M/s Soft Zone Tech Park Ltd., Kolkata v. I.T.O.,Ward-1(4), Kolkata

ITA 2483/KOL/2019 | 2009-2010
Pronouncement Date: 05-03-2021 | Result: Partly Allowed

Appeal Details

RSA Number 248323514 RSA 2019
Assessee PAN AAMCS5238D
Bench Kolkata
Appeal Number ITA 2483/KOL/2019
Duration Of Justice 1 year(s) 3 month(s) 13 day(s)
Appellant M/s Soft Zone Tech Park Ltd., Kolkata
Respondent I.T.O.,Ward-1(4), Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 05-03-2021
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 05-03-2021
Date Of Final Hearing 02-03-2021
Next Hearing Date 02-03-2021
Last Hearing Date 28-01-2021
First Hearing Date 16-11-2020
Assessment Year 2009-2010
Appeal Filed On 21-11-2019
Judgment Text
1 IT A NO . 2483/KOL/2019 A.Y 2009 - 10 M/S. SOFT ZONE TECH PARK LTD A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOLKATA [BEFORE HONBLE SHRI J. SUDHAKAR REDDY AM AND HONBLE SHRI A. T. VARKEY JM ITA NO. 2483/KOL/2019 ASSESSMENT YEAR: 20 09 - 10 M/S. SOFT ZONE TECH PARK LTD PAN: AAMCS 5238D V S. I.T.O. WARD 1(4) KOLKATA APPELLANT RESPONDENT DATE OF HEARING 02 - 03 - 2021 DATE OF PRONOUNCEMENT 05 .0 3 .202 1 FOR THE APPELLANT SHRI S. JHAJHARIA FCA LD.AR FOR THE RESPONDENT S HRI DHRUBAJYOTI RAY JCIT LD.DR ORDER SHRI J.SUDHAKAR REDDY A M THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) 12 KOLKATA D ATED 30 - 09 - 2019 FOR THE ASSESSMENT YEAR 20 09 - 10 . 2. THE ASSESSEE COMPANY IS ENG AGED IN THE BUSINESS OF REAL ESTATE DEVELOPMENT. IT HAD DEVELOPED AN I NDUSTRIAL P ARK 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 RENT AL RECEIPTS FROM OPERATING OF SAID I NDUSTRIAL P ARK. IT HAD CLAIMED DEDUCTION U/S. 80IA(4)(III) OF THE INCOME - TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT) T O THE EXTENT OF RS. 1 22 84 088/ - . THIS DEDUCTION WAS ALLOWED BY THE LEARNED ASSESSING O FFICER ( 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 - OP E NED U/S. 147 OF THE ACT AND THE LD. AO IN HIS ORDER PASSED U/S. 147 R.W.S 143(3) OF THE ACT ON 3 - 03 - 2015 DI SALLOWED THE CLAIM OF DEDUCTION U/S. 80IA(4)(III) OF THE ACT OF RS. 1 22 84 088/ - . AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LEARNED CIT(A). 2 IT A NO . 2483/KOL/2019 A.Y 2009 - 10 M/S. SOFT ZONE TECH PARK LTD 3. IN ITS APPEAL BEFORE THE LD. CIT(A) BOTH THE LEGALITY OF RE - OPENING AS WELL AS DENIAL OF CLAIM OF DEDUCTION U/S. 80IA(4)(III) WAS CHALLENGED BY THE ASSESSEE. THE LD. CIT(A) UPHELD THE ORDER OF THE LD.AO. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS: - 1. F OR TH A T IN VIEW OF THE F A CTS AND I N THE C I RC U MSTAN C ES T H E OR D ER U / S 143(3) / 147 DT . 30.3 . 2015 IS WHOLLY BA D ILLEGAL UNJ U STIF I ED AND U N CA L LED FOR BOTH ON POINTS OF LAW AS WELL AS FACTS AND IN VIEW OF THE FACTS A ND IN THE CIRCUMSTANCES SUCH ORDER IS LIABLE TO BE QUASHED / CANCELLED AND IN VIEW OF THE FACTS A ND IN THE CIRCUMSTANCES THE LD . CIT(A) IS WHO L LY UNJUSTIFIED IN CONFIRMING THE SAID ACTION OF THE AO AND IN VIEW OF T H E FA C TS AND I N THE CI R CUMST AN C E S IT MAY KINDLY BE HELD ACCORDINGLY. 2. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES THE PROVIS ION OF SEC . 