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TMI Blog2019 (12) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... is supported by various decisions cited by ld. counsel. We find that the peak balance as on 18- 09-2019 is at ₹ 1,68,025/- accordingly the addition of ₹ 40,81,465/- is restricted to peak balance of ₹ 1,68,025/-. Accordingly, all the above grounds of appeal are partly allowed. Penalty u/s 271(1)(c) - HELD THAT:- Penalty u/s.271(1)(c) was initiated for furnishing inaccurate of particular of incomes, whereas the penalty has been imposed by the AO on account of concealment of income. Therefore, the penalty is not tenable in law, in the light of decision of Hon ble Bombay High Court in the case of CIT v. Samson Perinchery [ 2017 (1) TMI 1292 - BOMBAY HIGH COURT ] wherein it was held that where the AO was initiated penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the I.T. Act, 1961 on account of cash deposited in Bank accounts treated as alleged unexplained cash deposits. 2. On the facts and in the circumstances of the case as well as law on the subject, the learned commissioner of the Income Tax (Appeals) has not offered adequate opportunity to hear the case, hence, the case may please be allowed and set aside to the CIT(A), Surat. 3. I am filling herewith the Additional Grounds of appeal which may kindly be taken on record, and oblige. 3. The ld. counsel submitted that additional ground be admitted as it is emanating from the appellate order wherein the CIT(A) has enhanced the addition to the tune of ₹ 40,81,465/- in support of this the ld. counsel is placed rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onse has been received from the assessee, therefore, after verification of the bank statements of the ICICI Bank, the AO noted that peak balance has been reflected at ₹ 1,12,972/- on 18-09-2008. The AO further noted that as far as the remaining credit of ₹ 28,17,000/- is concerned, the GP of the same at the rate of 20% was estimated which work out to ₹ 5,63,400/-. Accordingly, the AO made addition of ₹ 6,76,372/- being peak balance of ₹ 1,12,972/- and GP @ 20% of ₹ 28,17,000/- i.e. ₹ 5,63,400/-. 8. Being aggrieved, the assessee carried the matter before the ld. CIT(A). However, the CIT(A) observed that the addition has been made by the AO is without any basis as no details have been given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cash deposits and the equal amount of cash withdrawals through ATM. The ld. AO has adopted peak on the basis that the entire amount of deposits in the bank account cannot be considered as income of the assessee. The ld. counsel submitted the chart showing cash deposits and cash withdrawals, according to which peak balance is as on 18-09-2019 comes to at ₹ 1,68,025/- as against ₹ 1,12,972/- considered by the AO. This is due to the fact that the assessee has considered both the saving bank accounts and worked out the peak. The ld. counsel contended that additions can only be made of peak amount and not entire cash deposits. The ld. counsel supported his view by placing reliance on the decision of Hon ble Gujarat High Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is showing cash deposits and simultaneously cash withdrawals within a day or today. Therefore, the entire cash deposits cannot be treated as unexplained as there is the debit and credit on both account. It is further discernable from the pattern of cash deposit as reflected from the bank account that these deposits are simultaneously being withdrawn. Therefore, in such a situation the only course of action is to consider the peak balance for addition, which is supported by various decisions cited by ld. counsel. We find that the peak balance as on 18- 09-2019 is at ₹ 1,68,025/- accordingly the addition of ₹ 40,81,465/- is restricted to peak balance of ₹ 1,68,025/-. Accordingly, all the above grounds of appeal are partly al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not sustainable in law. The ld. counsel further placed reliance on the decision of Gujarat High Court in the case of CIT v. Lakhdhir Lalji (1972) 85 ITR 77 (Guj.), wherein the penalty proceedings having been initiated against the assessee on the basis of concealment of income and imposed on the basis of furnishing of inaccurate particulars of as income is held not to be justified. The ld. counsel also relied in the case of CIT v. Samson Perichery [2017] 392 ITR 4 (Bom.) 17. Per contra, the ld. DR supported the order of the lower authorities. 18. We have heard the rival submissions and perused the relevant material available on record. We find that the penalty u/s.271(1)(c) was initiated for furnishing inaccurate of par ..... X X X X Extracts X X X X X X X X Extracts X X X X
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