1 itxa3447-10 sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.3447 OF 2010 The Commissioner of Income Tax-III, Pune ..Appellant. V/s. Rayat Sahakari Sakhar Karkhana ..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. Four questions of law are raised by the revenue in this appeal, which 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 u/s.37(1) or U/s.40A(2)(b) of the Income Tax 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 Court in the case of Shri Satpuda Tapi Parisar SSK Ltd. and others ? (3) 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 ? 2 itxa3447-10 (4) Whether the ITAT did not err on facts and in law in not treating such differences as constituting distribution of profits ? 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 regard the third and fourth questions are 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 and fourth questions 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.)