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TMI Blog2015 (4) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... stances taken as conclusive evidence of the commencement and completion of the work. Unless these certificates are obtained by perpetuating a fraud or they can be termed as suspicious, we do not see how the authorities like the Central Board of Direct Taxes or the Commissioner can question the contents and moreso by exhibiting their ignorance completely. If they have a doubt about the genuineness or authenticity of such certificates, nothing prevents them from seeking clarifications from the Municipal or Planning Authorities. Therefore, when the Architect has issued a certificate, based on which the project is undertaken and completed, then, we do not see what more is needed. The Board should have been aware of the fact that no project or construction for development can be undertaken or completed unless the plans for the same are furnished in advance and approval and sanction thereof is obtained from the Municipal Corporation. They have a full set of engineers and experts who apply their mind and sanction and approve the building construction plans and in terms of the Development Control Rules, 1991 which are in place. In such circumstances, we do not see what discrepancy can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the above reliefs have been claimed can be briefly summarized:- The petitioners' Predecessor-in-title are co-owners of the land at village Pahadi, Goregaon (West), Village Chincholi and village Malad (West). Thus, some of the Predecessors-in-title and others jointly are owners and possessing these properties. They formed an Association of Persons. The name and style thereof is M/s. Techniplex. A declaration dated 30th January, 2007 was executed with a view to develop the land for constructing an Information and Techonology Park described as Techniplex-I. A letter of intent was obtained from the Joint Director of Industries (IT), Development of Commissioner (Industries) of the Directorate of Industries, Government of Maharashtra which is dated 12th June, 2007. Petitioner No.1 as the Association of Persons and No.2 as the Member of the said Association of Persons together with others developed this Information Technology Park. They constructed the floor area of 44,558 sq. mtrs. wherein the allocable area is 26,568.35 sq. mtrs. and the area for industrial use is 23,911.51 sq. mtrs., which according to the petitioners is 90% of the allocable area wherein there are 89 industr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a stay application preferred. We are not as much concerned with that aspect of the matter. Suffice it to say that earlier a writ petition was filed in this Court being Writ Petition No.2315 of 2014 against the inaction on the part of the Central Board of Direct Taxes in disposing of the application of petitioner No.1 dated 22nd February, 2011 and staying the demand raised pursuant to the passing of the assessment order. 7. That writ petition was heard by a Division Bench of this Court and a statement was made on behalf of the Board that the application dated 22nd February, 2011 would be disposed of within a period of six weeks from 13th October, 2014. Till then the assessment order dated 24th March, 2014 will not be given effect to but the attachment levied on the property of the petitioners shall continue. The stay application was also rejected. Reference to the details in that regard is to be found in the writ petition from pages 15 to 17 of the paper-book. 8. The petitioners have reiterated the stand and extensively to indicate as to how the compliance have been made with the requirement stipulated in the Scheme. 9. The petitioners are aggrieved and dissatisfied wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, those are not the areas which can be considered for the purpose of the permission which has been granted in terms of the Scheme. 13. Our attention has been invited to the order namely, the order dated 10th September, 2014 which has been passed by the Joint Commissioner of Income Tax on the stay application and the impugned order dated 21st November, 2014. Mr.Sridharan submits that the occupation certificates have been granted phase-wise and floor-wise. That does not mean that the same are not in accordance with the conditions stipulated in the Scheme and the Mumbai Municipal Corporation Act, 1888. In the present case, Mr.Sridharan submits that the reasoning in para 4.3 of the impugned order would indicate that there is no discrepancy. The petitioners' project may consist of many buildings and the commencement certificate and the intimation of disapproval (IOD) may have been granted for the entire project. However, that does not mean that the part completion certificate cannot be granted and in respect of one building. Thus, there was no discrepancy. The understanding of the authorities with regard to the grant of such certificate and compliance with the Municipal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r.Pinto, therefore, relied upon the contents of the affidavit which has been filed in reply to the writ petition, the conditions in the Scheme together with the application. For these reasons, he submits that the writ petition be dismissed. 15. For properly considering the rival contentions, we would like to refer to the Industrial Park Scheme, 2008. 16. Before we make above reference we must express our strong displeasure and deprecate the practice of what is appropriately styled as placing on record the written instructions given to the Government Advocate or Advocate for the revenue. They are being put and placed on record as if they are affidavit-inreply to a writ petition. We are sorry to state that the person as high as the Commissioner of Income Tax filing an affidavit on behalf of the Central Board of Direct Taxes, so also, on behalf of himself and the Commissionerate is unaware that an affidavit ought to be in first person and should not make any reference to all the instructions, either given orally or in writing to the Advocate. 