IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION INCOME INCOME INCOME TAX APPEAL NO. 395 OF 2009 TAX APPEAL NO. 395 OF 2009 TAX APPEAL NO. 395 OF 2009 The Commissioner of Income-tax-3, Mumbai. ... Appellant. V/s. M/s.Reliance Consultancy Services Ltd.... Respondent. Vimal Gupta for the appellant. J.D.Mistry with Raj Darak for the respondent. CORAM CORAM CORAM : V.C.DAGA AND J.P.DEVADHAR, JJ. : V.C.DAGA AND J.P.DEVADHAR, JJ. : V.C.DAGA AND J.P.DEVADHAR, JJ. DATED DATED DATED : 20th April 2009. : 20th April 2009. : 20th April 2009. P.C. P.C. P.C. : : : ---- ---- ---- . Heard. . Admit, on the following substantial question of law: "Whether on the facts and circumstances of the case and in law, the Tribunal was right in holding that since the assessed income is a loss no penalty can be levied prior to the amendment of sub clause (a) of Explanation 4 to section 271 of the Income-tax Act by Finance Act 2002 even though the amendment of sub clause (a) of Explanation 4 to section 271 of the Income-tax Act by Finance Act 2002 is applicable to all Assessment Years and not only with effect from 01.04.2003 as held by the Hon’ble Apex Court in the case of Gold Coin Health Food Pvt.Ltd. in Civil Appeal No.5065 of 2008? 2. Mr.Darak waives service on behalf of the respondent. By consent of parties, appeal is taken up for final disposal. 3. This appeal is directed against the order dated 17th July, 2008 passed by the Tribunal in ITA No.2328/Mum/2006 for the assessment year 1998-99. The Tribunal has concluded the issue raised in the appeal by one line order referring to the Supreme Court judgment without discussing the same or without recording any reasons in support of the order. Even the factual aspects have not been dealt with by the Tribunal. The Tribunal has not decided the matter on merits. In view of the recent judgment of the Apex Court in the case of Gold Coin Health Food Pvt.Ltd., (2008) 304 ITR 308, the entire issue needs reconsideration at the hands of the Tribunal. 4. In the above view of the matter, by consent of parties, the impugned order is set aside and the matter is remitted back to the Tribunal for consideration afresh. All rival contentions are kept open. 5. Appeal stands disposed of in terms of this order with no order as to costs. (J.P.DEVADHAR, (J.P.DEVADHAR, (J.P.DEVADHAR, J.) J.) J.) (V.C.DAGA (V.C.DAGA (V.C.DAGA J.) J.) J.)