147 DID NOT VALIDLY LIE IN THE CASE OF YOUR APPELLANT COMPANY AND IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES SUCH PROCEEDINGS U / S 147 INITIATED AGAINST YOUR APPELLANT COMPANY IS WHOLLY BAD ILLEGAL UNJUSTIFIED AND UNCALLED FOR BOTH ON P OINTS OF LAW AS WELL AS FACTS AND IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES SUCH PROCEEDINGS U / S 147 IS LIABLE TO BE QUASHED ! CANCELLED AND IN THE CIRCUMSTANCES THE LD . CIT(A) IS WHO L LY UNJUSTIFIED IN CONFIRMING THE SAID ACTION OF THE AO AND IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES IT MAY KINDLY BE HELD ACCORDINGLY . 3. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THERE BEING NO FAILURE IN THE PART OF YOUR PETITIONER COMPANY TO DISCLOSE ANY MATERIAL FACTS NECESSARY FOR A SSESSMENT SINCE A DETAILED EXPLANATION REGARDING ALLOWABILITY OF DEDUCTION CLAIMED U / S 80IA( 4)(III) ALONG WITH ALL THE NECESSARY DOCUMENTS WERE FURNISHED BEFORE THE AO DURING THE REGULAR ASSESSMENT PROCEEDINGS U / S 143(3) AND HENCE THERE WAS NO FAILURE ON PART OF YOUR PETITIONER TO DISCLOSE ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT AND IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES QUESTION OF MAKING ANY DISCLOSURE IN RESPECT OF SUCH DEDUCTION U / S 80IA(4)(III) AT THE TIME OF ORIGINAL ASSESSMENT U / S 143(3) DID NOT ARISE AND HENCE PROCEEDINGS U / S 147 IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES I S 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. CI T(A) IS WHOLLY UNJUSTIFIED IN CONFIRMING THE SAID ACTION OF THE AO AND IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES IT MAY KINDLY BE HELD ACCORDINGLY. 3 IT A NO . 2483/KOL/2019 A.Y 2009 - 10 M/S. SOFT ZONE TECH PARK LTD 5. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES THE AO HAVING FAILED TO DISPOSE OF THE OBJEC TION PETITION FILED AND THE OBJECTION PETITION HAVING NOT BEEN DISPOSED OF BY THE AO THE ENTIRE ORDER U/S 147/143(3) IS WHOLLY BAD ILLEGAL UNJUSTIFIED UNCALLED FOR AND VOID AB INITIO BOTH ON POINTS OF LAW AS WELL AS FACTS AND IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES THE OLD. CIT(A) IS WHOLLY UNJUSTIFIED IN CONFIRMING THE SAID ACTIN OF THE AO AND IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES IT MAY KINDLY BE HELD ACCORDINGLY. 6. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES THE LD. CIT(A ) ERRED IN NOT GRANTING BENEFIT FOR DEDUCTION ULS 80IA(4)(III) AND AS SUCH THE LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF THE AO WITHOUT APPRECIATING THE FACT THAT THE APPELLANT IS ENTITLED TO SUCH DEDUCTION AND IN VIEW OF THE FACTS AND IN THE CIRCUMSTAN CES IT MAY KINDLY BE HELD ACCORDINGLY. 7. WITHOUT PREJUDICE TO GROUND NO. 7 ABOVE THE LD. CIT(A) ERRED IN NOT ALLOWING DEDUCTION/S 80IA(4)(III) FOR RS. 1 22 84 088/ - AND IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES KINDLY BE HELD ACCORDINGLY. 8. WIT HOUT PREJUDICE TO GROUNDS NO. 7 & 8 ABOVE THE LD. CIT(A) ERRED IN NOT APPRECIATING THE FACT THAT THE DEDUCTION U / S 80IA(4)(III) HAD BEEN ALLOWED FOR THE IMPUGNED UNDERTAKING I.E. 'SALARPURIA SOPFTZONE' IN THE PRECEDING A.Y S 2008 - 09 & 2009 - 10 AND THE LD . CIT(A) ERRED IN NOT FOLLOWING THE ORDER OF THE HON'BLE ITAT KOLKATA BENCHES AND IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES IT MAY KINDLY BE HELD ACCORDINGLY. 