1 itxa6235.10.sxw IN THE HIGH COURT OF JDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.6235 OF 2010 The Commissioner of Income Tax-3, Mumbai ...Appellant. Vs. M/s Baroda Rayon Corporation Ltd. ..Respondent. Mr. Vimal Gupta for the Appellant. Mr. Sudarshan Kanojiya for the Respondent. CORAM : J.P. DEVADHAR AND A.A. SAYED, JJ. DATE : 8TH JULY, 2011. P.C. 1. Heard. 2. Admit on the following substantial question of law : "On the facts and in the circumstances of the case and in law, was the Tribunal right in confirming the order of the Ld. CIT(A) and canceling the penalty solely on the ground that the income was in the negative (loss)" 3. The Appellate Tribunal deleted the penalty in view of the decision the Supreme Court in the case of M/s Virtual Soft Sytems Ltd. Vs. CIT reported in (2007) 289 ITR 83(SC). The said decision of the Apex Court has been over-ruled in the case of CIT Vs. Gold Coin Health Food P. 2 itxa6235.10.sxw Ltd., reported in (2008) 304 ITR 308 (S.C) 4. In this view of the matter, order dated 21-08-2008 passed by the ITAT is set aside and the issue is restored back to the file of ITAT for consideration afresh in the light the decision of the Supreme Court in the case of Gold Coin Health Food P. Ltd., (Supra). 5. Appeal is accordingly disposed off, with no order as to costs. ( A.A. SAYED, J. ) ( J.P. DEVADHAR , J.)