(-1-) MGN IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1367 of 2008 Commissioner of Income Tax-3. .Appellant Vs. M/s. K.R. Steel Unino Ltd. .Respondent Mr. Vimal Gupta for the Appellant. Mr. A.K. Jasani, fr the Respondent. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & R.S.MOHITE, JJ. R.S.MOHITE, JJ. R.S.MOHITE, JJ. DATED: 20th February,2009 DATED: 20th February,2009 DATED: 20th February,2009 P.C. P.C. P.C. . Mr.Jasani waives notice on behalf of the respondent. 2. The Revenue has come in Appeal on the following question: "(A) Whether on the facts and in the circumstance of the case and in law the Hon’ble Tribunal was right in holding that in the absence of any positive Income and no tax being levied penalty for concealment could not be levied prior to the amendment of sub-section (a) of Explanation 4 to Section 271 of the Income-tax Act by Finance Act 2002?" (-2-) The learned Tribunal dismissed the appeal relying on the judgment of the Supreme Court in Virtual Soft Virtual Soft Virtual Soft Systems Ltd. Vs. CIT, 289 ITR 83. Systems Ltd. Vs. CIT, 289 ITR 83. Systems Ltd. Vs. CIT, 289 ITR 83. The said judgment has thereafter reconsidered by the Supreme Court in Commissioner of Income Tax-I vs. Gold Coin Health Food Private Ltd., Civil Appeal No.5065 of 2008 (Arising out of SLP (C) No.4379 of 2007) and C.A. No.5066/2008 (Arising out of SLP (C) No.14785/2007) decided on 18th August, 2008. In the light of the above, the matter is remanded back to the Tribunal to decide the matter on merits. Appeal disposed of accordingly. (R.S.MOHITE, J.) (F.I.REBELLO,J.) (R.S.MOHITE, J.) (F.I.REBELLO,J.) (R.S.MOHITE, J.) (F.I.REBELLO,J.)