Salarpuria Properties Pvt. Ltd. V. Union of India and Central Board of Direct Taxes

WP/6165/2022

AI Insights

The case revolves around M/s. Salarpuria Properties Pvt. Ltd., which sought to set up an industrial park named 'Salarpuria Touch Stone' and applied for approval under the Industrial Park Scheme, 2002 (IPS 2002). The application was initially acknowledged but later rejected by the 1st respondent on grounds that were contested in this writ petition. The petitioner argued that the rejection was unjustified and sought judicial intervention to quash the rejection and direct the approval of the industrial park under the stipulated scheme. The court examined the procedural history, the applicable laws, and the arguments presented by both parties, ultimately finding in favor of the petitioner.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 803177 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 17-09-2024
• Assessment Year: misc
• Other Referred Cases: Mohinder Singh Gill v. The Chief Election Commissioner, Hindustan Lever Ltd. v. ACIT, CIT and another v. Dr. N. Thippa Setty, CIT v. Virmani Industries (P.) Ltd., CST v. Amara Raja Batteries Ltd., Godrej and Boyce Manufacturing Co. Ltd. v. State of Maharashtra, CTO v. Bombay Machinery Store, ACIT v. Gebilal Kanhaialal, CIT v. Primal Projects (P.) Ltd., PCIT v. Punit Chettiar alias Punit Balan, Steel Authority of India v. Collector of Customs, Chittharanjan A. Dasannacharya vs. CIT, Lavish Apartment (P) Ltd. vs. ACIT, Milestone Real Estate Fund vs. ACIT, CIT v. N. P. Mathew, CWT vs Giridhar G. Yadalam, Giridhar G. Yadalarn v. CWT, Harrhajan Singh v. State of Punjab, Silver Land Developers Pvt Ltd vs Empowered Committee, Finest Promoters (P.) Ltd. v. UoI, Rule 18C as inserted with effect from 24.12.1998, CIT v Ajantha Electricals, State of Bihar vs Suprabhat Steel Ltd, State of Jharkand vs. Bramaputra Metallics Ltd., Manuelsons Hotels Pvt Ltd. vs. State of Kerela, Industrial Park Scheme, 1999, CCE v. Hari Chand Shri Gopal and Others, Mavilayi Service Co-Operative Bank Ltd. v. CIT, Government of Kerala v. Mother Superior Adoration Convent, Bajaj Tempo Ltd. v. CIT, Architect's completion certificate dated 02.02.2007, CIT v. N.C. Budharaja and Co., P.R. Prabhakar v. CIT, Bajaj Tempo Ltd. v. CIT, CIT v. Straw Board Mfg. Co. Ltd., CST v. Industrial Coal Enterprises, State of Jharkhand v. Tata Cummins Ltd., Pondicherry State Coop. Consumer Federation Ltd. v. Union Territory of Pondicherry, Vadilal Chemicals Ltd. v. State of A.P., Commr. of Customs (Preventive) v. M. Ambalal & Co., ACCT v. Amara Raja Batteries Ltd, Gurucharan Singh v. Kamla Singh, State of UP v. J.J.Johnson, A.S.Mani v. Union of India and Others, CIT v. J. Palemar Krishna
• Laws Referred To: Constitution of India, Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: ARAVIND KAMATH; E I SANMATHI
• Assessee Lawyers: K K CHAITANYA
• Keywords: Certiorari; Certiorari; Industrial Park Scheme 2002; Mandamus; Non-automatic route; IPS-1
• Section: 226; 227; 80-IA(4)(iii)

Judgement Text

" - 1 - NC: 2024:KHC:38067 WP No. 6165 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF SEPTEMBER, 2024 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 6165 OF 2022 (T-IT) BETWEEN: M/S. SALARPURIA PROPERTIES PVT. LTD. NO.3, SALAPURAI WINDSOR 4TH FLOOR, ULSOOR ROAD BANGALORE - 560 042 (REPRESENTED BY ITS VICE PRESIDENT MR. P. K. MISHRA, AGED ABOUT 58 YEARS, S/O LATE NARAYAN MISHRA) …PETITIONER (BY SRI. K.K. CHAITANYA SR. COUNSEL FOR SRI. S. SHARATH, ADVOCATE) AND: 1. UNION OF INDIA REPRESENTED BY SECRETARY, DEPT OF INDUSTRIAL POLICY AND PROMOTION, MINISTRY OF COMMERCE AND INDUSTRY, GOVERNMENT OF INDIA, UDYOG BHAVAN, NEW DELHI – 110107. 2. CENTRAL BOARD OF DIRECT TAXES MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NORTH BLOCK, NEW DELHI – 110 002. …RESPONDENTS (BY SRI. ARAVIND KAMATH, ASG FOR SRI. S.K. ACHARYA ADVOCATE FOR R1; SRI. E.I. SANMATHI, ADVOCATE FOR R2) R Digitally signed by LEELAVATHI S R Location: High Court of Karnataka - 2 - NC: 2024:KHC:38067 WP No. 6165 of 2022 THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH AS FOR AS THE PETITIONER IS CONCERNED BY AN APPROPRIATE WRIT OR ORDER IN THE NATURE OF CERTIORARI OR OTHERWISE THE IMPUGNED ORDER VIDE OFFICE NOTICE DTD. 14.02.2017 VIDE NO. 12/01/2020-ID-II ISSUED BY THE R-1 VIDE ENCLOSED IN ANNX- A. THIS PETITION, COMING ON FOR DICTATING ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR ORAL ORDER In this petition, petitioner has sought for the following reliefs:- “(A) Quash as far the petitioner is concerned by an appropriate writ or order in the nature of Certiorari or otherwise the impugned order vide Office Notice dated: 14.02.2017 vide No. 12/01/2020-ID-II issued by the First Respondent vide enclosed in Annexure-A; (B) Issue a writ of mandamus directing the First