITION OF RS.56,23,918/- WAS MADE BY THE ASSESSING OFFICER. 5. THE ASSESSEE WENT IN APPEAL BEFORE THE LEARNED CIT (APPEALS) AND EXPLAINED THAT IN THE FINANCIAL Y EAR 2001-02 THE ASSESSEE HAS CLAIMED COST OF IMPROVEMEN T AT RS.5 LACS, THE SOURCE OF WHICH WAS EXPLAINED TO BE AN AMOUNT OF RS.4 LACS OF LOAN AND REMAINING RS.1 LAC AS MARGIN MONEY OUT OF HIS PAST SAVINGS. THE ASSESSIN G OFFICER HAD ACCEPTED THE AMOUNT OF RS.4 LACS TO THE EXTENT OF LOAN TAKEN BY THE ASSESSEE AND HAD NOT ACCEPTED THE EXPLANATION OF THE ASSESSEE REGARDING THE REMAINING RS.1 LACS. IN THE FINANCIAL YEAR 2003-04, AN AMOUNT OF RS.20 LACS WAS SPENT BY THE ASSESSEE, THE SOURCE OF WHICH WAS EXPLAINED TO BE AN AMOUNT OF RS.18,47,373/- DISPERS ED DURING THE YEAR OUT OF LOAN OF RS.20, 40,000/- AND THE REMAINING AMOUNT OUT OF HIS PAST SAVINGS. THE ASS ESSING OFFICER HAD ACCEPTED THE AMOUNT TO THE TUNE OF RS.18,47,373/- AND DID NOT ACCEPT THE REMAINING AMO UNT OUT OF PAST SAVINGS. IN THE FINANCIAL YEAR 2005-06 , THE ASSESSEE HAS SPENT RS.5 LACS WHICH WAS ACCEPTED BY THE ASSESSING OFFICER. ANOTHER AMOUNT OF RS.45 LACS WA S SPENT BY THE ASSESSEE IN FINANCIAL YEAR 2006-07, FO R WHICH THE ASSESSEE GAVE EXPLANATION THAT HE HAS BORROWED AN AMOUNT OF RS.1 CRORE FROM ICICI BANK, CHANDIGARH JOINTLY IN THE NAMES OF SELF, AJAY MALIK, SON, SAVI TA MALIK, WIFE AND M/S A.K. SALES AND CREDITED AN AMOUNT OF RS.65 LACS ON 10.10.2006 IN THE BANK 4 ACCOUNT NO.5122 IN PUNJAB & SIND OF M/S A.K.SALES A ND FURTHER AN AMOUNT OF RS.6 LACS ON 15.10.2006, WHICH WAS DIRECTLY CREDITED IN TERM LOAN ACCOUNT MAINTAINED W ITH PUNJAB & SIND BANK. THE REMAINING AMOUNT OF RS.28,,99,822/- AFTER ADJUSTING PROCESSING CHARGES WAS CREDITED IN PUNJAB & SIND BANK CC ACCOUNT ON 30.10.2006. IT WAS SUBMITTED THAT THE ASSESSEE HAD WITHDRAWN THESE AMOUNTS ON DIFFERENT DATES, WHICH W AS DEBITED TO HIS PERSONAL IMPREST ACCOUNT DURING THE YEAR. THE COPIES OF THE IMPREST ACCOUNT IN THE BOOKS OF M /S A.K.SALES AND M/S HAPPY SERVICE STATION, IN WHICH T HE ASSESSEE WAS A PARTNER WERE FILED. IT WAS FURTHER SUBMITTED THAT THE CASH IN HAND AS ON 31.3.2006 IN THE BOOKS OF M/S HAPPY SERVICE STATION WAS RS.34,55,000 /- AND IN THE BOOKS OF M/S A.K. SALES THE BALANCE WAS RS.13,58,556/-, WHEREAS CASH BALANCE AS ON 31.3.20 07 IN THE BOOKS OF M/S HAPPY SERVICE STATION WAS RS.3,52, 286/- AND IN THE BOOKS OF M/S A.K. SALES, THE BALANCE WAS RS.1,49,007/-. IN THIS WAY, IT WAS EXPLAINED THAT BEFORE AVAILING THE LOAN OF RS.1 CRORE, THE ASSESSEE WITHD REW THE SUBSTANTIAL AMOUNTS FROM THE FIRM ON DIFFERENT DATE S BY AVAILING THE CASH CREDIT LIMIT OF THE FIRM M/S A.K. SALES, WHICH RESULTED IN DEBIT BALANCE AT RS.63,56,852/- A S ON 10.10.2006 IN CC ACCOUNT. SINCE THIS CC ACCOUNT WA S IN THE NAME OF THE FIRM AND BANKERS WERE PRESSING HARD TO SQUARE-UP THIS LOAN, THEREFORE THE ASSESSEE APPROAC HED ICICI BANK FOR GRANT OF PERSONAL LOAN AGAINST THE PROPERTY OF FAMILY IN SECTOR 28, CHANDIGARH. 