9. THAT THE APPELLANT CRAVES LEAVE TO ADD ALTER AMEND AMPLIFY OR MODIFY ANY OR ALL OF THE ABOVE GROUNDS OF APPEAL AT OR BEFORE THE TIME OF HEARING OF THE APPEAL. 4. LEARNED COUNSEL FOR THE ASSESSEE MR. S. JHAJHARIA FCA SUBMITTED THAT GROUND NOS. 6 7 AND 8 ARE AGAINST THE DENIAL OF ASSESSEES CLAIM OF DEDUCTION U/S. 80IA(4)(III) OF THE ACT . HE RELIED ON THE JUDGMENT OF THIS KOLKATA TRIBUNAL B BENCH IN ASSESSEES OWN CASE IN ITA NOS. 665 & 666/KOL/2013 FOR THE AYS. 2008 - 09 & 2009 - 10 AND IN ITA NOS. 581 & 813/KOL/2013 FOR THE AYS. 2008 - 09 & 2009 - 10 ORDER DATED 29 - 02 - 2016 AND SUBM ITTED THAT ON THE SAME FACTS THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE. HE FURTHER SUBMITTED THAT CENTRAL BOARD OF DIRECT TAXES (CBDT) NOTIFICATION [ S.O. 3035( E ) ] DATED 8 TH SEPTEMBER 2020 PUBLISHED IN THE GAZETTE OF INDIA FURTHER JUSTIFIES THE ASS ESSEES 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 SU BMITTED 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) 4 IT A NO . 2483/KOL/2019 A.Y 2009 - 10 M/S. SOFT ZONE TECH PARK LTD 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 I N 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 ASSESSEES PAPER BOOK PAGE 52 VOL - I. WE ARE REPRODUCING RELEVANT PARA 5(2I) OF THE SCHEME WHICH READS AS UN DER: IN CASE THE COMMENCEMENT OF THE INDUSTRIAL PARK IS DELAYED BY MORE THAN ONE YEAR FROM THE DATE AS INDICATE IN PARA 4(XI) OF THE APPROVAL LETTER FRESH APPROVAL SHALL BE REQUIRED UNDER THE INDUSTRIAL PARK SCHEME 2002 FOR AVAILING BENEFITS UNDER S UB - SECTION 4(III) OF SECTION 80IA OF THE INCOME TAX ACT 1961. FURTHER THE AO IN HIS REMAND REPORT GIVEN AT PAGE 86 OF ASSESSEES PAPER BOOK VOLUME HAD MERELY CONTENDED THAT - (A) THE DATE OF LEASE AGREEMENTS PRIOR TO 31.03.2007 CANNOT BE CONSTRUED AS TO THE ACTUAL DATE OF COMMENCEMENT OF LEASE RENTAL AND FOR WHICH HE ALSO SUBMITTED THE MAGNITUDE OF ELECTRICITY FROM MARCH 2007 TO TILL MARCH 2008. (B) FURTHER HE CONTENDED THAT THE ARCHITECTS COMPLETION CERTIFICATE WAS DT. 16.01.2007 WHEN THE ASSESSEE HAD APPLIED FOR COMPLETION CERTIFICATE BEFORE THE BANGALORE DEVELOPMENT AUTHORITY VIDE LETTER DATED 29.12.2006 . (C) THE ASSESSEE HAD INCREASED THE NUMBER OF INDUSTRIAL UNITS IN THE PROJECT FROM 3 UNITS .. ORIGINAL PROPOSAL TO 15 UNITS. (D) IN VIEW OF THE DEVIATION FROM THE OR IGINAL PROPOSAL AND THE DEVIATION NOT HAVING ACCEPTED IN CBDTS OFFICE MEMORANDUM DISALLOWANCE U/S. 80IA(4)(III) WAS MADE. WE FIND FROM THE FACTS THAT DATE OF LEASE AGREEMENT WITH THE CLIENTS TO LEASE OUT SPACE SALARPURIA SOFTZONESHOWS AND PROVES THAT THE AGREEMENT HAVE BEEN ENTERED WITH THE PARK FOR A DEFINITE AREA LOCATED IN THE INDUSTRIAL PARK. THE ASSESSEE HAS ENTERED AGREEMENT WITH CLIENTS BEFORE 31.03.2007 AND THE DATE OF LEASE DEED ONLY INDICATES THE DATE OF REGISTRATION OF AGREEMENT AND IS DON E ONLY AT THE BEHEST OF CLIENTS REQUIREMENT. THE CONTENTION TAKEN BY AO IS THAT THE DATE OF LEASE DEEDS ARE DIFFERENT FROM THE AGREEMENT IS NOT CORRECT. AS PER APPROVAL LETTER DATED 25 TH JULY 2006 MINIMUM 3 NUMBERS OF UNITS ARE REQUIRED TO BE LOCATED THE INDUSTRIAL