Respondent to sanction approval as per the directions of this Honourable High Court in Writ Petition 3574 of 2010 dated: 16.03.2016 enclosed in Annexure-B for the proposed Industrial Park “ SALAPURPURIA TOUCHSTONE” of the Petitioner under Industrial Park Scheme, 2002, for the purpose of Section 80-IA(4) (iii) of the Income tax Act, 1961; (c) Issue a writ of mandamus directing the Second Respondent to notify the proposed Industrial Park, “ SALAPURIA TOUCHSTONE” of the petitioner under Rule 18 C of Income- tax Rules, 1962 under Industrial Park Scheme, - 3 - NC: 2024:KHC:38067 WP No. 6165 of 2022 2002, for the purpose of Section 80-UA(4) (iii) of the Income – tax Act, 1961; (D) To direct by an appropriate writ of mandamus or order in the nature of Certiorari or otherwise the Second Respondent not to take any action based on the impugned order dated: 14.02.2017 enclosed in Annexure-A. And (E) Grant such other reliefs as this Honorable High Court may think fit including the costs of this writ petition.” 2. Briefly stated the facts giving rise to the present petition as contended by the petitioner is as under:- The petitioner is a Private Limited Company which proposed to set up an industrial park called “Salarpuria Touch Stone” at outer ring road, Bangalore, pursuant to a Joint Development Agreement (JDA) dated 09.02.2024 entered into between the petitioner and M/s.Salarpuria Properties and others. On 01.04.2002, the Central Government issued a Notification framing Industrial Park Scheme, 2002 (for short ‘IPS 2002’) for the purpose of Section 80-IA (4) (iii) of the Income Tax, 1961 (for short ‘the I.T.Act’). It is contended that the BESCOM and the Karnataka State Fire Services Department issued No Objection Certificates dated 09.09.2005 and 22.11.2005 in favour of the petitioner for the purpose of developing the - 4 - NC: 2024:KHC:38067 WP No. 6165 of 2022 aforesaid industrial park. So also, the BDA issued a Commencement certificate dated 29.12.2005 and approved the construction plan of the industrial park on 30.06.2006. 2.1 Petitioner contends that he filed an application on 15.12.2006 to the 1st respondent in Form IPS-1 for approval of setting up the aforesaid industrial park under IPS 2002 under non- automatic route. It is contended that the said scheme provided for both automatic route and non-automatic route, in that, the petitioner’s industrial park had only 3 units, in respect of which, automatic route was not available to the petitioner, who applied under the non-automatic route. In pursuance of the said application, the 1st respondent issued an acknowledgement dated 21.12.2006 and thereafter, addressed a communication dated 04.01.2007 to the Director of Industries and Commerce, State of Karnataka, to verify the application and details filed by the petitioner and furnish a report for the purpose of consideration of the application submitted by the petitioner for benefit under IPS 2002. It is contended that in pursuance of the same, the petitioner furnished all requisite details on 11.02.2007, pursuant to which, the Joint Director, Department of Industries and Commerce, addressed - 5 - NC: 2024:KHC:38067 WP No. 6165 of 2022 a communication dated 01.03.2007 recommending consideration of the petitioner’s application. 2.2 The petitioner contends that he addressed one more communication dated 04.09.2007 requesting the 1st respondent to consider his application, in response to which, the 1st respondent issued a letter dated 10.10.2007 calling upon the petitioner to furnish some details and in this regard, petitioner submitted letters dated 25.10.2007 and 31.10.2007 by providing details as sought for by the 1st respondent, who did not take any further steps in this regard. 2.3 On 08.01.2008, the Central Government issued a Notification framing Industrial Park Scheme, 2008 (for short ‘IPS 2008’) for the purpose of Section 80-IA(4)(iii) of the I.T.Act. Thereafter, the 1st respondent issued an Endorsement dated 03.02.2009 informing the petitioner that its application in Form IPS- 1 was not covered under IPS 2002 and that the petitioner may file an appropriate application under IPS 2008. The petitioner submitted one more letter dated 16.11.2009 requesting the 1st respondent to reconsider his application in Form IPS-1 under IPS 2002, in response to which, the 1st respondent issued a reply reiterating its earlier stance and refusing to accede to the request - 6 - NC: 2024:KHC:38067 WP No. 6165 of 2022 of the petitioner. Under these circumstances, petitioner preferred W.P.No.3574/2010 before this Court challenging the aforesaid Endorsement dated 03.02.2009 issued by the 1st respondent as stated supra. 