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TMI Blog2012 (4) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... tter dated 29th August, 2007 first and final completion certificate issued by Pune Municipal Corporation dated 29th August, 2007. By letter dated 21st/22nd May, 2009, the petitioner was informed that their case was considered by the Empowered Committee in their meeting held on 18th September, 2008 and since the date of commencement of park was after 31st March, 2006, their application was not covered under the 2002, Scheme. The petitioner was asked to explain why the application should not be treated as closed being ineligible under the 2002, Scheme. Attention of the petitioner was drawn to the Industrial Park Scheme, 2008 (2008, Scheme) notified by the Central Board of Direct Taxes, Department of Revenue on 8th January, 2008 in respect of parks which had come up on or after 1st April, 2006. 3. The petitioner submitted their justification dated 22nd June, 2009. However, vide letter dated 28th July, 2009, the petitioner was informed that the 2002, Scheme which was administered by the Ministry of Commerce and Industries had ended on 31st March, 2006. Thereafter, the 2008, Scheme was notified on 8th January, 2008 and parks set up on or after 1st April, 2006 but not later than 31st Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate was issued. The mandate of the Act prevails. (4) Principle of promissory estoppel applies as the respondents had accepted that the 2002, Scheme would be applicable to the petitioner. 7. In order to appreciate and decide the contentions, we are required to notice and consider Section 80 IA(4)(iii) and the proviso thereto. Section 80 IA(4)(iii) reads as under: "Section 80-IA. Deductions in respect of profits and gains from industrial undertakings or enterprises engaged in infrastructure development, etc. ** ** ** (4) This section applies to- ** ** ** (iii) any undertaking which develops, develops and operates or maintains and operates an industrial park or special economic zone] notified by the Central Government in accordance with the scheme framed and notified by that Government for the period beginning on the 1st day of April, 1997 and ending on the 31st day of March, 2006: Provided that in a case where an undertaking develops an industrial park on or after the 1st day of April, 1999 or a special economic zone on or after the 1st day of April, 2001 and transfers the operation and maintenance of such industrial park or such special eco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he words "31st Day of March, 2011" vide Finance Act No. 2 of 2009 with retrospective effect from 1st April, 2009. 11. In exercise of powers conferred under sub-section 4 to Section 80 IA, Ministry of Commerce and Industry had framed 2002, Scheme which was duly published in the Gazette of India Extraordinary being S.O. No. 354(E). The 2002, Scheme postulated two modes of grant of approval; (i) automatic approval and (ii) non-automatic approval. The petitioner's case was not covered by automatic approval under the 2002, Scheme and no such claim is made in the petition. As noticed above, the petitioner had filed an application dated 23rd September, 2006 under non-automatic approval mode. Non automatic application under the 2002, Scheme was to be examined by the Empowered Committee constituted under clause 7 of the 2002, Scheme. Such applications were to be decided on case to case basis. 12. It may be relevant to notice and reproduce clauses 3 and 9.1 of the 2002, Scheme, as these are relevant: "3. Period of operation of the scheme:- This scheme shall be applicable for any undertaking which develops, develops and operates or maintains and operates an Industrial park for the period b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pation certificate, as the case may be, from the relevant local authority, certifying thereby that all the required development activities for the project have been completed; ** ** ** 4. Criteria for approval.- (1) The date of commencement of the Industrial Park should be on or after the 1st day of April 2006 and not later than 31st of March 2009;" 15. Before we deliberate and interpret the aforesaid provisions and examine the contentions of the petitioner, one aspect may be clarified. The petitioner does not dispute that they do not meet the prescribed parameters stipulated in the 2008, Scheme and do not satisfy the two conditions of the minimum constructed area and the number of units as stipulated in the 2008, Scheme. Thus, for the petitioner to succeed in the present writ petition, we have to hold that 2002, Scheme should be applied and it is in this context that the petitioner has raised the aforesaid four contentions. 16. Section 80 IA(4)(iii) postulates and requires that there should be a scheme framed and notified by the Central Government and the undertaking in question which develops; develops and operates; or maintains and operates; an industrial park or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onance with clause (iii) to Section 80 IA(4). The said clause gives primacy and accepts that an undertaking which is notified in accordance with the scheme framed and notified by the Central Government qualifies for the said deduction. Thus, in the present case, when an application was filed on 23rd September, 2006, there was no scheme in place/operation, which had been framed and notified by the Central Government. The 2002, Scheme had lapsed as it was effective, notified and applicable upto 31st March, 2006. The 2002, Scheme was no longer in operation. 