PARK. THE EXPECTED DATE OF COMMENCEMENT AS MENTIONED IN THE IPS - I 28.03.2006. A S PER THE APPROVAL LETTER TERMS & CONDITIONS MENTIONED IN THE CLAUSE NO. 5 READS AS UNDER: IF THE REQUIRED NO OF UNITS NEEDS TO BE LOCATED ARE WITHIN ONE YEAR FROM THE DATE OF EXPECTED DATE OF COMMENCEMENT NO FRESH APPROVALS ARE REQUIRED TO BE TAKEN UNDER THE NON - AUTOMATIC ROUTE. FURTHER UNDERSTANDING WITH CAREER NET TECHNOLOGIES (P) LTD IS BASED ON CERTAIN TERMS CONDITIONS AS MENTIONED IN THE LEASE AGR EEMENT AND ON FULFILLING THOSE TERMS & CONDITIONS.. RENTAL STARTED. SO THE CONTENTION 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 WE RE 5 IT A NO . 2483/KOL/2019 A.Y 2009 - 10 M/S. SOFT ZONE TECH PARK LTD 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 ELE CTRIC 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 RE ADY 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 WI THIN 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 DATE D 26.12.2006 WAS SUBMITTED ALONG WITH APPLICATION MADE TO BANGALORE DEVELOPMENT AUTHORITY FOR COMPLETION CERTIFICATE ON 29.12.2006 . SUBSEQUENTLY ANOTHER INSPECTION WAS DONE BY 10.01.2007 AND ACCORDINGLY COMPLETION CERTIFICATE WAS ISSUED ON 16.01.2007 AND THE SAME WAS SUBMITTED TO BANGALORE DEVELOPMENT AUTHORITY. THE COPY OF THE PROVISIONAL COMPLETION CERTIFICATE DATED 26.12.2006 HAS BEEN FILED BEFORE AND HIS CONTENTION OF MAKE - BELIEVE IS ONLY TO CREATE UNNECESSARY DOUBT. THE OBSERVATION BY THE AO ABOUT THE DETAILS OF IPS - II AS ON 01.07.2007 FILED ON 19.07.2008 AND IPS - II 01.07.2008 SHOULD BE READ AS 01.01.2008 FILED ON 19.07.2008. SINCE ALL OTHER FACTS REMAINS SAME EXCEPT THAT THE NUMBER OF UNITS LEASE OUT ARE DIFFERENT & HAVE BEEN MENTIONED CORRECT. THE CONTENTION OF THE AO THAT THE FRESH APPROVAL WAS REQUIRED UNDER THE NON - AUTOMATIC.. MORE THAN THE MINIMUM NUMBER OF UNITS REQUIRED TO BE ESTABLISHED IN THE INDUSTRIAL PARK IS CORRECT BECAUSE THE APPROVAL WAS FOR MINIMUM NUMBER OF UNITS AND THERE WAS NO R ESTRICTION IMPOSED FOR INCREASING THE NUMBER OF UNITS AND HENCE NO FRESH APPROVAL IS REQUIRED UNDER CURRENT SCENARIO. FURTHER ASSESSEE SENT ALL THE DETAILS OF CBDT FOR NOTIFICATION ON THE BASIS THE FIRST APPROVAL AS WELL AS AFTER RECEIPT OF THE RENEWED A PPROVAL. THE NEW NOTIFICATION AND INDUSTRIAL POLICY 2008 HAS COME SUBSEQUENTLY. ASSESSEE HAS GIVEN A REPRESENTATION TO CHAIRMAN OF EMPOWERED COMMITTEE & THE DIRECTOR OF CBDT FOR GIVING AN OPPORTUNITY ASSESSEE. THE EMPOWERED COMMITTEE HAS STILL NOT WITHDRAW N THE APPROVAL GRANTED AND HENCE VALIDITY CANNOT BE DISPUTE. AS REGARDS THE APPROVAL ISSUED BY THE DIPP MINISTRY OF COMMERCE AND INDUSTRY WE ARE OF THE VIEW THAT THE SAID APPROVAL WAS FOR NON - AUTOMATIC ROUTE AND THE APPROVAL SO GRANTED BY THE MINISTRY OF COMMERCE AND INDUSTRY HAS NOT BEEN CANCELLED TILL DATE. FURTHER SUCH CHANGE HAS BEEN DULY INTIMATE VIDE IPS - II DT. 01.01.2008 AND ON CONSIDERATION OF THE SAME THE APPROVAL DATED 16.03.2009 HAS BEEN GRANTED AND FURTHER THE SAID APPROVAL REMAINS IN FORCE T ILL DATE. FURTHER SUCH CHANGE HAS BEEN DULY INTIMATED VIDE IPS - II DT. 01.01.2008 AND ON CONSIDERATION OF THE SAME THE APPROVAL DATED 16.03.2009 HAS BEEN GRANTED AND FURTHER THE SAID APPROVAL REMAINS IN FORCE TILL DATE AND HAS NOT BEEN WITHDRAWN. 