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M/s SHCIL Services Limited, C/o Kalyaniwalla & Mistry, Army & Navy Bldg., 3rd Floor, 148 M.G. Road, Fort, Mumbai- 400001. Vs. Dy.CIT -4(2)(1), R. No. 669, 6th Floor, Aayakar Bhawan, M.K. Road, Mumbai-400020
November, 23rd 2015
      IN THE INCOME-TAX APPELLATE TRIBUNAL -"E"BENCH,MUMBAI
         BEFORE S.SH.B.R.BASKARAN, ACCOUNTANT MEMBER AND
                  PAWAN SINGH,JUDICIAL MEMBER
      (S.A. No. 285/Mum/2015-Arising out of ITA 5004/Mum/2015-Assessment Year 2011-12)
          M/s SHCIL Services Limited,               Dy.CIT -4(2)(1),
          C/o Kalyaniwalla & Mistry, Army           R. No. 669, 6th Floor,
          & Navy Bldg., 3rd Floor, 148 M.G.         Aayakar Bhawan, M.K. Road,
          Road, Fort, Mumbai- 400001.           Vs. Mumbai-400020
          PAN: AAJCS5661H
                  (Appellant)                             (Respondent)
                   Appellant by                        :Shri M.M. Golvala
                   Respondent by                       :Shri Abani Kanta Nayak
                   Date of Hearing                     : 20 -11-2015
                   Date of Pronouncement                : 20 -11-2015

                  Order u/s.254(1)of the Income-tax Act,1961(Act)

PER PAWAN SINGH, J.M.

 1.    The present Stay Application is filed by the assessee against the outstanding demand of
 Rs. 1,65,43,666/- which was raised in the penalty proceeding initiated u/s 271(1)(c) vide
 order dated 27.08.2014.






 2.    In the present matter, assessment order u/s 143(3) was passed on 21.02.2014 against
 which assessee filed an appeal before the Commissioner of Income-tax(Appeals) (for short
 `CIT(A)') and which was disposed of vide order dated 28.01.2015 wherein the CIT(A) held
 that disallowance made u/s 40(a)(ia) was unjustified and deleted the addition. However, he
 confirmed the addition to the extent of Rs. 5,73,30,221/- u/s 40(2)(a) of the Act.

 3.    Against the order of CIT(A) both the parties preferred an appeal which is pending
 before the E Bench of this Tribunal and is fixed for 16.11.2016, being ITA No.
 1777/Mum/2015. It is submitted that in the order dated 28.01.2015 passed by the ld. CIT(A)
 no penalty proceeding was initiated.

 4.    It is submitted that during the pendency of appeal before the CIT(A), the Assessing
 officer (AO) passed the order of penalty u/s 271(1)(c) amounting to Rs. 7,45,03,573/- against
 which an appeal was filed before the CIT(A), wherein the ld. CIT(A) deleted penalty levied
 by AO for the disallowance made u/s 40(a)(ia) but levied penalty on the addition sustained by
 him u/s 40A(2)(a).

 5.    Authorised Representative (AR) of the assessee argued that out of the penalty amount
 of Rs. 1,90,43,666/- a sum of Rs. 25 Lakh has already been deposited by the assessee. The Ld
 AR of assessee argued that the assessee has good prima-facie case on merit and is likely to
 be succeeded in the quantum of appeal pending before this Tribunal.

 6.     We have heard the AR of the parties and perused material available on record.
                                               2         S.A. No.285/Mum/2015 M/s SHCIL Services Limited



 7.    We have noticed that quantum appeal is pending before this Tribunal and originally the
 addition/disallowance made by the AO u/s 194J was deleted by The CIT(A), however,
 addition/disallowance were made u/s 40A(2)(b) of the Act without initiating the penalty
 proceeding which is debatable issue pending consideration before this Tribunal.

 8.    In the above circumstances, we direct the assessee to deposit a further sum of Rs.25
 Lakh by 15th December 2015 upon deposit of Rs. 25 Lakh, the recovery proceedings against
 the assessee are stayed for six months or till the disposal of the appeal filed by the parties
 whichever is earlier.






 9.     The ld. AR also prayed for posting this appeal on out of term basis and accordingly we
 direct the registry to post this appeal for hearing on 17.12.2015.

               As a result, application filed by the assessee stands partly allowed.

               Order pronounced in the open court on 20th November, 2015.

            Sd/-                                                 Sd/-
      (B.R.BASKARAN )                                       (PAWAN SINGH)
   ACCOUNTANT MEMBER                                      JUDICIAL MEMBER

Mumbai, Date: 20.11.2015
SK/Copy of the Order forwarded to :
1. Assessee                                  2. Respondent
3.The concerned CIT(A) 4.The concerned CIT
5. DR "E" Bench, ITAT, Mumbai
6. Guard File
                                //True Copy//
                                                            / BY ORDER,

                                                   /  Dy./Asst. Registrar
                                                ,   /ITAT, Mumbai

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