1 itxa3322-10 agk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.3322 OF 2010 The Commissioner of Income Tax – III, Pune ..Appellant. Versus Kisanveer Satara SSK Limited, ..Respondent. Mr.Vimal Gupta for the appellant. Mr.Mihir Naniwadekar for the respondent. CORAM : J.P. Devadhar & Smt.R.P. Sondurbaldota, JJ. DATE : 24th June, 2011. P.C. : 1. Four questions of law have been raised by the Revenue in this appeal, which reads thus : a) 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 under Section 40A(2)(b) of the Income Tax Act, 1961 ? b) Whether the ITAT is correct on facts and in law in deciding the issue as against setting aside such issue for further enquiry to the CIT (A) as required by the order of the Hon’ble Supreme Court in the case of Shri Satpuda Tapi Parisar SSK Limited and others ? c) Whether on the given facts and in the circumstances of the 2 itxa3322-10 case and in law, the ITAT was correct in deleting the addition made by 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 ? d) Whether the ITAT did not err on facts and in law in not treating such difference as constituting ‘distribution of profits’ ? 2. As regards questions (a) and (b) are concerned, counsel for the parties state that in the light of the judgment of the Apex Court in the case of Dy. Commissioner of Income-tax, Nashik V/s. Shri Satpuda Tapi Parisar SSK Limited reported in (2010) 189 Taxman 81 (SC), matter needs to be restored to the file of the Commissioner of Income Tax (Appeals) for fresh decision. Accordingly, the both the issues are restored back to the file of the Commissioner of Income Tax (Appeals) for fresh decision in accordance with law. 3. As regards questions (c) and (d) are concerned, counsel for the parties state that both the questions are covered against the Revenue by the decision of this Court in the assessee’s own case being Income Tax Appeal No.930 of 2008) decided on 30th June 2009. Accordingly, both the questions are answered in favour of the assessee and against the Revenue. 4. The appeal is accordingly disposed of in above terms with no order as to costs. (Smt.R.P. Sondurbaldota, J.) (J.P. Devadhar, J.)