2.4 The respondents 1 and 2 having contested the said petition, this Court disposed of the said petition vide final order dated 16.03.2016 directing the 1st respondent to reconsider the application filed by the petitioner in the light of the directions and observations made in the said order. It is contended that in pursuance of the said order dated 16.03.2016 passed by this Court, the petitioner submitted one more representation dated 04.04.2016 and three reminders dated 17.10.2016, 08.11.2016 and 19.12.2016, pursuant to which, the 1st respondent passed the impugned order dated 14.02.2017 rejecting the application of the petitioner under IPS 2002. It is further contended that the petitioner instituted a civil contempt proceedings in CCC No.504/2017 before this Court, which was disposed of vide final order dated 28.10.2021 dropping the contempt proceedings and reserving liberty in favour of the petitioner to challenge the rejection order dated 14.02.2017 and as such, the petitioner has preferred the present petition seeking the aforesaid reliefs. - 7 - NC: 2024:KHC:38067 WP No. 6165 of 2022 3. The present petition seeking quashing the impugned order dated 14.02.2017 and to sanction approval in favour of the petitioner by accepting the application under IPS 2002 and for consequential directions in this regard. 4. The respondent No.1 filed its statement of objections disputing and denying the various contentions and claims put forth by the petitioner. It is contended that IPS 2002 was applicable only to those units which developed and operated or maintained and operated an industrial park during the period from 01.04.1997 to 31.03.2006 and that since the petitioner applied under the scheme only on 15.12.2006 i.e., after expiry of IPS 2002 and the industrial park was to commence from 29.02.2007 i.e., 11 months after expiry of IPS 2002, the petitioner was not entitled to the benefit of the said scheme in IPS 2002. 4.1 It is contended by the 1st respondent that the petitioner had not approached the Court with clean hands and that the petition was not maintainable and was liable to be dismissed. It is further contended that IPS 2008 was notified on 08.01.2008 which was applicable to all undertakings which develop, develop and operate or maintain and operate an industrial park during the - 8 - NC: 2024:KHC:38067 WP No. 6165 of 2022 period from 01.04.2006 to 31.03.2009 and as such, the application of the petitioner was returned informing it that an application can be made by the petitioner under IPS 2008 and since there was no cut off date laid down in IPS 2002, the earlier application of the petitioner was kept pending till the new scheme in IPS 2008, pursuant to which, all applications filed under IPS 2002 after 31.03.2006 including the application of the petitioner was returned since the DPIIT did not have authority or power to process such applications. 4.2 The 1st respondent contended that the aforesaid decision was taken by the DPIIT in view of an official memorandum dated 02.06.2008 in this regard. The 1st respondent admitted the earlier round of litigations in W.P.No.3574/2010 and CCC 504/2017 as well as the orders passed by this Court. It is contended that however that since IPS 2002 expired on 31.03.2006, the petitioner was not entitled to file an application subsequent thereto and as such, the petitioner’s application dated 15.12.2006 was not maintainable under IPS 2002 and the impugned order passed by the 1st respondent rejecting the application does not warrant interference in the present petition. It was therefore contended that - 9 - NC: 2024:KHC:38067 WP No. 6165 of 2022 there was no merit in the petition and that the same was liable to be dismissed. 5. Heard Sri.K.K.Chaitanya , learned Senior counsel for the petitioner and Sri.Aravind Kamath, learned ASG for the 1st respondent and perused the material on record. 6. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned Senior counsel for the petitioner made the following submissions:- (i) In the earlier round of litigation in W.P.No.3574/2010 challenging an earlier Endorsement dated 03.02.2009 allowed the said petition vide order dated 16.03.2016 by recording various findings in favour of the petitioner and by holding that the petitioner was entitled to benefit of IPS 2002 and was not covered under IPS 2008. It was submitted that the impugned order is completely contradictory and disregarded the said order of this Court and therefore, the impugned order deserves to be quashed on this ground alone. (ii) The respondents challenged the aforesaid order dated 16.03.2016 passed in W.P.No.3574/2010 by filing a review petition in R.P.No.63/2024 which was dismissed by this Court vide final - 10 - NC: 2024:KHC:38067 WP No. 6165 of 2022 order dated 05.03.2024 and consequently, the final order dated 16.02.2016 passed in W.P.No.3574/2010 has become conclusive and binding upon the 1st respondent who is not entitled to take up a contrary contention in the