TaxTMI 
TaxTMI 
2016 (11) TMI 967
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....for short). This was done under the then prevailing Industrial Park Scheme, 2002. The Ministry of Commerce and Industry informed the petitioner on January 5, 2009 that the petitioner should apply under the new Industrial Park Scheme, 2008. The petitioner accordingly applied for approval under application dated January 27, 2009. According to the petitioner, the petitioner completed the development of the industrial park on September 5, 2010 which was well before the extended last date of March 31, 2011 envisaged in the Industrial Park Scheme, 2008. According to the petitioner as many as 182 units were allocated in the industrial park. The entire industrial development and plotting had been completed. The petitioner was therefore, entitled to deduction under section 80-IA(4) of the Act. 3. The case of the petitioner is that the State Government had also framed a scheme for subsidy for setting up industrial park in the State under resolution dated June 10, 2004 of the Industries and Mines Department. The petitioner had also availed such subsidy benefits upon completion of the development of the industrial park which was examined by the agency appointed by the GIDC. On the basis of ....
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....ot immediately after the project was completed as per the claimed date. Further, on the basis of this, request the work completion certificate (being discussed here) is dated May 8, 2013. In the absence of any specified date of completion in the letter, the certificate can be treated to be valid as on May 8, 2013. Hence, even if this document is relied on for ascertaining the date of completion, the same can be inferred to be between March 4, 2012 (date of request by the applicant) and May 8, 2013 (date of issue of certificate). 2. Occupancy certificate dated June 17, 2010 given by AUDA to one of the units of the said project. It was issued after verification of the site and after satisfying that the required infrastructure under General Development Control Regulation (GDCR) has been completed This certificate issued by the AUDA in Gujarati, is in respect of occupation of the first unit only and does not cover the occupation of 182 units that form part of the entire project. It also gives area related information pertaining to that first unit and not the entire project. The certificate is dated June 17, 2010 and as mentioned in the text, it is based ....
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....y AUDA does not prove completion of work in respect of entire project by June 17, 2010. Further M/s. MARS, in this certificate has confined itself to development pertaining to infrastructure only, as evident from para. (B) and not to construction of units, which is an important constituent of development work. In para. (C), it gives the status of park as follows (c) Status of Industrial Park is as follows (1) No of units sold 180 (2) Out of which agreement executed 99 (3) Out of which construction is in progress 19 (4) Out of which commencement/production/manufacturing started 04 As can be seen, number of agreements in respect of industrial units executed as on September 5, 2010 is 99 only. This does not necessarily mean that units were actually ready for possession since the agreements can be made for unconstructed or under construction units (The copies of agreements are not on record although the applicant has made such a claim). This is supported by the certificate of the AUDA dated June 17, 2010 (at SL No.1 of this tab....
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....he applicant had made a request for inspection when all the 182 units were completed. Instead, it has given occupancy certificate dated June 17, 2010, when only one unit was ready. It is rather clearly pointed out in the said letter that 'the AUDA could not certify the date of final completion earlier'. (iii) The AUDA suggests to make reliance to the four documents already relied upon by the applicant listed in the above table. As discussed above, these documents indicate that project was completed after March 31, 2011 only and not before as claimed by the applicant. (iv) The AUDA also attached a copy of satellite image of project site available on google earth software. It does not clearly provide the number of units situated therein and it is not known whether these are plots or units. Even if these are presumed to be constructed areas, it is not ascertainable whether these are warehouses, first aid centre, canteen, sewage plant etc. constituting the common facility or industrial units. Hence, it has no evidentiary value. (v) The AUDA's letter also suggests that 'the decision regarding the actual date or final completion of said project ....
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....nit in the park will not be eligible for incentive under the scheme." 8. The scheme envisaged State level approval committee consisting of Industries Commissioner as chairman and various other Government officials as its members and provided that : "The disbursement of subsidy will be after physical verification of the investment made in industrial park under the project proposal. The application under the scheme will be received by the Indus tries Commissionerate and place before the committee for decision." 9. In the background of this scheme, the petitioner had claimed the subsidy. The state level approval committee in its meeting dated February 28, 2011 had taken various decisions as can be seen from a letter dated written by the Joint Industries Commissioner (Infrastructure) to the GIDC and other Governmental authorities. In its meeting dated February 28, 2011, the Committee noted that infrastructural development in question was granted approval on September 4, 2006 for the project cost of Rs. 531.92 lakhs. The committee perused the report of the joint inspection team in which it was stated that the developer has created infrastructure as per the guidel....
