The Commissioner Of Income Tax – Iii, Pune v. Shri Someshwar Sahakari Sakhar Karkhana Limited

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1061 OF 2011 The Commissioner of Income Tax – III, Pune..Appellant. Versus Shri Someshwar Sahakari Sakhar Karkhana Limited ..Respondent. Mr.Vimal Gupta for the appellant.Mr.Mihir Naniwadekar for the respondent. CORAM : J.P. Devadhar &A.R. Joshi, JJ. P.C. : DATE : 23[rd] January 2012 1.Following questions of law have been raised by the Revenue in this appeal. a)Whether on the facts and in the circumstances of the case and in law, the Tribunal 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 under Section 37(1) or under Section 40A(2)(b) of the Income tax Act, 1961 ?the Tribunal 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 under Section 37(1) or under Section 40A(2)(b) of the Income tax Act, 1961 ? b)Whether the Tribunal 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 Hon’ble Supreme Court in the case of Shri Satpuda Tapi Parisar SSK Limited and others ?issue as against setting aside such issue for further enquiry to the CIT (Appeals) 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 facts and in the circumstances of the case and in law, the Tribunal 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 the Tribunal 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 Tribunal did not err on facts and in law in not treating such difference as constituting ‘distribution of profits’ ?such difference as constituting ‘distribution of profits’ ? e)Whether on the facts and in the circumstances of the case and in law, the Tribunal was correct in holding that the disallowance made by the assessing officer of the khodki charges paid to the members was not justified and in holding that such payments could not be disallowed ?the Tribunal was correct in holding that the disallowance made by the assessing officer of the khodki charges paid to the members was not justified and in holding that such payments could not be disallowed ? 2.As regards 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 Deputy Commissioner of Income Tax V/s. Shri Satpuda Tapi Parisar SSK Limited reported in (2010) 189 Taxman 81 (SC), questions (a) and (b) are liable to be restored to the file of the Commissioner of Income Tax (Appeals) for fresh adjudication. Accordingly, questions (a) and (b) are restored to the file of the Commissioner of Income Tax (Appeals) in the light of the judgment of the Apex Court in the case of Shri Satpuda Tapi Parisar SSK Limited (supra). 3.As regards questions (c) and (d) are concerned, counsel for the parties state that similar questions raised by the Revenue in the case of Commissioner of Income Tax V/s. Kisanveer Satara Sahakari Sakhar Karkhana Limited, being Income Tax Appeal No.930 of 2008 has been rejected by this Court on 30[th] June 2009. For the reasons stated therein, questions (c) and (d) cannot be entertained. 4.As regards question (e) is concerned, counsel for the parties state 3.As regards questions (c) and (d) are concerned, counsel for the parties state that similar questions raised by the Revenue in the case of Commissioner of Income Tax V/s. Kisanveer Satara Sahakari Sakhar Karkhana Limited, being Income Tax Appeal No.930 of 2008 has been rejected by this Court on 30[th] June 2009. For the reasons stated therein, questions (c) and (d) cannot be entertained. 4.As regards question (e) is concerned, counsel for the parties state that similar question raised by the Revenue have been answered in favour of the assessee in the case Commissioner of Income Tax V/s. Shree Panchaganga Sahakari Sakhar Karkhana Limited reported in (2002) 254 ITR 572 (Bom). In this view of the matter, question (e) cannot be entertained. 5.Accordingly, the appeal is disposed off with no order as to costs. (A.R. Joshi, J.) (J.P. Devadhar, J.)