present petition. (iii) The 1st respondent did not contend in the earlier round of litigation or in the correspondence prior to W.P.No.3574/2010 that IPS 2002 had expired on 31.03.2006 and that the petitioner’s application dated 15.12.2006 was liable to be rejected, since it was filed after expiry of IPS 2002 on 31.03.2006. It was submitted that the said contention of the 1st respondent in the present petition is contrary to its earlier stance in W.P.No.3574/2010 and as such, the same is liable to be rejected. (iv) The scheme in IPS 2002, does not stipulate that an application filed after 31.03.2006 cannot be accepted and in the absence of any cut off date in IPS 2002, the impugned order rejecting the petitioner’s application was liable to be quashed. (v) Learned Senior counsel placed reliance upon the provisions contained in Section 80-IA (4)(iii) of the I.T.Act which provides a window from 01.04.1997 to 31.03.2011 for the petitioner to file an application and on this ground also, the 1st respondent was not justified in imposing an extra legal condition of requirement - 11 - NC: 2024:KHC:38067 WP No. 6165 of 2022 of filing of application before 31.03.2006 when no such condition was present in 80-IA(4)(iii) of the I.T.Act or Rule 18C of the Income Tax Rules or IPS 2002 and the impugned order is liable to be quashed. (vi) The 1st respondent having granted approval in respect of other industrial parks, whose applications under IPS 2002 were made after 31.03.2006 are estopped in denying the benefit under IPS 2002 in favour of the petitioner on the ground that the application was filed after 31.03.2006. (vii) Learned Senior counsel invited my attention to para-3 of IPS 2002 as well as Section 80-IA(4)(iii) in order to point out that the expression “develop” contained therein indicates the course of carrying out some activity and not necessarily a completed state of affairs and as such, since the petitioner had commenced the activity, mere non-completion of development as on 31.03.2006 cannot be made the basis to contend that IPS 2002 was not applicable to the petitioner. In this context, it is submitted that merely because the expected / actual date of commencement of operations of the industrial park by the petitioner was after 31.03.2006, the said circumstance would not come in the way of the petitioner seeking benefit under IPS 2002. - 12 - NC: 2024:KHC:38067 WP No. 6165 of 2022 (viii) The petitioner was covered under IPS 2002 and not under IPS 2008 and the delay on the part of the 1st respondent in disposing of Form IPS-1 filed by the petitioner only on 03.02.2009 after IPS 2008 came into force on 08.01.2008 is yet another circumstance that would vitiate the impugned order. (ix) The various other contentions urged by the 1st respondent are devoid of merit and the same are liable to be rejected. (x) So also, no reliance can be placed upon the various judgments by the 1st respondent in support of their defence. (xi) In support of his contentions, learned Senior counsel placed reliance upon the following judgments:- “ 1. Mohinder Singh Gill v. The Chief Election Commissioner - 1978 SCR (3) 272; 2. Hindustan Lever Ltd. v. ACIT - (2004) 268 ITR 332 (Bom); 3. CIT and another v. Dr. N. Thippa Setty - [2010] 322 ITR 525 (Karn); 4. CIT v. Virmani Industries (P.) Ltd. - (1996) 216 ITR 607 (SC); 5. CST v. Amara Raja Batteries Ltd. - (2009) 8 SCC 209; - 13 - NC: 2024:KHC:38067 WP No. 6165 of 2022 6. Godrej and Boyce Manufacturing Co. Ltd. v. State of Maharashtra - (2009) 5 SCC 24; 7. CTO v. Bombay Machinery Store - (2020) 77 GSTR 304 (SC); 8. ACIT v. Gebilal Kanhaialal - [2012] 348 ITR 561 (SC); 9. CIT v. Primal Projects (P.) Ltd. - [2021] 123 taxmann.com (Karnataka); 10. PCIT v. Punit Chettiar alias Punit Balan - [2023] 457 ITR 32 (Bombay); 11. Steel Authority of India v. Collector of Customs - [2000] 115 ELT 42 (SC); 12. Chittharanjan A. Dasannacharya vs. CIT - [2020] 429 ITR 570; 13. Lavish Apartment (P) Ltd. vs. ACIT - [2018] 405 ITR 165 (Del); 14. Milestone Real Estate Fund vs. ACIT - [2019] 415 ITR 467 (Bom); 15. CIT v. N. P. Mathew [2006] 208 ITR 44 (Ker); 16. \"WikiDiff- Develop vs Developed- What's the difference?\" 17. CIT v. Radhe Developers - [2012] 17 taxmann.com 156 (Guj); 18. CWT vs Giridhar G. Yadalam - (2010) 325 ITR 233 (Kar); - 14 - NC: 2024:KHC:38067 WP No. 6165 of 2022 19. Giridhar G. Yadalarn v. CWT - (2015) 384 ITR 52 (SC); 20. Harrhajan Singh v. State of Punjab, - 1971 SCC OnLine P&H 298; 21. Silver Land Developers Pvt Ltd vs Empowered Committee - [(2021) 343 ITR 439 (Bom)]; 22. Finest Promoters (P.) Ltd. v. Uol - (2018) 96 taxmann.com 352 (Delhi); 23. Rule 18C as inserted with effect from 24.12.1998; 24. CIT v Ajantha Electricals - (1995) 215 ITR 114 (SC); 25. State of Bihar vs Suprabhat Steel Ltd - (1999) 1 SCC 31; 26. State of Jharkand vs. Bramaputra Metallics Ltd.- (2023) 10 SCC 634; 27. Manuelsons Hotels Pvt Ltd. vs. State of Kerela - (2016) 6 SCC 766; 28. Industrial Park Scheme, 1999; 29. CCE v. Hari Chand Shri Gopal and Others - [2011] 1 SCC 236; 30. Mavilayi Service Co-Operative Bank Ltd. v. CIT- [2021] 431 ITR 1 (SC); 31. Government of Kerala v. Mother Superior Adoration Convent - [2021] 126 taxmann.com 68 (SC); - 15 - NC: 2024:KHC:38067 WP No. 6165 of 2022 32. Bajaj Tempo Ltd. v. CIT - (1992) 196 ITR 188 (SC); 33. Architect's completion certificate dated 02.02.2007. 34. CIT v. N.C. Budharaja and Co., - (1993) 204 ITR 412 (SC); 35. P.R. Prabhakar v. CIT - (2006) 284 ITR 548 (SC) (para 9); 36. Bajaj Tempo Ltd. v. CIT - (1992) 196 ITR 188 (SC); 37. CIT v. Straw Board Mfg. Co. Ltd. - 1989 Supp (2) SCC 523 (SC); 38. CST v. Industrial Coal Enterprises - [1999] 2 SCC 607 (SC) (para 11); 39. State of Jharkhand v. Tata Cummins Ltd., - [2006] 4 SCC 57 (SC) (para 16); 40. Pondicherry State Coop. Consumer Federation Ltd. v. Union Territory of Pondicherry - [2008] 1 SCC 206 (SC) (paras 5-8); 41. Vadilal Chemicals Ltd. v. State of A.P. - [2005] 6 SCC 292 (SC) (paras 19 and 20); 42. Commr. of Customs (Preventive) v. M. Ambalal & Co. - [2011] 2 SCC 74 (SC) (para 16); - 16 - NC: 2024:KHC:38067 WP No. 6165 of 2022 43. ACCT v. Amara Raja Batteries Ltd (dated: July 27, 2009) 68 - KLJ 607 (SC): 2009-TIOL-89-SC-GST: (2009) 24 VST 536 (SC); 44. Gurucharan Singh v. Kamla Singh - (1976) 2 SCC 152; 45. State of UP v. J.J.Johnson - (1983) AWC 789 (SC); (1983) 4 SCC 110; 46. A.S.Mani v. Union of India and Others - (2003) 264 ITR 5 (Kar); 47. CIT v. J. Palemar Krishna - (2012) 72 KLJ 263 (HC). 7. Per contra, learned ASG for the 1st respondent would submit that there is no merit in the petition and the same is liable to be dismissed. He would elaborate his submissions as under:- (i) The scheme in IPS 2002 is to be subjected to strict interpretation and the same having ended on 31.03.2006, the petitioner’s application filed on 15.12.2006 was not maintainable and was rightly rejected by the 1st respondent. (ii) The expression “develop”, “develop and operate or maintain and operate” contained in IPS 2002 would mean commencement of the IT park in a way that is ready to use for the public and not commencement of the process of development and - 17 - NC: 2024:KHC:38067 WP No. 6165 of 2022 since the petitioner’s IT park was not completed and had not commenced as on 31.03.2006, the impugned order does not warrant interference in the present petition. (iii) The Ministry of Commerce had issued a communication dated 03.02.2009 to the effect that all applications filed after lapse of IPS 2002 on 31.03.2006 are to be returned and re-filed under IPS 2008, the petitioner is not entitled to the benefit of IPS 2002. (iv) The General Condition 9(i) in IPS 2002 is applicable only to applicants who applied before expiry of the scheme on 31.03.2006 and since there was no grace period set out in the said scheme, the petitioner’s application was rightly rejected by the 1st respondent. (v) The petitioner having violated Rule 18C of the I.T. Rules as it stood at the time of IPS 2002 is not entitled to the benefit of the said scheme, since he had not begun the development work prior to 31.03.2006. (vi) The petitioner is not entitled to place reliance upon Section 80-IA(4)(iii) of the I.T.Act which was meant only to accommodate those who filed applications after 31.03.2006 in the subsequent IPS 2008 scheme and not under IPS 2002 and as - 18 - NC: 2024:KHC:38067 WP No. 6165 of 2022 such, the petitioner is not entitled to the benefit of IPS 2002 by way of the present petition, which is liable to be dismissed. (vii) In support of his contentions, learned ASG has placed reliance upon the following judgments:- (i) Regency Soraj Infrastructures vs. Union of India & others – (2012) 205 Taxman 0062; (ii) CCE vs. Dilip Kumar & company – (2018) 361 ELT 577 (SC). 8. I have given my anxious consideration to the rival submissions and perused the material on record. 9. Before adverting to the rival submissions, it would be profitable to refer to the Order dated 16.03.2016 passed in W.P.3574/2010 in the earlier round of litigation between the petitioner and the respondents herein, which reads as under: “ Heard the learned counsel for the petitioners. 2. These petitions would seek to raise a common issue and hence are considered and disposed of together. 