Itxa/395/2009 Of The Commissioner Of Income Tax -3 Mumbai v. M/S Reliance Consultancy Services Ltd. Mumbai

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 395 OF 2009 The Commissioner of Income-tax-3,Mumbai. V/s. M/s.Reliance Consultancy Services Ltd.... Respondent. ... Appellant. Vimal Gupta for the appellant. J.D.Mistry with Raj Darak for the respondent. CORAM : V.C.DAGA AND J.P.DEVADHAR, JJ.DATED : 20th April 2009. P.C. :---- .Heard..Admit, on the following substantialquestion of law:"Whether on the facts and circumstances ofthe case and in law, the Tribunal was rightin holding that since the assessed incomeis a loss no penalty can be levied prior tothe amendment of sub clause (a) ofExplanation 4 to section 271 of theIncome-tax Act by Finance Act 2002 eventhough the amendment of sub clause (a) ofExplanation 4 to section 271 of theIncome-tax Act by Finance Act 2002 isapplicable to all Assessment Years and notonly with effect from 01.04.2003 as held bythe Hon’ble Apex Court in the case of GoldCoin Health Food Pvt.Ltd. in Civil AppealNo.5065 of 2008? 2.Mr.Darak waives service on behalf of therespondent. 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 ITANo.2328/Mum/2006 for the assessment year 1998-99. TheTribunal has concluded the issue raised in the appealby one line order referring to the Supreme Courtjudgment without discussing the same or withoutrecording any reasons in support of the order. Eventhe factual aspects have not been dealt with by theTribunal. The Tribunal has not decided the matter onmerits. In view of the recent judgment of the ApexCourt 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 consentof parties, the impugned order is set aside and matter is remitted back to the Tribunal consideration afresh. All rival contentions are kept open. thefor 5. order with no order as to costs. Appeal stands disposed of in terms of this (J.P.DEVADHAR, J.) (V.C.DAGA J.)