5 THE BANKERS SANCTIONED PERSONAL LOAN OF RS.1 CRORE BY DISPERSING THE AMOUNTS IN JOINT NAMES OF FOUR PERSO NS I.E. THE ASSESSEE, HIS SON, HIS WIFE AND THE FIRM M/S A. K. SALES. THE AMOUNT WAS FINALLY CREDITED IN THE FIR MS ACCOUNT RESULTING TO SQUARE-UP A LOAN/WITHDRAWALS F ROM THE CC ACCOUNT OF THE FIRM, WHICH WERE IN FACT TAK EN BY THE ASSESSEE. 6. AFTER CONSIDERING THE TOTALITY OF SUBMISSIONS MADE BY THE ASSESSEE, THE LEARNED CIT (APPEALS) CON FIRMED THE ACTION OF THE ASSESSING OFFICER IN ESTIMATING T HE INITIAL COST OF RS.2,50,000 AS AGAINST RS.3,10,000 CLAIMED BY THE ASSESSEE. FURTHER, FOR FINANCIAL YEAR 2001-02, THE EXPLANATION OF THE ASSESSEE REGARDING RS.1 LACS WAS NOT FOUND TO BE ACCEPTABLE. FOR FINANCIAL YEAR 2003-04 THE E XPLANATION OF THE ASSESSEE REGARDING AN AMOUNT OF RS.1,52,627/ - WAS ALSO NOT ACCEPTED. FOR FINANCIAL YEAR 2006-07, THE EXPL ANATION OF THE ASSESSEE REGARDING RS.45 LACS WAS ALSO NOT ACCE PTED BY THE LEARNED CIT (APPEALS) HOLDING THAT THE EXPLANATION OF THE ASSESSEE THAT A LOAN WAS TAKEN BY HIM FROM ICICI BA NK IS NOT ACCEPTABLE IN VIEW OF THE FACT THAT THE LOAN WAS IN THE NAME OF SHRI AJAY MALIK, SON OF THE ASSESSEE AND THE ASSESS EE HAS NOT FILED ANY EVIDENCE IN THIS REGARD. THE BENEFIT OF THIS ADDITION OR ALTERATION CANNOT BE GIVEN TO HIM. FOR THIS PU RPOSE, COPY OF APPLICATION FORM AND AGREEMENT PERTAINING TO THE LOAN TAKEN OF RS.1 CRORE WAS CALLED FOR FROM ICICI BANK, SECTO R 9, CHANDIGARH BY THE ASSESSING OFFICER UNDER SECTION 1 33(6) OF THE ACT. FROM THE PERUSAL OF THIS, THE LEARNED 6 CIT (APPEALS) FORMED A VIEW THAT THE LOAN COULD NOT HAVE BEEN USED FOR ANY PURPOSE OTHER THAN THE BUSINESS WITHOUT PRIOR PERMISSION OF THE BANK. IN THIS WAY, THE LEARNED CIT (APPEALS) CONFIRMED THE ORDER OF THE AS SESSING OFFICER. 7. AGGRIEVED BY THIS ORDER, THE ASSESSEE HAS COME UP IN APPEAL BEFORE US RAISING FOLLOWING GROUNDS : 1. THAT THE LEARNED C1T(A) HAS ERRED IN DISMISSING THE APPEAL AND UPHOLDING THE ACTION OF THE ASSESSING OFFICER I N ASSESSING LONG TERM CAPITAL GAIN AT RS.64,44,824/- AS AGAINST RS.8,20,906/- DECLARED BY THE APPELLANT. 2. THAT THE LEARNED C1T(A) HAS ERRED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN ASSESSING INDEX C OST OF ACQUISITION AT RS.50,09,176/-AS AGAINST RS.1,06,33, 094/- SHOWN BY THE APPELLANT. 