3. The petitioner is said to be a private limited company incorporated under the Companies Act, 1956 and the petitioner being a property developer had proposed to set up an industrial park called ‘Salarpuria Touch Stone’ in Bangalore. The said industrial park is said to be a joint - 19 - NC: 2024:KHC:38067 WP No. 6165 of 2022 venture between the petitioner and one T.Narayan and others under a Joint Development Agreement dated 9.2.2004. The industrial park measures an extent of 440,033.21 square feet, out of which, 2,97,861 square feet is to the account of the petitioner. The petitioner had filed an application for approval in Form IPS-I for setting up an industrial park under non- automatic route dated 15.12.2006. The acknowledgement was obtained on 21.12.2006 from the respondent. It transpires that the first respondent namely, the Secretary, Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India, had addressed a letter dated 4.1.2007, to the Director of Industries and Commerce, Government of Karnataka and called upon to furnish a report on certain queries raised and sending its recommendation for the consideration and approval of Form IPS-I application of the petitioner. The petitioner had furnished the details as required before the Joint Director of Industrial Development, Department of Industries and Commerce, Government of Karnataka. A report was thereafter filed on 1.3.2007, furnishing requisite opinion and recommending the proposal for consideration for approval. On 4.9.2007, the petitioner is said to have addressed a letter to the first respondent insofar as the approval of IPS-I filed under the Industrial Park Scheme – 2002 (Hereinafter referred to as ‘IPS-2002’, for brevity) and requested that the same be taken up in the agenda at the forthcoming meeting for consideration. Additional information was sought, which was furnished by the petitioner. Thereafter, an endorsement - 20 - NC: 2024:KHC:38067 WP No. 6165 of 2022 was issued only as on 3.2.2009 stating that the petitioner’s application is not covered under the IPS 2002 as notified by the Department of Industrial Policy and Promotion and has been returned without affording an opportunity to the petitioner before taking such action. It is in this background that the present petition is filed. 4. The connected petition in WP 25321/2009 is filed by a Confederation of Real Estate Developers Association of India and is raising academic issues, by which the petitioner in WP 3574/2010 is directly affected and therefore, the decision which would be rendered in WP 3574/2010 would be applicable to those members of the Confederation, who may be similarly placed and the law decided therein would apply to the respective members of the petitioner – Federation. 5. The second petitioner in WP 14987/2009 had filed an application seeking approval of the First Phase of Industrial Park by an application dated 29.11.2005. The second respondent had granted approval to the second petitioner on the condition that the Industrial Park should commence from June 2004, failing which a fresh approval was to be obtained under the IPS 2002. The first respondent however inserted a proviso to Section 80-1A(4)(iii) of the Income Tax Act, 1961, extending the benefit to the Industrial Parks developed on or before 31.3.2009. It is only as on 28.5.2007, the first petitioner had filed an application seeking approval under the IPS 2002 and as in the case of the petitioner in WP 3574/2010, the respondents have held that the petitioners were no longer under the IPS-2002, as they had not completed the development before 31.3.2006 and - 21 - NC: 2024:KHC:38067 WP No. 6165 of 2022 intimated however that it is the IPS 2005, which would apply. Hence, the petitioners are before this court. 6. It is claimed that the Central Government, vide notification dated 1.4.2002, issued in exercise of powers conferred under Section 80-1A(4)(iii) of the Income Tax Act, 1961, has framed a Scheme called the ‘Industrial Park Scheme 2002’. The Scheme was applicable for any undertaking which developed and operated or maintained and operated as an Industrial Park for the period beginning 1.4.1997 and ending 31.3.2006. In a case where an undertaking developed an Industrial Park on or after 1.4.1999 and transferred the operation and maintenance of such industrial park to another undertaking, the benefits shall be allowed to such transferee undertaking for the remaining period in ten consecutive assessment years in a manner as if the operation and maintenance were not so transferred to the transferee undertaking. The objectives of the Industrial Park were that any project, being an industrial park, should aim at setting up an industrial model town for development of industrial infrastructure for carrying out integrated manufacturing activities including research and development by providing plots or sheds and common facilities within its precincts; or an Industrial Park for development of infrastructure facilities or built-up space with common facilities in any area allotted or earmarked for the purposes of industrial use specified in Explanation to Para-6 sub-clause (c) or a growth centre under the Growth Centre Scheme of the Government of