1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.83 OF 2009 The Commissioner of Income Tax – 3, Mumbai ..Appellant. Versus M/s.Ramco Trading Private Limited, Mumbai ..Respondent. Mr.Vimal Gupta for the appellant. None for the respondent. CORAM : Dr.D.Y. Chandrachud & J.P. Devadhar, JJ. DATE : 19th January, 2010. P.C. : 1. The appeal was admitted on the following substantial questions of law. Whether on the facts and in the 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 of 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 is applicable to all assessment years and not only with effect from 1-4-2003 as held by the Apex Court in the case of Gold Coin Health Food Private Limited in Civil Appeal No.5065 of 2008 ? 2. The Tribunal has relied upon the judgment of the Supreme Court in the case of Virtual Soft Systems 289 ITR 83. The judgment of the Supreme Court in 2 Commissioner of Income Tax V/s. Gold Coin Health Food Private Limited (2008) 304 ITR 308, held the earlier judgment in Virtual Soft not to lay down the correct position of law. In the circumstances, the impugned order of the Tribunal dated 21st July 2008 is set aside and the proceedings are remitted back to the Tribunal for a decision afresh on merits after considering the law laid down by the Supreme Court. The question of law would stand answered accordingly. 3. The appeal is accordingly disposed of. There shall be no order as to costs. (J.P. Devadhar, J.) (Dr.D.Y. Chandrachud, J.)