3. THAT THE LEARNED CIT(A) HAS FAILED TO CONSIDER T HAT INITIAL COST AND YEAR-WISE INVESTMENT OF PROPERTY SHOWN BY THE APPELLANT IS CORRECT AND, THEREFORE, ACTION OF THE ASSESSING OFFICER TO ALTER THE SAME ON IS ESTIMATIO N, WITHOUT ANY BASIS AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THAT THE LEARNED CIT(A) HAS FAILED TO CONSIDER T HAT THE ASSESSING OFFICER HAS TAKEN AT NIL INVESTMENT IN TH E PROPERTY FOR THE FINANCIAL YEAR 2005-2006 FOR COMPU TING LONG TERM CAPITAL GAIN AGAINST INVESTMENT OF RS.45,00,000/- (FORTY FIVE LACS) AS SHOWN BY THE APPELLANT AND HAS IGNORED THE DOCUMENTARY EVIDENCE AS FURNISHED DURING THE COURSE OF ASSESSMENT PROCEEDIN GS. 7 5. THAT DETAILED SUBMISSIONS MADE BY US EXPLAINING SOURCE OF INVESTMENT IN THE PROPERTY HAS NOT BEEN CONSIDER ED PROPERLY. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEAR D OR DISPOSED OFF. 8. THE LEARNED COUNSEL FOR THE ASSESSEE WHILE ARGUING TRIED TO EXPLAIN THE AMOUNTS WHICH HAVE NOT BEEN ACCEPTED BY THE ASSESSING OFFICER AS WELL AS THE LE ARNED CIT (APPEALS) FOR DIFFERENT FINANCIAL YEARS AS FOLL OWS : (I) REGARDING THE AMOUNT OF RS.60,000/- SPENT IN EARLIER YEARS BEFORE FINANCIAL YEAR 1981-82, RS. 1 LAC SPENT IN FINANCIAL YEAR 2001-02 AND RS.1,52,627/- SPENT IN FINANCIAL YEAR 2003-04, IT W AS SUBMITTED THAT THE ASSESSEE IS A PARTNER IN M/S A.K . SALES AND M/S HAPPY SERVICE STATION FOR THE LAST MANY YEARS AND THERE ARE REGULAR WITHDRAWALS FROM THESE BUSINESS OF THE ASSESSEE, WHEREIN HE IS A PARTNER. THEREFORE, THE CONTENTION OF THE ASSESSEE IS THAT THESE AMOUNTS WERE SPENT FROM THE PAST SAVINGS OF THE ASSESSEE AND, THEREFORE, MUST BE ALLOWED TO HIM. (II) AS REGARDS RS.45 LACS SPENT IN FINANCIAL YEAR 2006-07, IT WAS SUBMITTED THAT THE ASSESSEE HAD WITHDRAWN AMOUNTS ON DIFFERENT DATES IN CASH FROM T WO CONCERNS I.E. M/S A.K. SALES AND M/S HAPPY SERVICE STATION AND THE AMOUNTS WERE USED FOR CONSTRUCTION OF THE HOUSE PROPERTY. THE ASSESSEE HAS BEEN 8 MAINTAINING IMPREST ACCOUNT IN THESE FIRMS, WHEREBY HE MADE HEAVY WITHDRAWALS. OUR ATTENTION WAS INVITED TO PAGE 30 TO 33 OF THE PAPER BOOK, WHICH A RE IMPREST ACCOUNTS OF THE ASSESSEE IN THESE TWO CONCERNS. FURTHER, IT WAS STATED THAT THE WITHDRAWI NG THE AMOUNT FROM THE SAID FIRM M/S A.K. SALES LEAD T O A DEBIT BALANCE OF RS.63,56,852/- AS ON 10.10.2006 IN CC ACCOUNT OF THE FIRM. THIS FACT WAS ELABORATE LY EXPLAINED TO THE LEARNED CIT (APPEALS) ALSO. SIMILARLY, IN THE CASE OF M/S HAPPY SERVICE STATIO N, THERE ARE HEAVY WITHDRAWALS BY THE ASSESSEE. THE ASSESSEE BORROWED AN AMOUNT OF RS.1 CRORE FROM ICICI BANK. THE COPIES OF AGREEMENT OF LOAN AND STATEMENT OF ACCOUNT WERE PLACED IN PAPER BOOK. TH E LOAN TAKEN FROM ICICI BANK WAS ULTIMATELY USED FOR CC LIMIT OF THE FIRM, WHICH WAS ACTUALLY USED BY TH E ASSESSEE FOR CONSTRUCTION PURPOSES. THE LOAN WAS DISPERSED IN THE NAME OF M/S A.K. SALES AMOUNTING TO RS.65 LACS AS ON 10.10.2006, RS.6 LACS ON15.10.2006 AND REMAINING ON 30.10.2006. FOR THIS, OUR ATTENTION WAS INVITED TO ASSESSEES IMPRE ST ACCOUNT IN THE BOOKS OF M/S A.K. SALES, ANNEXED AT PAPER BOOK PAGE 30 AND 31. REGARDING THE LOAN BEING IN THE NAME OF THE