1 itxa5559-10 agk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.5559 OF 2010 The Commissioner of Income Tax – IV, Pune ..Appellant. Versus Solapur District Co-operative Milk Producers and Process Union Limited, Solapur ..Respondent. Mr.Vimal Gupta for the appellant. Mr.Mihir Naniwadekar for the respondent. CORAM : J.P. Devadhar & K.K. Tated, JJ. DATE : 8th September 2011 P.C. : 1. Following substantial questions of law are raised by the Revenue in this appeal. a) Whether on the facts, in law and in the circumstances of the case the Tribunal is justified in deleting the addition made by the Assessing Officer of Rs.4,48,64,004/- on account of “Final Milk Rate Difference” ? b) Whether on the facts, in law and in the circumstances of the case the Tribunal is justified in allowing the appeal in favour of the assessee in respect of additional milk price paid by the assessee to members and non-members during the year of Rs.4,48,64,004/- holding the same as non-appropriation of the net profit though the Resolution is passed at the year end ? c) Whether on the facts, in law and in the circumstances of the case the Tribunal is justified in holding that such amount is deductible under Section 80P(2) of the Act even though the minimum price is agreed upon by the 2 itxa5559-10 members of society in respect of cow milk and buffalo milk ? d) Whether on the facts, in law and in the circumstances of the case the Tribunal is justified in allowing the appeal in favour of the assessee in respect of additional milk price paid to members and non-members holding the same as deductible under Section 80P(2) of the Act where there is no specific mention in the Act and the meaning is stretched beyond the point of legislative intent as ruled by the Apex Court of India in the case of Dharmendra Textiles 306 ITR 277 that the Courts can not further interpret the legislative Act beyond the legislative intention ? e) Whether on the facts, in law and in the circumstances of the case the Tribunal is justified in allowing the appeal in favour of the assessee in respect of additional milk price paid to members and non-members holding the same as deductible under Section 80P(2) of the Act where the Hon’ble High Court has ignored the facts collected during the course of survey under Section 133A of the Act ? f) Whether on the facts, in law and in the circumstances of the case the Tribunal is justified in allowing the appeal in favour of the assessee inspite of the CNDT Circular No.117 dated 22-08-1973 to allow the rebate to the members of consumer Cooperative society and over and above such rebate the assessee appropriating the net profit at the year end which may be followed every year but it is no appropriate principle of accountancy to bifurcate the net profit to the view of reduce the taxation, in such cases the assessee is not following a method by which the correct profit is not deductible or workable in view of the landmark decision by the Supreme Court of India in case of Tutikorin Chemicals and Alkalis 227 ITR (SC) ? 2. Counsel for the parties state that as far as questions (a), (b) and (f) are concerned, the same are covered against the Revenue by the decision of this Court in the case of Commissioner of Income-tax V/s. Solapur District Cooperative Milk Products and Process Union Limited reported in (2009) 315 ITR 304 (Bom). Hence, questions (a), (b) and (f) cannot be entertained. 3. As regards remaining questions are concerned, counsel for the parties state that the said questions does not arise from the order of the 3 itxa5559-10 Income Tax Appellate Tribunal. Hence, remaining questions (c), (d) and (e) cannot be entertained. 4. The appeal is accordingly dismissed with no order as to costs. (K.K. Tated, J.) (J.P. Devadhar, J.)