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2019 (12) TMI 823 - AT - Income TaxEnhancing the addition u/s.251(10) - cash deposited in Bank accounts treated as alleged unexplained cash deposits - HELD THAT:- We find that the bank account of the assessee 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from the pattern of cash deposit as reflected from the bank account that these deposits are simultaneously being withdrawn.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 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 penalty proceedings for furnishing inaccurate particulars of income and imposing penalty for concealment of income, the order imposing penalty had to be made only on ground of which penalty proceedings had been initiated and it could not be on fresh ground of which assessee had no notice, penalty has to be deleted. Penalty levied u/s.271(1)(c) is not sustainable in law as no specific charge was levied, hence it is cancelled. Accordingly, the appeal of the assessee is allowed.
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