SON OF THE ASSESSEE, IT WA S STATED THAT THE LOAN WAS IN THE JOINT NAMES OF THE ASSESSEE, SHRI AJAY MALIK, SON OF THE ASSESSEE SMT. SAVITA MALIK, WIFE OF THE ASSESSEE TOGETHER WITH M/ S A.K. SALES, THE FIRM. THE SANCTION LETTER OF ICICI 9 BANK WAS ATTACHED WITH THE PAPER BOOK AT PAGE 1. FROM THE SAME DOCUMENT, IT WAS ALSO EXPLAINED THAT THE LOAN WAS AGAINST THE PROPERTY AND THE HOUSE PROPERTY NO.3022, SECTOR 28, CHANDIGARH WAS PLEDGED FOR THE SAME. 9. ANOTHER ARGUMENT PUT-FORTH BEFORE US WAS THAT THE PROPERTY IN QUESTION WAS SOLD ON 26.2.2009 AND FROM THE COPY OF SALE DEED, IT CAN BE SEEN THAT THE COVE RED AREA OF PROPERTY SOLD WAS 673 SQ.MTRS. OR 7241.48 SQ.FT. IT CANNOT BE IGNORED THAT THE AMOUNT WAS SPENT FOR THE PURPOSE OF COVERING THE AREA OF673 SQ.MTRS. IN THI S WAY, THE AMOUNT SPENT BY THE ASSESSEE ON CONSTRUCTION OR IMPROVEMENT OF THE PROPERTY WAS EXPLAINED TO US. 10. THE LEARNED D.R. RELIED UPON THE ORDER OF THE ASSESSING OFFICER AS WELL AS THAT OF THE LEARNED CI T (APPEALS). 11. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHO RITIES BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECO RD. THE ONLY ISSUE TO BE DECIDED BY US IS WITH REGARD T O THE EXPLANATION OF SOURCE OF MONEY USED BY THE ASSESSEE FOR CONSTRUCTION OR IMPROVEMENT OF THE PROPERTY. REGAR DING THE INITIAL COST OF RS.3,10,000/- TAKEN BY THE ASSE SSEE WITH RESPECT TO THE PROPERTY SOLD, THE EXPLANATION OF THE ASSESSEE BEFORE THE LOWER AUTHORITIES AS WELL AS BE FORE US WAS THAT SINCE THE ASSESSEE COULD NOT GIVE ANY 10 INFORMATION, THE ASSESSING OFFICER HAS ARBITRARILY ESTIMATED THE COST TO BE RS.2,55,000/- AS AGAINST RS.3,10,000/- CLAIMED BY THE ASSESSEE. 12. BEFORE US, THE ONLY SUBMISSION MADE WAS THAT THE AMOUNT OF RS.60,000/- WAS SPENT OUT OF THE PAST SAVINGS OF THE ASSESSEE SINCE NO EVIDENCE IN THIS R EGARD WAS FILED BEFORE ANY OF THE LOWER AUTHORITIES AND E VEN NOT BEFORE US, WE ARE INCLINED TO CONFIRM THE ACTION OF THE ASSESSING OFFICER IN TAKING INITIAL COST TO RS.2,50 ,000/-. 13. AS REGARDS RS.1 LAC SPENT IN FINANCIAL YEAR 20 01- 02 AND RS.1,52,627/- SPENT IN FINANCIAL YEAR 2003-0 4, WE DO NOT FIND ANY EVIDENCE WITH REGARD TO THE ARGUMEN T THAT THESE AMOUNTS WERE SPENT OUT OF THE SAVINGS OF THE ASSESSEE WHICH WERE MADE OUT OF THE WITHDRAWALS FRO M HIS PARTNERSHIP FIRM. IN THE ABSENCE OF ANY SUCH EVIDE NCE BEING FILED BEFORE ANY OF THE LOWER AUTHORITIES OR EVEN BEFORE US, WE UPHOLD THE ACTION OF THE ASSESSING OF FICER IN NOT ALLOWING THE ASSESSEE THE BENEFIT OF THESE AMOU NTS. 14. THE IMPORTANT ISSUE IN THIS CASE IS WITH REGAR D TO AMOUNT OF RS.45 LACS SPENT IN THE FINANCIAL YEAR 2006- 07. DETAILED EXPLANATION WITH REGARD TO THIS WAS M ADE BEFORE THE LEARNED CIT (APPEALS) AS WELL AS BEFORE US. COPIES OF IMPREST ACCOUNT IN BOTH FIRMS IN WHICH TH E