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TMI Blog2021 (3) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... 2021 - Hon ble Shri J. Sudhakar Reddy, AM and Hon ble Shri A. T. Varkey, JM For the Appellant : Shri S. Jhajharia, FCA, Ld.AR For the Respondent : Shri Dhrubajyoti Ray, JCIT, Ld.DR ORDER SHRI J.SUDHAKAR REDDY, AM This is an appeal filed by the assessee directed against the order of the Learned Commissioner of Income-tax (Appeals), 12, Kolkata dated 30-09-2019 for the assessment year 2009-10. 2. The assessee company is engaged in the business of real estate development. It had developed an Industrial Park namely Salarpuria Softzone at SY No. 81/1, Bellandur Village, Varthur Hobli, Bangalore-560 027. During the year under consideration it declared income mainly from rental receipts from operating of said Industrial Park. It had claimed deduction u/s. 80IA(4)(iii) of the income-tax Act, 1961 (hereinafter, referred to as the Act ), to the extent of ₹ 1,22,84,088/-. This deduction was allowed by the Learned Assessing Officer ( in short, the Ld. AO) in the original assessment order passed u/s. 143(3) of the Act on 27-12-2011. Thereafter, the assessment was re-opened u/s. 147 of the Act and the Ld. AO in his order passed u/s. 147 r.w.s 143(3) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances is wholly bad, illegal and unjustified and uncalled for and void ab initio for both on point of law as well as fact and in the circumstances the Ld. CIT(A) is wholly unjustified in confirming the said action of the AO and in view of the facts and in the circumstances the proceeding U/S 147 may kindly be quashed/cancelled. 4.For that in view of the facts and in the circumstances the AO having initiated the proceeding U/S 147 without any application of mind, only on the basis of observation of the Central Board of Direct taxes ( in short CBDT ) and a request made by the CBDT on the basis of that observation that the approval for deduction U/S 80IA(4)(iii) of the Act earlier granted by the Ministry of Commerce and Industry, Department of Industrial Policy Promotion should be withdrawn by that Ministry under intimation to the CBDT ignoring the fact that such of the CBDT had not been still accepted by the concerned Ministryand also that a writ was pending and hence the matter is sub-judice and hence the entire proceedings u/s. 147 based merely on the change of opinion is wholly bad, illegal, unjustified and uncalled for and in the circumstances the Ld. CIT(A) is wholly unjust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd of Direct Taxes (CBDT) Notification [ S.O. 3035( E )] dated 8th September, 2020 published in the Gazette of India further justifies the assessee s claim. Therefore, he submits before us that the issue in this regard stands covered in favour of assessee 5. Learned Departmental Representative, Mr. Dhrubajyoti Ray, JCIT, on the other hand, opposed the above submissions of the assessee and submitted that the Ld. AO had rightly rejected the claim of the assessee. He relied on the order of the Ld. CIT(A) at paras (iv) and (v). 6. After hearing the rival contentions, we find that this Tribunal in the case of M/s. Salapuria Softzone (supra) vide paras 7 to 12 at pages 5 to 10 held as follows:- 7. In view of the above factual position, we are of the view that the entire Industrial Park was located in the Industrial Park much before expiry of .. year from the date of commencement as mentioned in the application and which was duly approved by the Empowered Committee. The assessee had already enclosed a copy of approval dated 25.07.2006 at assessee s paper book page 52, Vol-I. We are reproducing relevant para 5(2i) of the Scheme which reads as under: In case the commencem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of the authority that the industrial park was not ready and under construction is not true. The completion certificate of all the electrical drawing and infrastructure were completed on 20.03.2007 including the transformers and the other electric equipments and the official memorandum was issued by the Chief Electrical Inspector to Govt. of Karnataka, Bangalore dated 20.03.2007, which proves that all the equipments and electric works were completed before 31.03.2007. The amount of the electrical bills is always based on the consumption made by the clients. Assessee has no control over the consumption infrastructure for the electrical connection in the industrial park was ready o 20.03.2007, date of occupation certificate issued by the Bangalore Development Authority on 23.06.2007 which the assessee had Bangalore Development Authority on 29.12.2006 with a provision Completion Certificate issued by the Architech. It is not within the control of the assessee company to obtain completion certificate from Bangalore Development Authority and contention of the assessing authority is not correct. The Provisional completion certificate issued by M/s. Venkataramannan Associates da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f CIT Vs. Ittina Properties (P) Ltd ITA No. 556 of 2013 and 105 of 2014 dated 15.07.2 held in respect to controversy regarding the date on which the project was completed to eligible for the benefit of section 80IB of the Act. Hon ble High court held as under:- 6. One of the project has been sanctioned subsequent to the Act. The point of controversy is regarding the date on which the-project was completed to be eligible for the benefit of the said provision. The Revenue' contends, the completion certificate issued by the Village Patnchayat is not valid and therefore the assessee is-not entitled to the said benefit. Admittedly the plan is sanctioned by the BDA. The BDA has not issued any completion certificate. The reason being,' in the BDA Act or the Karnataka Municipal Corporation Act, there is no provision for issue of completion certificate. The provision in the Karnataka Municipal Corporation Act is for issuance of occupancy certificate. When the statute does not provide for issue of a completion certificate, if the authorities were insisting on such certificate, the assessee has gone to the Village Panchayat within whose limits the property is situated and ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, Hon'ble Gujarat High Court in the case of Creative Infocity Ltd. Vs. Un Secretary (2012] 19 Taxmann.com 270 (Guj.) also held that, once Industrial Park was approved by Ministry of Commerce Industry, CBDT has to suo motto issue notification and if there is delay on the part of the CBDT in issuing notification, it would not warrant assessee be denied benefit of deduction u/s. 80IA(4)(iii) of the Act. Hon'ble High Court finally held under: Once approval is given by the Commerce Ministry to the petitioner in terms of sub-rule [2] of Rule 18C, the Board is duty bound to notify the industrial parks for benefits under Section 80-IA without any further investigation as to whether the petitioner has complied with the terms and conditions envisaged in the scheme. Since the power of grant of approval has been conferred upon the Commerce Ministry, in the absence of any express provision ill the Rules, it should be presumed that the authority, which has given approval, has the power revocation and examination of compliance of the conditions upon which the approval has been accorded. Therefore, it is the duty of the Commerce Ministry to decide whether an industrial undertaki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able in law. The Union Government has further liberalised the scheme in 2008 by requiring that the undertaking shall. begin to develop the industrial park by a stipulated date. In this case, approvals had been granted on 24 July 20q6 which was several months after 31 March 2006 when the Scheme of 2002 was to expire. 22. During the course of the hearing, learned Counsel appearing on behalf of the Revenue relied on the fact that though the Petitioners had initially stated in their application that they would have eight units in the industrial. park, this figure was sought to be reduced to three. Learned Counsel submitted that Para 9(2) of the Scheme speaks that the tax benefits under the Act can be availed of only after the number of units indicated in the application are located in the industrial park. In response to this, the attention of the Court was drawn by the learned Counsel. for the Petitioners to the Dmt 36 wp744-11jact that the Petitioners had in their original application stated thatthere would be eight units; that the proposed area of the industrial park would be 8261-56 sq. mt.; and that the proposed allocable area of would be 6529.42 sq. mt. By their further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ministry of Commerce and Industry (Department of Industrial Policy and Promotion), number S.O. 354( E ), dated the 1st day of April, 2002, for the period beginning on the l day of April, 1997 and ending 011 the 31st day of March, 2006; And whereas M/s Softzone Tech Park Ltd. situated at Survey No.80/1, 81/1, 81/2, Bellandur village, Varthur Hobli, Bangalore - 560037 is developing an Industrial Park at Survey No_80/1, 81/1, 8112, Belbodru- village, Varthur Hobli. Bangalore - 560037; 8. In view of above discussion, we respectfully follow the proposition of law by the coordinate bench of this Tribunal in assessee s own case and in view of the Notification of the Central Govt. referred above, the order of the Ld. CIT(A) has to be reversed on this issue on the grounds on which the disallowance of claim was made are not legally and factually sustainable. Hence, ground nos. 6, 7 8 of assessee s appeal are allowed. 9. On ground nos. 1 to 5 the Ld. Counsel for the assessee submitted that he is no pressing the same for the reasons that the issue on merits is covered in favour of the assessee. Hence, we dismiss these grounds. 10. In the result, the appeal of assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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