1 7.ITXA.675-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.675 OF 2011 The Commissioner of Income Tax-III, Pune. ..Appellant. Vs. Shri Chhatrapati Sahakari Sakhar Karkhana Ltd., ..Respondent. .... Mr. Vimal Gupta, for the Appellant. Mr. S.N. Inamdar, Senior Counsel, a/w. Mihir Naniwadekar, for the Respondent. .... CORAM : J. P. DEVADHAR & A.R. JOSHI, JJ. DATED : 16 th DECEMBER, 2011. P.C. 1. The following questions of law are raised by the Revenue in this Appeal. “(a) Whether on the 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 sugar purchase price paid to members and non-members, was not justified and in holding that such payments could not be disallowed either u/s. 37(1) or u/s. 40A(2)(b) of the Income Tax Act, 1961 ? 2 7.ITXA.675-11 (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 Ltd., & others ? (c) Whether on the facts and in the circumstances of the 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 ? (e) Whether on the 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 the Khodki Charges paid to members was not justified and in holding that such payments could not be disallowed ?” 2. As regards questions (a) & (b) are concerned, Counsel for the parties state that in view of the decision of the Apex Court in the case of CIT v Shri Satpuda Tapi Parisar SSK Ltd. reported in 326 ITR 42 (SC), the issue needs to be restored to the file of the CIT(A). 3 7.ITXA.675-11 Accordingly, the issues with reference to questions (a) & (b) are restored to the file of CIT(A). 3. As regards questions (c) & (d) are concerned, Counsel for the parties state that similar questions raised by the Revenue in the case of The Commissioner of Income Tax Vs. Kisanveer Satara Sahakari Sakar Karkhana Ltd., in Income Tax Appeal No.930 of 2008 has been decided in favour of the assessee on 30.6.2009. Hence, questions (c) & (d) cannot be entertained. 4. As regards, question (e) is concerned, Counsel for the parties state that the said question has been answered in favour of the assessee by the decision of this Court in the case CIT vs. Shree Panchaganga Sahakari Sakhar Karkhana Ltd. reported in 254 ITR 572. Accordingly, question (e) cannot be entertained. 5. In the result, the Appeal is disposed of accordingly. No order as to costs. (A. R. JOSHI, J.) (J. P. DEVADHAR,J.)