ASSESSEE IS A PARTNER WERE FILED BEFORE US TO SHOW THAT THE ASSESSEE HAS BEEN MAKING HEAVY WITHDRAWALS FROM THE SAID FIRMS. A LOAN OF RS.1 CRORE WAS RAISED FROM I CICI BANK BEFORE WHICH THE ASSESSEE HAS MADE WITHDRAWAL TO 11 THE EXTENT OF RS.60,56,854/- FROM THE FIRM M/S A.K. SALES. THE CC LIMIT OF THE FIRM WAS ACTUALLY USED BY THE A SSESSEE FOR CONSTRUCTION PURPOSES, WHICH WAS LATER ON SETTL ED BY LOAN TAKEN FROM ICICI BANK. EVIDENCES IN THIS REGA RD IN THE FORM OF SANCTION LETTER AND LOAN STATEMENT, ETC . ARE FILED WITH THE PAPER BOOK. THE MAIN CONTENTION BEC AUSE OF WHICH THE LEARNED CIT (APPEALS) DID NOT ALLOW TH E ASSESSEE THE BENEFIT ON THIS AMOUNT WAS THAT THE LO AN WAS IN THE NAME OF THE SON OF THE ASSESSEE SHRI AJAY MA LIK. THE APPLICATION FORM AND AGREEMENT OF THE LOAN RECE IVED BY THE ASSESSING OFFICER DIRECTLY FROM ICICI BANK U NDER SECTION 133(6) OF THE ACT ALSO CONFIRMS THE SAME. EVEN THE LEARNED D.R. ARGUING BEFORE US RAISED THIS PLEA . FROM THE PERUSAL OF THE SANCTION LETTER PLACED WITH THE PAPER BOOK, WE SEE THAT THE LOAN ACCOUNT IS IN THE NAME O F S/SHRI AJAY MALIK, OM PARKASH, SMT.SAVITA MALIK AND M/S A.K. SALES. FROM THESE, WE CAN INFER THAT THE LOAN ACCOUNT WAS IN THE JOINT NAMES OF FOUR PERSONS BEIN G THE FIRM IN WHICH THE ASSESSEE IS A PARTNER AND WIFE AN D SON OF THE ASSESSEE. THEREFORE, THERE IS NO FORCE IN T HE CONTENTION OF THE LEARNED CIT (APPEALS) THAT THE LO AN IS NOT IN THE NAME OF THE ASSESSEE. FURTHER, ON THE I SSUE THAT THE LOAN AMOUNT CAN BE USED ONLY FOR THE BUSIN ESS PURPOSES. IT WAS EXPLAINED TO US BY THE LEARNED CO UNSEL FOR THE ASSESSEE THAT THE LOAN WAS NOT BUSINESS LOA N BUT A LOAN AGAINST THE PROPERTY I.E. HOME EQUITY RESIDEN TIAL LOAN. THIS FACT IS EVIDENT FROM THE PERUSAL OF PA GE 23 OF THE PAPER BOOK, WHICH IS A PART OF LOAN ACCOUNTS 12 STATEMENT, WHEREBY IT HAS BEEN SPECIFICALLY MENTION ED THAT THE LOAN IS A LOAN AGAINST THE PROPERTY AND TH E PROPERTY PLEDGED IS HOUSE NO.3022, SECTOR 28, CHANDIGARH. AFTER PERUSING ALL THESE EVIDENCES AND HEARING BOTH THE PARTIES, WE FIND FORCE IN THE ARGU MENTS OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE AMOUN T OF RS.45 LACS INCURRED BY THE ASSESSEE IN THE CONSTRUC TION OR IMPROVEMENT OF THE PROPERTY IS FULLY EXPLAINED. THE ASSESSING OFFICER IS DIRECTED TO GIVE THE ASSESSEE THE BENEFIT OF THIS AMOUNT FOR COMPUTING THE LONG TERM CAPITAL GAIN ON SALE OF THE SAID PROPERTY. IN VIEW OF THE ABOVE, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED . 15. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 15 TH DAY OF DECEMBER, 2015. SD/- SD/- (BHAVNESH SAINI) (RANO JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 15 TH DECEMBER, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/THE CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH