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TMI Blog2020 (3) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... ated on technicalities or minor deviations by applying the Industrial Park Scheme 2008 which was not in force during the relevant period. The arguments of the learned counsel for the Revenue on these grounds requires to be negated. The action of the respondent No. 1 instructing respondent No. 2 vide official memorandum dated March 1, 2012 to withdraw the approval suffers from the vice of arbitrariness and lacks jurisdiction. In terms of the Scheme 2002, respondent No. 1 is empowered to issue the notification under rule 18C of the Rules in compliance with the approval order of respondent No. 2 not to adjudicate upon it. The language employed in the official memorandum impugned would not indicate that the instructions therein were only recommendatory. Even if the same to be construed as recommendatory, no such recommendation has been accepted by respondent No. 2. Respondent No. 1 is directed to notify the petitioner s industrial park under rule 18C of the Income-tax Rules, 1962 in terms of the Industrial Park Scheme, 2002 in an expedited manner, in any event, not later than three months from the date of receipt of certified copy of the order. X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 as well as before the second respondent not to consider the office memorandum issued by the first respondent. 4. It is the grievance of the petitioner that the request of the petitioner to issue notification under rule 18C(4) has not yielded any positive results. On the contrary, the office memorandum dated March 1, 2012 issued by respondent No. 1 directing respondent No. 2 to withdraw the approval without providing an opportunity of hearing to the petitioner is in flagrant violation of the principles of natural justice and lacks jurisdiction. 5. Learned counsel Sri Chythanya appearing for the petitioner submitted that the Industrial Park Scheme, 2002 does not empower respondent No. 1 to adjudicate upon the approval granted by the second respondent under the said Scheme. Rule 18C(2) of the Rules during the relevant period contemplates that the undertaking shall be duly approved by the Ministry of Industry and Commerce in the Central Government under the scheme for industrial park or special economic zones notified by that Ministry. It was argued that the date of commencement of the industrial park was March 15, 2007, well within the period of one year stipulated under the Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority on June 23, 2007, the request of the petitioner has to be negated. 7. I have carefully considered the rival arguments advanced by the learned counsel for the parties and perused the material on record. 8. In terms of the approval of the Government of India for setting up of an industrial park, in terms of the "Industrial Park Scheme, 2002" notified by the Department in exercise of powers under section 80-IA sub-section (4)(iii) of the Act, expected date of commencement of industrial park was March 28, 2006. Clause 5(ii) of the conditions stipulated therein, reads thus : "(ii) in case the commencement of industrial park is delayed by more than one year from the date as indicated in para 1(xi) of this approval letter, fresh approval shall be required under the Industrial Park Scheme, 2002, for availing of benefits under sub-section (4)(iii) of section 80-IA of the Income-tax Act, 1961." Para 1(xi) specifies the expected date of commencement of the industrial park as March 28, 2006. 9. Annexure H dated December 29, 2006 addressed by the predecessor of the petitioner to the Bangalore Development Authority for issuance of occupation certificate indicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted by an approving committee constituted for such pur pose. The manner, in which, the inspection was conducted and the time frame taken by the competent authority are all beyond the con trol of the assessee. Thus, a holistic interpretation of the provisions has to be made and if the same is done, the attendant circumstances as to how the assessee was treated by the Department assume impor tance." 12. In the case of Pr. CIT v. Ambey Developer P. Ltd. [2017] 399 ITR 216 (P&H) ; [2018] TIOL 207, the hon'ble High Court of Punjab and Haryana has observed thus (page 220 of 399 ITR) : "In the present case, therefore, it is an admitted fact that the appel lant applied for the completion certificate along with the architect's certificate in the prescribed form, copy of approved map, etc., on March 29, 2010, i.e., within the stipulated period of five years as enu merated in section 80-IB(10) of the Act. It is also observed during the course of assessment proceedings that the assessee has sold flats and same were occupied by some of the owners NOC was also obtained from various Departments. The Assessing Officer in his report has submitted that the explanation of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity in issuing the occupancy certificate would not obliterate the rights of the petitioner to avail of the benefit under section 80-IA(4) of the Act vitiating the very purpose of the approval granted by respondent No. 2. If the compliance is made on the part of the petitioner, the same cannot be frustrated on technicalities or minor deviations by applying the Industrial Park Scheme 2008 which was not in force during the relevant period. The arguments of the learned counsel for the Revenue on these grounds requires to be negated. 14. The action of the respondent No. 1 instructing respondent No. 2 vide official memorandum dated March 1, 2012 to withdraw the approval suffers from the vice of arbitrariness and lacks jurisdiction. In terms of the Scheme 2002, respondent No. 1 is empowered to issue the notification under rule 18C of the Rules in compliance with the approval order of respondent No. 2 not to adjudicate upon it. The language employed in the official memorandum impugned would not indicate that the instructions therein were only recommendatory. Even if the same to be construed as recommendatory, no such recommendation has been accepted by respondent No. 2. 15. In the circum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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