8. W E FIND THAT IN SIMILAR FACTS AND CIRCUMSTANCES HONBLE KARNATAKA HIGH COURT IN THE CASE OF 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 6 IT A NO . 2483/KOL/2019 A.Y 2009 - 10 M/S. SOFT ZONE TECH PARK LTD WHICH THE PROJECT WAS COMPLE TED TO ELIGIBLE FOR THE BENEFIT OF SECTION 80IB OF THE ACT. HONBLE HIGH COURT HELD AS UNDER: - 6 . ONE OF THE PROJECT HAS BEEN SANCTIONED SUBSEQUENT TO THE ACT. TH E P O INT O F CONTROVERSY IS REGARDING T HE DATE ON W HICH TH E - PROJECT WAS COMPLETED TO BE ELIG I BL E F O R THE BENEFIT OF THE SAID PROVISION. THE REVENUE ' CONTENDS THE COMP L E T ION CERTIFICATE ISSUED BY THE VILLAGE P A T N CHAYAT IS NOT VAL I D AND THEREFORE THE ASSESSEE IS - NOT ENTITLED T O TH E SAID BE N EFI T . ADMITTEDLY THE PLAN IS SANC T IONED BY THE BDA . THE BD A HAS NOT ISSUED ANY COMPLETION C E RTIFICATE. THE R E ASON BEING ' I N THE BDA A C T OR THE KARNATAKA MUNICIPAL CORPORAT I ON ACT THERE IS NO PROV I SION FOR ISSU E OF C OMPLETION CERTIFIC A TE . THE PROVISION IN TH E KARNATAKA MUNICIPAL CORP O RATION ACT I S F O R I S SUANC E O F OCCUPA NCY CE R TIFICATE . W HEN THE STAT U T E DOES NOT PROVID E F O R ISSU E O F A COMPL ET I O N C E RTIFI C AT E IF TH E AUTHORITI E S W ER E INSISTING O N SUCH CE RTI F ICA T E TH E A SSE S S EE H A S G ON E T O TH E V ILLA GE PA N CHAYAT WITHIN WHOS E LIMITS TH E P R OPERTY IS SITUAT ED AN D H A S O B T A IN ED THE C O MPLETION CERTIFICATE AND HAS PRODUC E D THE SAME FOR A V AILIN G TH E B E NE F IT . WHET H ER THA T CE RTIFICATE WOULD SATISFY THE REQUIREMENT OF LAW NE ED N O T B E GO N E I NTO IN TH E S E PRO C EEDINGS BECAUS E WHEN THE ST AT UTE DOES N OT PROVIDE F O R IS S U E OF S UCH A CE R TIFICA TE I F TH E R E VENUE INS I ST S ON SUCH C E RTIFICATE THE ASS E SS EE WOULD B E L E FT WI T H N O OPTIO N E X CE P T TO G ET SU C H CE RTIFICAT E WITH SOME AUTH O RI T Y W H ICH WOULD B E CA LL E D A S A L O CAL AUTHORITY. I N T H E FACT S OF THIS CAS E WE ARE OF TH E VIEW THAT TH E TRI BUNAL H A S REC ORD ED A F IND I NG THA T T HE BU I LDI N G WAS C O MPL E T E D WITHI N TH E S TI P UL A T E D P E RI OD AND T HE R EFO R E D E HORS THI S CERTIFICATE ISSUED BY THE PANCHAYAT AFTER THE BUILDING IS COMPLETED THE ASSESSEE IS ENTITLED TO THE SAID BENEFIT. IN THAT VIEW OF THE MATTER W E DO NOT SEE ANY MERIT IN THESE APPEALS. ACCORDINGLY THE APPEALS ARE DISMISSED. FURTHER EXACTLY ON THE SAME ISSUE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT ACKRUTI CITY LTD (2013) 214 TAXMAN 398 (BOM) HAS HELD THAT ONCE INDUSTRIAL PARK APPROVED BY MIN ISTRY OF COMMERCE & INDUSTRY CBDT HAS TO SUO MOTTO ISSUE NOTIFICATION DELAY ON THE PART OF THE CBDT IN ISSUING NOTIFICATION WOULD NOT WARRANT ASSESSEE BEING DENIAL BENEFIT OF DEDUCTION U/S. 80IA(4)(III) OF THE ACT . HONBLE HIGH COURT HAS DECIDED THIS ISSU E UNDER: 3.. .. .. THE CIT(A) AS WELL AS THE TRIBUNAL HAVE HELD THAT THE MINISTRY OF COMMERCE AND INDUSTRY HAD FINALLY BY LETTER DATED 31 ST DECEMBER 2004 APPROVED THE INDUSTRIAL PARK AND A COPY OF THE SAME WAS FORWARDED TO THE CBDT. IN TE RM S OF RU LE L8C(4) OF THE RULES ON CE T HE I