1 itxa3438-10 sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.3438 OF 2010 The Commissioner of Income Tax-1 ..Appellant. V/s. Hutatma Kisan Ahir Sahakari Sakhar Karkhana Ltd. ..Respondent. Mr. Vimal Gupta for the appellant. Mr. Mihir Naniwadekar for the respondent. CORAM : J.P. DEVADHAR AND SMT. R.P.SONDURBALDOTA JJ. DATED : 29TH JUNE, 2011 P.C. :- 1. Three questions of law are raised by the revenue in this appeal, which read thus:- (1) Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in holding that the additional payment over and above the statutory minimum price (SMP) was cane price and not diversion of profit and as such allowable as business expenditure u/s.37(1) of the Income Tax Act, 1961 ? (2) Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in holding that the provisions of Section 40A(2)(b) are not applicable to payment made by a Co-operative Society to members and non members towards purchase price of cane supplied ? (3) Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in deleting the addition made on account of sale of sugar at concessional rate to members when it 2 itxa3438-10 is nothing but diversion of profit ? 2. As regard the first two questions are concerned, learned counsel for the parties state that the similar questions raised by the revenue in the case of The Commissioner of Income Tax-III, Pune V/s. Kisanveer Satara SSK Ltd. [Income Tax Appeal no.3321 of 2010] decided on 24/6/2011 has been restored back to the file of CIT(A) for fresh decision 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 Ltd. reported in (2010) 189 Taxman 81 (SC). Therefore, the first two questions are restored to the file of CIT(A) for fresh consideration in the light of the aforesaid decision of the Apex Court. 3. As regards the third question is concerned, counsel for the parties state that similar question raised by the revenue in the case of The Commissioner of Income Tax-I, Kolhapur V/s. Shree Datta Sahakari Sakhar Karkhana Ltd. [Income Tax Appeal (Lod) No.1824 of 2009] decided on 6th August, 2009 has been answered against the revenue. Therefore, the third question cannot be entertained. 4. The appeal is disposed off accordingly with no order as to costs. (SMT. R.P.SONDURBALDOTA, J.) (J.P. DEVADHAR, J.)