India. The procedures were prescribed as to the manner of approval, which can be automatic approval, which was applicable - 22 - NC: 2024:KHC:38067 WP No. 6165 of 2022 dependant on the number of units and non-automatic approval in respect of other units not covered under the automatic route. The general conditions prescribed included that the tax benefit under the IT Act can be availed only after the number of units indicated in the application are located in the industrial park, meaning thereby that not only was the park to be developed, but also was to be occupied by units in the form. It was also provided under the general conditions in case the commencement of the Industrial Model Town or Industrial Park or Growth Centre gets delayed by more than one year from the date indicated in the application, fresh approval may have to be obtained to get the benefits under the Act. It is not in dispute that the petitioner in WP 3574/2010 had in his application indicated that the probable date of completion of the development would be 28.2.2007. This was obviously beyond 31.3.2006, by which time, the Scheme contemplated that the development should be completed. Therefore, the indication by the petitioner that the development would be completed by 28.2.2007 could not be availed of by the petitioner. In other words, any date of completion could not be beyond 31.3.2006. The condition that there would be a grace period for those units which are not completed, for the development of the park, as on 31.3.2006, they can be completed within one year therefrom would be inapplicable if the date of completion is indicated as 31.3.2006. Hence, notwithstanding the date indicated by the petitioners, it can only be taken as 31.3.2006. 7. Consequently, the petitioner’s application having been returned with an observation that since the authorities - 23 - NC: 2024:KHC:38067 WP No. 6165 of 2022 have no power to consider cases where the completion of development is beyond 31.3.2006, the date indicated by the petitioner was invalid and could not therefore be considered, is not fair to the petitioner. For it was evident that under the general conditions there was a grace period of one year from 31.3.2006 within which the development could be completed and the petitioner having ultimately completed the development and an “Occupation Certificate” possibly having been obtained as on 28.2.2007, it is well within the period of one year grace period from 31.3.2006 to 31.3.2007. Therefore, the petitioner being denied the benefit only on the ground that the date of completion had been indicated as something beyond 31.3.2006 and therefore could not be considered would obviously deny the petitioner the benefit of the grace period, which is contemplated under the general conditions. If the petitioner had indeed completed the development before 31.3.2007, it is inexplicable that with the coming into force of the 2008 Scheme, which was gazetted only as on 8.1.2008 and since it was with retrospective effect from 1.4.2006, to indicate to the petitioner that it was covered under 2008 Scheme and not under IPS 2002, is wholly unreasonable for the reason that the completion certificate of the petitioner’s park was of 28.2.2007 and logically, the petitioner’s application for approval was well within 31.3.2007. By the operation of IPS 2002 as on the date of completion, the petitioner was certainly entitled to the benefit. It is only with effect from 8.1.2008 albeit that it was brought into force with retrospective effect, namely, 1.4.2006. The petitioner being denied the benefit of IPS 2002 is unreasonable and unfair. Therefore, the petitioner having - 24 - NC: 2024:KHC:38067 WP No. 6165 of 2022 completed the development before 31.3.2007 notwithstanding that the last date for completion prescribed was 31.3.2006, since the Scheme itself contemplated a grace period of one year and the petitioner having completed the development within one year from 31.1.2006, is held entitled to the benefit contemplated under IPS 2002. Notwithstanding that 2008 Scheme has been made effective from 1.4.2006 in respect of those parks which commenced development from 1.4.2006, certainly 2008 Scheme would apply it would be possible for the respondents to take a view on that. Insofar as the petitioner is concerned, the tax benefits being denied under the IPS 2002 is unlawful and illegal. Since the authorities are yet to adjudicate on the petitioner’s claim and a mere endorsement having been issued that he should make a fresh application under the 2008 Scheme, it may be necessary for the Empowered Committee under IPS 2002 to take a call on the petitioner’s application for approval in the light of the observations made hereinabove and dispose of the same with expedition. Since there was obvious delay in completion of the