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2012 (7) TMI 364 - AT - Income TaxAddition of the entire credits in bank account in the income as unexplained deposits - assessee contested that only the peak credit in the bank account could have been added in the income of unexplained deposit - Held that:- Principle of peak credit is not applicable in the cases where the deposits remained unexplained u/s. 68 and would not apply in the case of different depositors where there has been no transaction of deposits and its repayment between the particular depositor and the assessee - as different drafts were deposited in the bank account of the assessee in the name of different persons, therefore, peak theory cannot be applied in the case of assessee. Further, from the bank statement, it is clear that after deposit of bank drafts in the account in the name of different persons, cash was withdrawn in each and every case, but no evidence was furnished whether the amounts were paid to the same depositors of the drafts or to some other parties - in favour of revenue. Levy of penalty u/s. 271(1)(c) - rejection of appeal as to be time barred - Held that:- It is well settled law that penalty cannot be levied on the amounts /additions, which have already been deleted on quantum appeals. No basis would be left for levy of penalty if addition on which penalty was levied has already been deleted by the appellate authorities - Since the order of the Tribunal was delivered after the levy of penalty, therefore, such circumstances and peculiar facts should have been considered by the ld. CIT(A) in the penalty appeal instead of dismissing the appeal of the assessee holding it to be time barred - the assessee was prevented by sufficient cause from not filing the appeal before the CIT(A) within the period of limitation, thus in such circumstances, the delay should have been condoned - the appeal of the assessee is restored to the file of CIT(A) with the direction to redecide the appeal on merits - in favour of assessee by way of remand.
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