SURYA KANT, J. - (1.) THIS order shall dispose of four appeals bearing ITA Nos.54 to 57 of 2012 out of which ITA Nos.54 and 55 of 2012 are at the instance of the husband (Arun Kumar Goyal) while ITA No.56 & 57 of 2012 are by his wife (Smt. Parveen Goyal). The assessees have preferred these appeals against the order(s) dated 17.11.2011 passed by the Income Tax Appellate Tribunal (in short, 'the ITAT'). Since the ITAT has decided the appellants' four appeals by assigning identical reasons, we propose to decide these appeals by passing a common order as the facts are interconnected and overlapping.
(2.) THE facts giving rise to these appeals are that the assessees (husband and wife) filed their separate returns of income declaring business income, Long Term Capital Gains and agricultural income for the Assessment Year 2000 -01. Subsequently, on the basis of proceedings initiated for the Assessment Year 2003 -04, they received notices on 05.05.2006 under Section 148 of the Income Tax Act, 1961 (in short, 'the Act') alleging that they had purchased two -third share in SCO No.60 -61, Sector 17 -D, Chandigarh for a consideration of Rs.85 lacs as per the 'agreement to sell' dated 14.10.1999 but the sale deed was got registered at Rs.19.20 lacs in the Assessment Year 2003 -04 and thus the assessees made undisclosed payment to the tune of Rs.65.80 lacs to the sellers and thus escaped assessment for the Assessment Year 2000 -01 to the extent of undisclosed payment of their respective share. The case of the assessees was that they had entered into an 'agreement to sell' dated 03.02.2000 in respect of the subject property for a total sale consideration of Rs.16 lacs and its possession was taken immediately and stood acknowledged in their name on 03.02.2000 itself i.e. in the Assessment Year 2000 -01 which was duly reflected in the returns for the Assessment Year 2001 -02 also wherein the rent received from the Showroom was shown as income from the house property. The appellant -assessees claimed that earlier the subject property was being managed through one JD Gupta who was a 'property dealer' and had initially negotiated at their instance with the seller(s) and pursuant thereto that the 'agreement to sell' dated 14.10.1999 was executed in which the figure of Rs.85 lacs was fraudulently entered into as a sale consideration by JD Gupta for his own/personal benefit. The assessees further claimed that the said 'agreement to sell' was got signed from them by JD Gupta without letting them see the contents of the agreement. The property in question was statedly a resumed property and had no buyer as it was in possession of the Estate Officer. Hence the realizable price of the property was very low. The assessees asserted that the sale consideration of Rs.85 lacs was a fake entry made by JD Gupta in the 'agreement to sell' dated 14.10.1999 for his personal gains and without giving any sanctity to the said agreement, the parties in fact bound themselves down with a fresh agreement on 03.02.2000 depicting the agreed sale consideration of Rs.16 lacs. The appellant -assessees also explained that though they were in possession of the property and had been receiving its rental income since February, 2000 yet they had to approach the Civil Court and it was pursuant to the decree passed in their favour that a Local Commissioner was appointed who got the sale deed executed on 13.02.2002 for a sale consideration of Rs.12.80 lacs. Thereafter only that the said JD Gupta lodged a false complaint with the Income Tax Authorities which led to the issuance of notices under Section 148 of the Act to the assessees.
(3.) THE Assessing Officer (in short, 'the AO') vide order dated 17.03.2006 for the Assessment Year 2003 -04 held that the assessees themselves have accepted the execution of 'agreement to sell', dated 14.10.1999 as also the payment of earnest money of Rs.10 lacs. Their plea regarding second agreement to sell dated 03.02.2000 or the agreed sale consideration amounting to Rs.16 lacs only, was disbelieved concluding that the assessees had made an undisclosed payment of Rs.65.80 lacs to the sellers and both of them had invested Rs.43,86,667/ - out of their undisclosed income. The AO applied the same reasoning while re -opening and passing a fresh assessment order dated 28.11.2007 for the Assessment Year 2000 -01. Penalty proceedings under Section 271(C) of the Act were also initiated.;