N D U S T RIAL . PARK I S APPROVED B Y THE MIN I STRY O F COMMER CE AND INDUSTR Y. TH E CBDT HA S TO S U O MOTT O I S S UE THE N OTIFI C ATIO N . TH E TRIBUNAL. ON EXAMIN A TIO N O F ALL FACTS C ON C LUDED THAT ALL TH E REQUISITE C ON D I T IO N S FOR CL A IMI N G BENEFI T UN D E R S EC T ION 80JA(4) ( II I ) OF T HE ACT HAS BEEN COMPLIED WITH B Y T HE R E SPOND E N T ASSESSEE D UR I NG T H E AS S ESS M E NT YEA R IN QU ES TIO N . FU R T HE R T HERE I S NO R EAS ON TO H OLD THE BENEFIT UND E R S ECTION 80 J A(4 ) (I I I) OF T HE ACT IS AVAILABLE ON L Y P R OSPE C T IVELY FROM TH E DATE OF THE I S S U E OF N OTI FICATION B Y T HE CBDT IN THESE CI R C UM STA N CE S AS TH E DECISION OF T HE TRIBUNAL IS BASED ON FINDING OF FACT AND MERE DELAY ON THE PART OF THE CENTRAL BOARD OF DIRECT TAXES IN ISSUING THE NOTIFICATION WOULD NOT WARRANT THE RESPONDENT ASSESSEE B EI N G D E N I ED TH E B E NE F IT OF SECTI O N 7 IT A NO . 2483/KOL/2019 A.Y 2009 - 10 M/S. SOFT ZONE TECH PARK LTD 80 1 A ( 4)(II I). ' 1 0. SIM IL ARL Y HON' BL E G U JA R A T H IG H C OURT IN THE C ASE OF CREA T IVE IN F OC I TY LT D . VS . U N SECRE T ARY ( 2 012] 1 9 TAXMANN.COM 270 (GUJ . ) A L S O HELD THAT ONCE INDUSTRIAL PA R K WA S A PPRO VED B Y M INISTR Y OF COMM ER C E & INDU ST R Y C BD T HAS T O S U O M OTTO ISSUE NOTIFICATION AND IF T HE R E IS DELAY ON T HE PART OF THE C BD T IN ISSUI N G NOTIF IC ATION IT W OULD NOT W A RRANT ASSE SS EE BE D ENIE D B ENE FI T OF D E D UCT I ON U / S. 8 0 I A(4)(II I ) OF TH E ACT . HO N 'BLE HIGH COURT FIN A L LY H E L D UNDER: 'ONCE APPROVAL IS GIVEN BY THE COMMERCE MINIS TR Y TO TH E PETI T ION E R IN T E RMS OF SUB - RULE [2] OF RULE 18C TH E B O A R D IS DUTY BOUND TO NOTI FY THE INDU S TRIAL PARKS FOR BENEFITS UNDER SECTION 80 - IA WITHOUT ANY FURTHER INVESTIGAT ION AS TO WHETHER THE PETITIONER HAS COMPLIED WITH THE TERMS AND CONDITIONS ENVISAGED IN THE SCHEME. SINCE THE POWER OF GRANT ' OF APPR O VAL HAS BEE N CONFE R RED UPON T HE COMMERCE MINISTR Y IN THE ABSENCE OF A NY EXPRESS P R O V I SION ILL TH E RULES IT SHOULD BE PRESUMED THAT THE AUTHORITY WHICH HAS GIVEN APPROVAL HAS THE POWER REVOCATION AND EXAMINATION OF COMPLIA N CE OF THE CONDITIONS UP ON WHICH THE APPROVAL HAS BEEN ACCORDED. THEREFORE IT IS THE DUTY OF THE COMME R CE MINISTRY T O DEC ID E W H E THER AN INDUSTRIA L UNDER T AKIN G I S COMPLYIN G WIT H - TH E COND I TIONS ENVISAGED IN THE S C HEM E AND IF TH E U N D ER TAKING FAILS TO COMPLY WITH THOSE CONDITIONS IT IS THE C O MMERCE MINI ST R Y AL O NE WHIC H HA S TH E RI G HT TO W ITHDR AW THE B E N EFIT GRA N T E D UNDER SUB - RUL E [2J OF RULE L 8C O F THE R U L E S . AS SO O N AS THE APPR OV AL UNDER SUB - RULE[2] OF RULE 18C IS GIVEN IT IS OBLIGATORY ON THE PART OF THE CENTRAL BOARD OF DIRECT TAXES TO NOTIFY INDUSTRIAL PARKS IN TERMS OF SUB - RULE [4] OF RULE 18C. 1 1 . IN SIMILAR C IRCUMSTANCES HO N 'BLE BOMBAY HIG H C O URT IN THE C AS E OF S I LVER I DEVELOPERS (P ) LTD. & ORS . VS . EMPOWERED CO M MIT T EE (2012 ) 343 ITR 0439 ( BORN) HAS TH AT THE E MPOWERED COMMI T TEE WAS NOT JUSTI F IED IN REJECTING THE A PPLICAT I O N FOR NOTIFIC A TI ON APPROVED UNITS U/S. 80IA(4) (III) OF