17. The ordinary dictionary meaning of this term is a written statement confirmed by oath, for use as evidence in Court . In terms of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in respect of profits and gains from industrial undertakings or enterprises engaged in infrastructure development, etc. S.80-IA (4) - This section applies- (i) .. (ii) .. (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 economic zone of such industrial park or such special economic zone, as the case may be, to another undertaking (hereafter in this section referred to as the transferee undertaking) the deduction under sub-section (1), shall be allowed to such transferee undertaking for the remaining period in the ten consecutive assessment years as if the operation and maintenance were not so transferred to the transferee undertaking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivities in accordance with the Scheme. Industrial activity inter alia means information technology enabled products or services as certified vide the notification. The procedure for approval is set out in the Scheme and any undertaking which develops, develops and operates and maintains and operates an industrial park may make an application for the notification under section clause (iii) of subsection (4) of section 80IA of the I.T. Act in the prescribed form to the Secretary (ITA-1 Section) to the Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, New Delhi and by calling for the report from other departments and agencies as may be deemed fit by the Central Board of Direct Taxes. Para 4 of the Scheme sets out the criteria for approval. The criteria is set out in its clauses in the following terms : 4. An undertaking shall be considered for notification under clause (iii) of sub section (4) of section 80-1A of the Act, if it fulfills all of the following conditions namely:- (1) the date of commencement of the industrial park shouldbe on or after the 1st day of april, 2006 and not later than 21st of March (2011); (2)---------------- (2A) The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or commercial use in square metres, the allocable area marked for industrial purpose (90%) and the allocable area marked for commercial area (10%). The intention was to use these areas of industrial park and information technology park for commercial use. The petitioners also pointed out that they have been issued what is styled as Intimation of disapproval by the Municipal Corporation of Greater Mumbai dated 18th November, 2006, commencement certificate dated 19th January, 2007 which is based on the plans and / or approvals received from the Municipal Corporation of Greater Mumbai. That is the planning authority for the purpose of the present location of the industrial park and the area as a whole. Then, three occupation certificates have been issued dated 21st November, 2009, 15th October, 2010 and 14th December, 2010. The table in form IPS-I of IV-I indicates the phase-wise certificates. These certificates that have been issued by the Municipal Corporation of Greater Mumbai have been issued pursuant to an application which has been made by a licensed Surveyor. The licensed Surveyor applied on 26th October, 2009 for permission to occupy the part completed IT Building No.4 and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the construction. What we find from reading of the impugned order is that this basic difference or distinction as noted above has been lost sight of. In paragraph 4 of the order, reference is made to para 4(1) of Industrial Park Scheme, 2008. It states that the date of commencement of the industrial park should be on or after 1st April, 2006 but not later than 31st March, 2011. Further, as per para 2(f) of the Scheme, the date of commencement means the date of obtaining the completion certificate or occupation certificate as the case may be, from the relevant local authority certifying that all the required development activities for the project have been completed. We are aware of this satisfaction and which has to be reached by the board. However, in para 4.1 of the impugned order respondent No.1 has held that the petitioners were asked to furnish final occupancy / completion certificate of the industrial park. In response to the same, the petitioners filed the above three certificates. As this condition has not been fulfilled by the petitioners, notice was issued to explain as to how the above condition of the Scheme is fulfilled by it. In response thereto, the petitioners p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in all respects on 14th December, 2010. That certificate to occupy has been granted at Pahadi Village, Goregaon (West) is not disputed so also a completion certificate as indicated in the above paragraphs. Therefore, when the Corporation construed the same as occupation certificate, then, we do not understand as to how in the impugned order it has been held that rather than a completion or occupation certificate, the petitioners have provided a confirmation certificate dated 9th July, 2014 and on that basis requested that they have complied with the conditions and, therefore, a notification be issued. 