The Commissioner Of Income Tax - Iii, Pune v. Ajinkyatara Ssk Limited

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.4033 OF 2010 The Commissioner of Income Tax - III, Pune..Appellant. Versus Ajinkyatara SSK Limited, ..Respondent. Mr.Vimal Gupta for the appellant. Mr.Mihir Naniwadekar for the respondent. CORAM : J.P. Devadhar & A.A. Sayed, JJ. P.C. : DATE : 29[th] July, 2011. 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 u/s.37(1) or u/s.40A(2)(b) of the Income Tax Act, 1961 ?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 ? (B)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 (A) as required by the order of the Hon'ble Supreme Court in the case of Shri Satpuda Tapi Parisar SSK Limited and others ?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 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 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 regard 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 Commissioner of Income Tax V/s. Shri Satpuda Tapi Parisar SSK Limited reported in 326 ITR 42 (S.C.), the matter should be restored to the file of the Commissioner of Income-tax (Appeals). Accordingly, questions (A) and (B) are restored to the file of the Commissioner of Income Tax (Appeals) for consideration afresh in the light of the judgment of the Apex Court in the case of Shri Satpuda Tapi Parisar SSK Limited (Supra). 3.As regard questions (C) and (D) are concerned, counsel for the parties state that the said questions have already been answered by this Court against the Revenue in the case of Commissioner of Income-tax V/s. Kisanveer Satara SSK Limited, being Income Tax Appeal No.930 of 2008 decided on 30th June 2009. In this view of the matter, questions (C) and (D) cannot be entertained. 4.The appeal is accordingly disposed off with no order as to costs.