TaxTMI 
TaxTMI 
2025 (10) TMI 805
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.... - 2012-13 7815/Del/2018 Revenue - Do - 2013-14 7816/Del/2018 Revenue - Do - 2014-15 7817/Del/2018 Revenue - Do - 2015-16 3662/Del/2019 Revenue - Do - 2010-11 4277/Del/2019 Revenue Penalty u/s 271(1)(c) 2. First, we take the assessee's appeal in ITA No.2736/Del/2018 for A.Y. 2010-11. 3. Brief facts of the case are that the assessee has filed its return of income declaring total income of Rs. 23,75,250/- on 14.10.2010 after claiming deduction u/s 80IA of the Act of Rs. 7.15 crores which was processed u/s 143(1). Thereafter, case of the assessee was selected for scrutiny by issue of notice u/s 143(2) of the Act. In response to notices issued from time to time, assessee has filed various replies. The assessee has claimed deduction u/s 80IA of the Act of Rs. 7.15 crores on development, maintain and operate the Industrial Park at Gurgaon in terms of the approval granted by the Ministry of Commerce and Industry, Government of India and Industrial Park Scheme, 2002 and as per clause (iii) of sub-section 4 of 80IA, assessee has claimed the deduction u/s 80IA of the Act. The assessee filed necessary report of the auditor in f....
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....ly unjustified, improper and uncalled for. 1.4 That the finding recorded by learned Commissioner of Income Tax (Appeals) that the appellant company has failed in obtaining approval from the Central Government regarding deviation or variation to the project plan for claiming of deduction under section 80 IA of the Act, is factually incorrect and is contrary to material available on record, as the approval granted by Central Government dated 05.12.2006 considered all the documents, evidences and clarifications as filed and sought by the appellant company and the appellant company had never violated any term and stipulation as accorded by the appropriate authorities. 1.5 That the learned Commissioner of Income Tax (Appeals) has further grossly erred in relying on the judgments wholly inapplicable to the facts of the instant case and also in arriving at findings contrary to material available on record. 1.6 That the learned Commissioner of Income Tax (Appeals) has erred in law and on facts in sustaining the aforesaid disallowance, without giving any fair and proper opportunity of being heard to the appellant company, thereby, violating the principles of natur....
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....(3) of the Act. Thereafter in the year under appeal the same was disallowed for the sole reason that there were difference in the area notified in the approval and the area constructed and finally the Government of India has withdrawn the notification granting the approval for construction of industrial park to the assessee. Once the deduction u/s 80IA is allowed in the first year it has to be allowed in the subsequent year also by following the rule of consistency as has been held by Hon'ble Supreme Court in the case of Radha Swami Satsang Vs. CIT (1992) 193 ITR 321. 10. It is further seen that based on the withdrawal of the approval by the Central government, the AO has reopened the assessment proceedings for AY 2008-09 and 2009-10 which were challenged before the Hon'ble Jurisdictional High Court in WP(C)No. 3162/2014 vide who its order dated 12.07.2018 has quashed such withdrawal and the relevant observations of the Hon'ble Court as contained in para 11 to 13 are as under: 11. "As far as the other question (i.e. not completing the project before the approved date) is concerned the facts are that the approval was granted (to the petitioner) on 24.07.2006, by the Cent....
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....he commencement of the project is delayed beyond one year a fresh approval would have to be obtained to get the benefits under the Act." 12. It is clear therefore, that in the absence of any stipulation as to the minimum requirement of industrial park under the scheme as well as under the Income Tax Act, the unreasoned order of DIPP (ignoring the record and overlooking the material explanation of the petitioner with respect to the area constructed, the super area in fact leased and that there was no suppression of facts anytime) withdrawing the earlier notification cannot survive As regards the other ground, i.e. non-construction beyond the scheme, the court notices that the approval was in fact issued after the date mentioned by the DIPP Following the reasoning in Silverland (supra) of the Bombay High Court, that reason cannot survive 13. In view of the above reasons, the impugned order and notification, withdrawing the earlier notification (of 2007) is hereby quashed. The second respondent shall consider all the materials on the record and after granting proper opportunity of hearing to the petitioner, and in the light of the above discussion, issue a reasoned o....
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....ntral Govt. (Ministry of Commerce and Industry) vide order dated 24.01.2014 had withdrawn the approval granted to the undertaking (the appellant) under the industrial park scheme, 2002, vide notification no. S.O. 462 dated 09.02.2007. 5.3. The issue has now been decided by Hon'ble High Court, in their order dated 12.07.2018, while deciding the writ petition filed by the appellant before Hon'ble High Court, as discussed above. 5.4. In the written submissions, appellant's AR has highlighted the relevant part of Hon'ble High Court's order dated 12.07.2018, in which Hon'ble High Court has rejected the withdrawal of notification by the Central Govt. Hon'ble High Court has ruled as follows in para 11 to 13 of the order. "11. As far as the other question (ie, not completing the project before the approved date) is concerned the facts are that the approval was granted (to the petitioner) on 24.07.2006, by the Central Government. The letter stated that the expected date of construction was to be 15.03.2006. In the present case, the Indications, in the form of correspondence with the town planning department and other letters discloses t....
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....ding to adverse inferences brought on record were being consistently observed by earlier assessing officers for earlier years as well as by CBDT and accordingly it was held that the appellant has complied with all conditions under section 80IA(4) of the Act and was eligible for deduction by the earlier assessing authority and by the appropriate authority while notifying as the assessee in official gazette. (ii) There is no change in the facts and disclosures which are being consistently made since earlier years. (iii) Since the appropriate authority at the time of notifying appellant was satisfied that the prerequisite have been fulfilled, the jurisdiction to withdraw deduction was vested in such authority as per section 293C of Income Tax Act and as specifically provided vide clauses to notification. Thus the act of Ld. A.O. is prima facie without jurisdiction and apparently contrary to provisions of the Act. AR also contended that the disallowances were made contrary to principle set out by courts that once assessee is held entitled to deduction in first initial year and conditions precedent thereto has been examined, the deduction cannot be denied in s....