27. Then, the impugned order proceeds to scrutinise the details. The details, according to the petitioners, which are already provided are that the project consisted of many buildings. The application clearly mentions that the completion certificate and IOD (intimation of disapproval) has been filed for the entire project but the aforementioned part completion has been furnished only for one building No.4. The authorities lost sight of the fact that part of the Scheme and particularly para 3 indicates as to how there is a distinction made between allocable area meaning area all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al park such other facilities have also been developed by the applicant, which form the part of the project. Applicant has developed a club house and other residential / commercial area at the very same location, as is evident from the perusal of the Articles of Agreement of AOP. a. The AOP agreement submitted by applicant states that the Clubhouse has rather been constructed over the area i.e. C.T.S. No.928A part, 928A/15, 928A/16 and 928/17 of Village Pahadi, which has been subsequently leased to Association Hospitality and Developers Pvt. Ltd. (as per the seventh schedule of the agreement). b. As per the Second Schedule, on the plot of land bearing CTS No.928/A Part, 928A/18 to 24 of village Pahadi, Goregaon (West), CT No.1390, 1390/A, 1390/1 to 11 of village Malad (West), Mumbai (admeasuring about 7097.00 sq.mtrs. other buildings, namely Medina Manzil, Balwa Nagar-I, Balwa Nagar- II, A.K. Towers have been constructed). c. The third schedule states that the Techniplex I is located at plots of land bearing CTS No.928A part, 928A/1 to 928/14 of village Pahadi Goregaon (West) and new CTS No.73A/D of Village Chincholi, collectively admeasuring about 7877.16 square Meters. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er at his office, notice in writing of such completion, accompanied by a certificate in the form of Schedule T signed by the person employed under section 344A, who is hereby required immediately upon completion of the work and upon demand by the person employing him to sign und give such certificate to such person, and shall give to the Commissioner all necessary facilities for the inspection of such building or of such work : Provided that- (a) such inspection shall be commenced within seven days from the date of receipt of the notice of completion, and (b) the Commissioner may, within seven days from the date of commencement of such inspection, by written intimation addressed to the person from whom the notice of completion was received, and delivered at his address as stated in such notice, or, in the absence of such address, affixed to a conspicuous' part of the building to which such notice relates- (i) give permission for the occupation of such building or for the use of the building or part thereof affected by such work, or (ii) refuse such permission in case such building has been erected or such work executed so as to contravene any provision of this Act o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btained by perpetuating a fraud or they can be termed as suspicious, we do not see how the authorities like the Central Board of Direct Taxes or the Commissioner can question the contents and moreso by exhibiting their ignorance completely. If they have a doubt about the genuineness or authenticity of such certificates, nothing prevents them from seeking clarifications from the Municipal or Planning Authorities. 31. In the circumstances, we are unable to sustain this conclusion of the authority and that the petitioners have not complied with the provisions of para 4 of the Scheme. 32. Thereafter, what has been indicated is really a fallout of the above. The Architect's certificate dated 9th March, 2011 which was required to be furnished has then been scrutinized and according to the authorities, it contained divergent views. The whole approach appears to be that this certificate would incidate completion of the entire project comprising of many buildings or more than one and that the Corporation should not have allowed seeking a grant of part occupation certificate when the entire building has not been completed. The part occupation certificate phase-wise may be issued bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers is the fact that they allegedly furnished wrong figures of allocable area. However, that was a deficiency, if at all, till January, 2014. That area change has thereafter been corrected and provided by the petitioner. This is referred to in para 8, then, there was no other requirement which remained to be complied with and it was not for the Board to probe by whom the industrial park is going to be used. There is no question of any non compliance with the Scheme simply because the Scheme itself in the paragraph states 'to be allocated'. If these words are inserted, the Park would be taken to be completed and the matter of location and for the purpose of seeking deduction are a different aspect altogether. If the revision as effected by the petitioner had been noted, then, the authorities could have not concluded as to how there is non compliance with the terms and conditions of the Scheme. In para Nos.10 11 of the impugned order, the Board holds that in the application dated 22nd February, 2011 (annexure 7) the total allocable area for commercial use as stated on the 4th floor and 9th floor is 2656.84 sq. mtrs. Now, this figure can be reconciled with the chart furnishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heme takes care and disentitles a person from a notification if the industrial park is not owned by only one undertaking and industrial unit did not undertake activity defined in para 2(j) of the Scheme. To facilitate industrial activity that these conditions are incorporated or inserted. In such circumstances, we do not understand as to how para 4(2a) and 4(6) of the Scheme have been violated. 33. As a result of the above discussion, we set aside the order dated 21st November, 2014. The application of the petitioners dated 22nd February, 2011 together with all further details and specifications provided by them shall be considered afresh and requisite order in accordance with law be passed as expeditiously as possible and within a period of four weeks from the date of receipt of a copy of this order. While considering this application in terms of these directions, the Board shall pass a fresh order and without being influenced by any of the conclusions recorded above. The Board shall strictly act in accordance with the Scheme and the observations made by this Court in the present order. Though a writ of mandamus as claimed or direction to the respondents to issue a notification ..... X X X X Extracts X X X X X X X X Extracts X X X X
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