18. It is not possible to agree with contention of the petitioner that the second proviso to Section 80 IA(4)(iii) substituting the words/date "31st March, 2006" with "31st March, 2009" had the effect of modifying or substituting the 2002, Scheme and the effect thereof was that the 2002, Scheme continued to remain operative at least till the 2008, Scheme was formulated and notified. This is not what is indicated and stated in the second proviso. The second proviso was separately added and the date stated in Section 80 IA(4)(iii) was not substituted by the new date, i.e., the date 31st March, 2006 was not substituted with the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground of creating uncertainty, but this by itself in the factual matrix of the present case and the language of Section 80 IA(4)(iii) cannot and is not a ground to hold that the 2002, Scheme continued to be in operation till 8th January, 2008. The legal position, as stated above, is that with effect from 1st April, 2006 there was no scheme which had been framed and was gazetted. Therefore, no undertaking could take advantage or benefit of Section 80 IA(4)(iii) of the Act. A new scheme was formulated on 8th January, 2008 and was made applicable with effect from 1st April, 2006. The retrospective effect is to give and confer benefit to undertakings covered by the 2008, Scheme. Thus, no benefit has been withdrawn by giving retrospective effect to the 2008, Scheme. Advantage has been conferred on the undertakings, which otherwise they would not have derived but for the 2008, Scheme. In these circumstances, we are not required to deal with the other contentions raised by the petitioner or the judgments relied upon by the petitioner, viz., Pournami Oil Mills v. State of Kerala, [1987] 165 ITR 57 (SC), Sales Tax Officer v. K.I. Abraham, [1967] 3 SCR 518, Second Income Tax Officer v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Government in accordance with the Scheme framed for the period beginning on 1 April 1997 and ending on 31 March 2006. An undertaking is eligible if it has either developed; or developed and operated; or operated and maintained an industrial park in accordance with the Scheme. The first aspect of the matter which needs emphasis is that clause (iii) of Section 80IA (4) requires that the Scheme has to be notified for the period between 1st April 1997 and 31 March 2006. The statutory provision does not contain a specific requirement to the effect that the industrial park had to be developed on or before 31 March 2006. The requirement is that the industrial park has to be developed in accordance with the Scheme framed by the Central Government for the period between 1 April 1997 and 31 March 2006. The Scheme which was framed by the Central Government stipulated the requirement for the grant of approval in those cases which did not fall in the automatic approval route. Para 3 of the Scheme lays down the period of operation of the Scheme. Under Para 3 the Scheme is to be applicable to any undertaking which develops, develops and operates or maintains and operates an Industrial P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraph does not assist or help the contention of the petitioner. What is stated in the said paragraph is that approvals were granted under the 2002, Scheme even after 31st March, 2006 and as late as in April, 2007. The said paragraph does not indicate or state the date on which the applications were filed and whether the applications were received before 31st March, 2006. During the course of hearing before us, the petitioners were asked whether they had contended or claimed that applications received after 31st March, 2006 have been processed and approved under the 2002, Scheme. It was stated that there was no such averment or plea, but it was for the respondent to explain and state. Before us, a list of all pending applications as on 3rd June, 2008 downloaded from the website of the respondent has been filed. The said details do not show that any applications filed after 31st March, 2006 had been granted approval under the 2002, Scheme. 25. The plea of promissory estoppel has no merit. The petitioner claims that they had started development of the industrial park after obtaining consent/commencement certificate in 2005. However, they filed an application only on 23rd Septemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication but had asked for certain information and details before the matter was placed before the Empowered Committee because there was uncertainty and ambiguity. Doubt/uncertainty is not a promise. 26. The fact noticed above indicate that the petitioner had filed the application for registration on 23rd September, 2006 after the 2002, Scheme had come to an end, as the scheme was applicable only upto 31st March, 2006. The industrial park set up by them was not operational/functional by 31st March, 2006. It became operational on a subsequent date. The completion certificate for the said park issued by the Pune Municipal Corporation is dated 29th August, 2007. The petitioner cannot, therefore, claim notification under the 2002, Scheme. 27. We may note that the policy dated 8th January, 2008 has not been challenged before us on merits. The ground of challenge before us was limited to the retrospective operation and to the extent that there is conflict between the 2008 scheme and the parent Act, i.e., Section 80 IA (4) as the proviso had extended the period of the 2002 policy. We have rejected these contentions. A policy decision, though not beyond the scope and power of judicial rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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