1 itxa4999-10 sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.4999 OF 2010 The Commissioner of Income Tax III, Pune ..Appellant. V/s. Loknete Balasaheb Desai SSK Ltd. ..Respondent. Mr. Vimal Gupta for the appellant. Mr. Mihir Naniwadekar for the respondent. CORAM : J.P. DEVADHAR AND A.A.SAYED, JJ. DATED : 19TH JULY, 2011 P.C. :- 1. Four questions of law raised by the revenue in this appeal read thus:- (1) Whether on the given facts and in the circumstances of the case and in law, the ITAT was correct in holding that the disallowance made by the assessing officer of excess cane price paid to members and non members was not justified and in holding that such payments could not be disallowed either under section 37(1) or 40A(2)(b) of the I.T. Act, 1961 ? (2) Whether ITAT is correct on facts and in law in deciding the issue as against setting aside such issue for further enquiry to the CIT (Appeals) as required by the order of the Supreme Curt in the case of Shri Satpuda Tapi Parishar SSK Ltd. & others ? (3) Whether on the given facts and in the circumstances of the case and in law, the ITAT was correct in deleting the addition made by 2 itxa4999-10 the assessing officer on account of difference between the market price of sugar and concessional price at which sugar was sold to the cane growers by holding that no income accrued to the assessee on concessional sales and, therefore, the assessee was not liable to be assessed on the difference ? (4) Whether the ITAT did not err on facts and in law in not treating such difference as constituting 'distribution of profits' ? 2. As regards the first two questions are concerned, learned counsel for the parties state that in the light of the judgment of the Apex Court in the case of DCIT V/s. Shri Satpuda Tapi Parisar SSK Ltd. reported in (2010) 326 ITR 42 (SC), the matter needs to be restored back to the file of CIT(A) for fresh consideration. Accordingly, the first two questions are restored to the file of CIT(A) for fresh consideration in the light of the judgment of the Apex Court in Shri Satpuda Tapi Parisar SSK Ltd. (supra). 3. As regards third and fourth questions are concerned, counsel for the parties state that the said questions are answered in favour of the assessee by the decision of this Court in the case of CIT V/s. Kisanveer Satara Sakar Karkhana Ltd. in Income Tax Appeal No.930 of 2008 decided on 30/6/2009. For the reasons stated therein, the third and fourth questions cannot be entertained. 4. The appeal is disposed off accordingly with no order as to costs. (A.A. SAYED, J.) (J.P. DEVADHAR, J.)