THE ACT UNDER THE INDUSTRIAL PARK SCHEME OF 2002 ONLY ON GROUND THAT DEVELOPMENT OF INDUSTRIAL PARK WAS COMPLETED BEYOND 31.03.2006. HONBLE BOMBAY HIGH COURT HELD AS UNDER: 21. WE FIND MERIT IN THE CONTENTION OF THE PETITIONERS THAT IF THE POSITION WHICH HAS BEE N ADOPTED BY THE EMPOWERED COMMITTEE WERE TO BE ACCEPTED THAT WOULD RESULT IN VIRTUALLY DMT 34 TP 744 - 11 DEFEATING THE SALUTARY PUBLIC PURPOSE WHICH UNDERLIES SECTION 80IA(4) (III). NOTICE WOULD HAVE TO BE TAKEN OF THE FACT THAT INFRASTRUCTURAL PROJECTS REQUIRE A CONSIDERA BLE AMOUNT OF INVESTMENT AND A TIME LAG IS INVOLVED IN THE COMPLETION OF THE PROJECT. THE VIEW OF THE EMPOWERED COMMITTEE IS THAT PARA 9 OF THE SCHEME WOULD APPLY TO A DELAY IN A PROJECT BEYOND ONE YEAR BUT THAT THE DELAYED DATE OF COM PLETION SHOULD NOT IN ANY EVENT FALL BEYOND 31 MARCH 2006. IF THIS WERE TO BE ACCEPTED AS THE CORRECT INTERPRETATION THAT WILL DENUDE THE BENEFIT OF SECTION 80IA TO PROJECT WHERE APPROVALS WERE GRANTED A FEW MONTHS BEFORE 31 MARCH 2006 AND THE COMPLETION SPILLS OVER BEYOND THAT DATE. THERE IS NO INDICATION EITHER IN THE STATUTE OR IN THE SCHEME THAT PARLIAMENT OR ITS DELEGATE INTENDED TO DEPRIVE THE ASSESSEE OF THE BENEFIT OF SECTION 80IA(4)(III). PARA 9 OF THE SCHEME WOULD IN FACT INDICATE AN INTENT N OT TO DEPRIVE THE BENEFIT OF SECTION 80IA(4)(III) SAVE AND EXCEPT THAT IF THE COMMENCEMENT OF THE PROJECT IS DELAYED BEYOND ONE 8 IT A NO . 2483/KOL/2019 A.Y 2009 - 10 M/S. SOFT ZONE TECH PARK LTD YEAR A FRESH APPROVAL WOULD HAVE TO BE OBTAINED TO GET THE BENEFITS UNDER THE ACT. DMT 35 WP744 - 11 THE COURT CANNOT ALSO IGNO RE THE FACT THAT THE INTENT OF THE LEGISLATURE AND ITS EXECUTIVE IS NOT T O DISCONTINUE THE BENEFITS AVAILABLE 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 3 1 MARCH 2006 WHEN THE SCHEME OF 2002 WAS TO EXPIRE. 22. DURING THE COURSE OF THE HEARING LEARNED COUNSEL APPEARING ON BEHALF OF THE REVEN UE 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 SP EAKS 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 I NDUSTRIAL PARK. IN RESPONSE TO THIS THE ATTENTION OF THE COURT WAS DRAWN BY THE LEARNED COUNSEL . FOR THE PETITIONERS TO THE DMT 36 W P 744 - 11JACT THAT THE PETITIONERS HAD IN THEIR O RIGINAL APPLICATION STATED THAT THERE WOULD BE EIGHT UNITS; THAT THE PROPOSED AREA O F 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 APPLICATION DATED 26 OCTOBER 2006 THE PETITIONERS SOUGHT TO ALTER THE NUMBER OF UNITS FROM EIGHT TO THREE. - HOWEVER THERE WAS NO CHANGE PROPOSED EITHER IN THE AREA AS DECLARED E A RLIER OR IN THE ALLOCABLE AREA. LEARNED COUNSEL SU BMITTED THAT THE PETITIONERS FULFILL E D IN SUBSTANCE THE OBJECT AND SUBSTANCE UNDERLYING THE SCHEME AND THE DEPARTMENT WAS NOTIFIED ON 25 JULY 2007 THAT THREE UNITS LOCATED IN THE PARK AS ON 14 MARCH 2007 WERE OCCUPIED BY TATA CONSULTANCY SERVICES LTD. PO LARIS SOFTWARE LAB. LTD. AND BHARTI AIRTEL LTD - . SUBSEQUENTLY THE PETITIONERS NOTIFIED THE DEPARTMENT THAT AN ADDITIONAL UNIT HAD BEEN OCCUPIED BY CITIGROUP GLOBAL SERVICES LTD. 23. THE APPLICATION FILED BY THE PETITIONERS FOR A MODIFICATION OF THE NUMBER OF APPROVED UNITS WAS NOT ALLOWED DMT 37 WP 744 - 11 PURELY ON THE