TMI Blog2019 (1) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... s, we have entertained this petition. Coming to the merits of the petition, we may recall that while disposing of the assessee's appeal against the penalty order all that the Tribunal had by way of discussion on merits observed that the Tribunal had reduced the income of the assessee from ₹ 34.63 lakhs as Assessing Officer to Nil. The Tribunal noted that the company was defunct and had suffered loss in earlier years. Primarily on such grounds the Tribunal was of the opinion that the penalty could not have been imposed. While accepting the revenue's application for rectification the Tribunal recalled the order and posted the appeal for fresh hearing. We do not find that this order requires any interference. The previous order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -assessee has challenged an order dated 5th September, 2018 passed by the Income Tax Appellate Tribunal ( the Tribunal for short) by which the application of the revenue for rectification of the Tribunal's judgment dated 28th July, 2015 came to be allowed. 2. Brief facts are as under: Petitioner-assessee is a company. The petitioner had filed a return of income for the assessment year 200102 declaring loss of ₹ 3.67 crores (rounded off). The Assessing Officer passed the order of assessment assessing the assessee's income for the said assessment year at ₹ 34.63 lakhs (rounded off). This issue eventually reached the Tribunal. The Tribunal by an order dated 22nd August, 2008 reduced the assessee's income to Nil. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Virtual Soft Systems Ltd. Vs. Commissioner of Income-Tax (2007) 289 ITR 83(SC) and observed that the said decision was not noticed when previous proceedings were disposed of. The Tribunal then referred to the decision of the Gujarat High Court in case of Asst. CIT Vs. Saurashtra Kutch Stock Exchange Securities Ltd. (2013) 33 taxmann.com 118 (Gujarat) and held that not noticing a binding judgment would give rise to a rectifiable mistake. The Tribunal eventually recalled its earlier order and posted the appeal for fresh hearing. 5. We have heard learned counsel for the parties at considerable length. We are conscious of the decision of this court in case of Chem Amit Vs. Assistant Commissioner of Income-tax (2005) 272 ITR 397 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the penalty without examination of relevant issues. It is true that the Tribunal referred to the decision of the Supreme Court in case of Virtual Soft Systems (supra) which counsel for the assessee would be correct in pointing out may not apply to facts of the case and by virtue of the decision of the three bench judge in case of Commissioner of Income-Tax Vs. Gold Coin Health Food P. Ltd.(2008) 304 ITR 308 (SC) the decision in case of Virtual Soft Systems has been overruled. The view of the larger bench of Supreme Court is that penalty can be imposed even in the case of reduced loss. 8. In the present case, therefore, we are not inclined to interfere with the order of the Tribunal. The petitioner would have full opportunity to pursu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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