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2016 (11) TMI 1638 - ITAT BANGALORECondonation of delay - delay of 169 days in filing the appeal - assessee has submitted that the appeal of the assessee was dismissed exparte because of the tax consultant of the assessee failed to appear and he was under bona fide belief that the representative of the assessee will take care of the tax matter - HELD THAT:- Assessee is an individual and it appears to be the first experience with the tax matter. The explanation of the assessee has to be analysed in the context whether the reasons for delay as explained by the assessee are bona fide or merely a device to take benefit or an attempt to take undue advantage of filing the appeal belatedly. We find that it does not emerge from the facts and circumstances of the case that by filing the appeal belatedly the assessee has made an attempt to take undue advantage or benefit. Accordingly, having regard to the facts and circumstances of the case, we condone the delay of 169 days in filing the appeal. Addition u/s 68 - unexplained cash deposits in Bank account - peak credit - HELD THAT:- AO on the basis of AIR information that the assessee has deposited cash in the Bank account during the financial year relevant to the assessment year under consideration. Thus addition has been made by the Assessing Officer as an unexplained cash credit under Section 68 of the Act. In the case of CIT Vs. Gandhi Bhaichand H Gandhi [1982 (2) TMI 28 - BOMBAY HIGH COURT] has held that the passbook maintained by the Bank could not be regarded as books of account of the assessee much less book maintained by the assessee. Therefore the Hon'ble High Court has upheld the order of the Tribunal in deleting the addition made under Section 68 of the Act on account of deposits in Banks. We find force and substance in the alternate plea of the learned Authorised Representative of the assessee that even if an addition is to be made it cannot be more than the peak credit in the bank account. Further since the assessee's case has been decided by AO as well as the CIT (Appeals) without any representative therefore in the facts and circumstances of the case, we set aside this matter to the record of the Assessing Officer for granting one more opportunity to the assessee for explanation of the source of cash deposit and in any case the addition if any it should not be more than the peak credit in the bank account. - Appeal of the assessee is partly allowed.
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