GROUND THAT THE DEVELOPMENT OF THE INDUSTRIAL PARK WAS COMPLETED BEYOND 31 MARCH 2006. FOR THE REASONS ALREADY INDICATED BY US IN THE EARLIER PART OF THIS JUDGMENT WE HAVE COME TO TH E CONCLUSION THAT THE RESPONDENTS WERE NOT JUSTIFIED IN REJECTING THE APPLICATION PURELY ON THE GROUND THAT THE DEVELOPMENT OF THE PARK WAS NOT COMPLETE BY 31 MARCH 206. IN HOLDING THUS THE EMPOWERED COMMITTEE DISABLED ITSELF FROM EXERCISING THE POWER AN D JURISDICTION WHICH IT HAD UNDER PARA 9(1) OF THE SCHEME. 12. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES THE ISSUE IS COVERED BY THE DECISION OF HONBLE BOMBAY HIGH COURT AND THE HONBLE KARNATAKA HIGH COURT CITED SUPRA. HENCE THIS ISSUE OF ASSE SSEES APPEAL IS ALLOWED. 7. WE FIND THAT THE ASSESSEE SALARPURIA SOFTZONE VIS - - VIS M/S. SOFT ZONE TECH PARK LTD WAS APPROVED BY THE MINISTRY OF FINANCE DEPARTMENT OF REVENUE CENTRAL BOARD OF 9 IT A NO . 2483/KOL/2019 A.Y 2009 - 10 M/S. SOFT ZONE TECH PARK LTD DIRECT TAXES NOTIFICATION NO. S.O 305(E) NEW DELHI THE 8 TH SEPTEMBER 2020 . THE APPROVAL IS FOR THE PERIOD OF 1 ST DAY OF APRIL 1997 TO 31 ST DAY OF MARCH 2006. THE CENTRAL GOVT. HAS APPROVED THE SAID INDUSTRIAL PARK VIDE MINISTRY OF COMMERCE AND INDUSTRYS LETTER NO. 15/23/2006 - IPC/D DT. 25 TH JULY 2006 . THIS NOTIFICATION READS AS UNDER: S . O. 3035(E) . - WHEREAS THE CEN TR AL GO VERN M E NT IN EXERC IS E OF T H E POWER S CO NFE R RED BY C LAUSE (III) OF S U B - SECTION (4) OF SECTION 80IA O F THE I NCOME - TAX ACT 1 961 (43 OF 1961) (HEREINAFTER REFERRED TO AS THE SAID ACT) HAS F AMED AND NOTIFIED A SCHEME FOR INDUSTRIAL PA R K VIDE NOTIFICA T ION O F THE GO V ER N MEN T OF INDIA IN THE MINISTRY OF COMMERCE AND INDUSTRY ( DEP A R T MENT OF I N DU STRI A L PO L I C Y AND P ROM O T IO N) NUMBER S.O. 354( E ) DATED THE 1 ST DAY OF APRIL 2002 FOR THE PER I O D BEGINNING ON TH E L ' D AY O F APRIL 1 997 AND ENDING 01 1 TH E 31 ST DAY OF MARCH 200 6 ; AND WHEREAS M / S SOFTZONE TECH PARK LTD. S ITUATED AT SURVEY N O .80/1 81 / 1 81 /2 BELLANDUR VI LLAGE VAR T HUR H OBLI B ANGALORE - 560037 IS DEVELOP ING AN INDUSTRIAL PARK AT SUR V EY NO _ 80/1 81 / 1 8 1 1 2 BELBODRU - V ILLAGE VARTHUR HOBLI . BANGALO R E - 560037 ; 8. IN VIEW OF ABOVE DISCUSSION WE RESPECTFULLY FOLLOW THE PROPOSITION OF LAW BY THE CO - ORDINATE BENCH OF THIS TRIBUNAL IN ASSESSEES OWN CASE AND IN VIEW OF T HE 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 ASSESSE ES APPEAL ARE ALLOWED. 9. ON G ROUND 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 ALLOWED IN PART . ORDER IS PRONOUNCED IN THE OPEN COURT ON 05 MARCH 2021 SD/ - SD/ - (ABY. T. VARKEY) ( J. SUDHAKAR REDDY) J UDICIAL MEMBER ACCOUNTANT MEMBER DATED : 05 MARCH 2021 10 IT A NO . 2483/KOL/2019 A.Y 2009 - 10 M/S. SOFT ZONE TECH PARK LTD **PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. SOFT ZONE TECH PARK LTD S/O SALARPURIA JAJODIA & COMPANY 3 RD FLOOR 7 CHITTARNAJNA AVENUE KOLKATA - 700 072. 2 RESPONDENT INCOME TAX OFFICER WARD 1(4) 3 GOVT PLACE (W) 1 ST FL. ROOM NO. 16 KOLKATA - 700 068. 3. 4. 5. CIT(A) - KOLKATA (SENT THROUGH E - MAIL) CIT - KOLKATA. DR ITAT KOLKATA. (SENT THROUGH E - MAIL) BY ORDER / TRUE COPY ASSISTANT REGISTRAR