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.... ware house, administrative office, training centre, R and D section, canteen display center, etc. As noted, despite such evidence produced by the petitioner, the Central Board of Direct Taxes was unmoved and formed an opinion that there was inconclusive evidence of the petitioner having completed the project before the final date of March 31, 2011. 13. For discarding various documents produced by the petitioner before the Central Board of Direct Taxes, detailed reasons have been given. Regarding work completion certificate dated May 8, 2013 issued by the AUDA, it was observed that there is no specified date of completion in such certificate. Regarding occupancy certificate dated June 17, 2010 issued by the AUDA, it was observed that such certificate mentions only one unit out of 102 units which were part of the project. This would mean that as on June 17, 2010 only one unit had occupied the premises. Regarding the completion certificate issued on September 5, 2010 by MARS Planning and Engineering Services Pvt. Ltd., it was stated that the agency was appointed by the petitioner and is not a local authority. This certificate also matches with the AUDA's certificate dated June....
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....mean, 'any separate and distinct entity for the purpose of one or more State or Central tax laws'. The question arises-Did the petitioner fulfils this requirement ? For this purpose, we may note that the entire infrastructural facilities were created by the petitioner before the last date envisaged under the Scheme by providing various facilities such as roads, drainage, electricity, lights, water, etc. The entire plot on which the industrial park was located was further subdivided into several plots. The petitioner had in fact sold all 32 plots to different units before March 31, 2006. These assertions of the petitioner are not seriously disputed by the respondents. Even the impugned show-cause notice is not based on nonfulfillment of above requirements. We, therefore, proceed on the premise that considerably had taken these steps before March 31, 2006, in furtherance of implementation of the Scheme. To out mind, under the Scheme, the petitioner had fulfilled all the requirements for availing of the tax benefits. The petitioner was required to develop the infrastructural facilities. In short, the petitioner was required to setup an industrial park with all infrast....
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.... of the petitioner, to be able to claim tax deductions, was to setup an industrial park by providing necessary infrastructural facilities. We have seen that the development of such a park would require providing of all infrastructural facilities ; sub-plotting the entire plot and also ensuring that the number of units indicated in the application are sold to the intending industries. In short, the duty and responsibility of the petitioner was to ensure that the industrial activity is facilitated on the industrial park so developed by it. It was thereafter not responsible to ensure that industries do in fact set up their units and commence production activities on such units-that too before the last date envisaged in the Scheme. To our mind, such responsibility fastened on the petitioner is not borne out from the Scheme. The duty and responsibility of the petitioner was to provide infrastructural facilities which would be a catalyst for industrial growth by enabling the intending industries to set up their industry in such a park. Such manufacturing units or the intending industries were in no way under the control of the petitioner. There can be variety of reasons why such industri....
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....ARS Planning and Engineering Services Pvt. Ltd., and GIDC that the specially constituted committee in its meeting dated February 28, 2011 decided to grant the subsidy under the said scheme at the rate of 20 per cent. of the eligible investment in such park. A final approval in this respect was issued on March 14, 2011 and subsequently the Industries Commissioner under letter dated April 8, 2013 certified that as per the joint inspection team report, the park has completed industrial park as per the guidelines issued by the Government Resolution dated June 10, 2004. 16. Ignoring such evidence, the Central Board of Direct Taxes proceeded on the basis that the AUDA which was a local authority had not given any clear certificate that the industrial park was completed with constructed units by March 31, 2011. This insistence from the Central Board of Direct Taxes was impermissible for two reasons. Firstly, the scheme pertained to certificate from a local authority and would not confine its purview to certification by the AUDA alone and secondly, that the insistence on demonstrating completion of industrial units by the leasing industries was not part of the requirement of the scheme ....