development beyond 31.3.2006, the worst that could affect the petitioner is denial of a tax holiday by one year since he has completed development only in the year 2007 and almost at the fag end of the financial year of 2006-07. Consequently, the petitioner could at best be denied tax benefit or tax holiday for one financial year namely 2006-07. Since the tax holiday sought for by the petitioner dates back to almost a decade, it is necessary that the petitioner be granted the benefit one way or the other. Hence, it is imperative that the Committee adjudicates and passes an order within a period of - 25 - NC: 2024:KHC:38067 WP No. 6165 of 2022 three months, if not earlier, from the date of receipt of a copy of this order. 8. The connected petitions are disposed of in the light of the observations made and the opinion expressed in terms of the order passed in WP 3574/2010. Insofar as the connected petition in WP 25321/2009, the learned counsel for the revenue would point out that the petition is couched in generalities and there are various members of the petitioner - federation who would generally seek to reopen the closed issues and would seek that the benefit of the order passed would apply to them across the board. This may not be possible for the reason that each of those members of the federation would have to demonstrate that the sequence of events and the dates involved would enable them to claim the benefit of the order and not otherwise. Hence it would be considered on a case to case basis. It is for the respondents to consider any such claim set up by the members of the Federation and it is made clear that it is only in respect of any applications that are pending that the benefit would be claimed by the members of the Federation and not by filing any fresh application. 10. The findings recorded by this Court in the aforesaid order can be summarized as follows; • That the petitioner upon completion of development work had obtained the occupation certificate well within the period of one year grace period; - 26 - NC: 2024:KHC:38067 WP No. 6165 of 2022 • Non-consideration of the petitioner’s application would deny the benefit of grace period as contemplated under the general conditions. • It would be wholly unreasonable to come to the conclusion that the petitioner is covered under 2008 scheme and not under IPS 2002 as contended by the petitioner. • By the operation of IPS 2002 as on the date of completion, the petitioner was certainly entitled to the benefit. • The denial of tax benefit under IPS 2002 to the petitioner is unreasonable and unfair. • The tax benefit being denied under the IPS 2002 is unlawful and illegal; 11. As stated supra, the 1st respondent sought for review of the aforesaid order by preferring R.P.No.63/2024 which was dismissed by this Court vide Order dated 05.03.2024 by holding as under; “ This review petition is directed against the impugned order dated 16.03.2016 passed in W.P.No.3574/2010, whereby the said petition along with - 27 - NC: 2024:KHC:38067 WP No. 6165 of 2022 connected matters were disposed of by the learned Single Judge. 2. Heard learned Senior counsel for the review petitioner and learned Senior counsel for the 1st respondent and learned counsel for the 2nd respondent – revenue and perused the material on record. 3. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned Senior Counsel for the petitioner invited my attention to the Affidavit in support of the application filed under Section 5 of the Limitation Act seeking condonation of delay in filing the Review Petition in order to contend that on account of the reasons stated therein, the delay on the part of the petitioner to file the present review petition within the prescribed period was due to bonafide reasons, unavoidable circumstances and sufficient cause. It was also submitted that there are several errors apparent on the face of the record in the impugned order warranting interference by this Court in the present petition and as such, the impugned order deserves to be set aside. 4. Per contra, learned Senior Counsel for the 1st respondent – writ petitioner would reiterate the various contentions urged in the statement of objections and submit that neither valid nor sufficient ground had been made out by the petitioner to seek condonation of delay in filing the review petition. It is also submitted that there are no errors apparent on the face of the record and the impugned order does not warrant interference in the present petition, which is liable to be dismissed. - 28 - NC: 2024:KHC:38067 WP No. 6165 of 2022 5. A perusal of the Affidavit filed in support of I.A.No.1 filed for condonation of delay by the review petitioner will indicate that except stating that certain deliberations were held after passing the impugned order during the period 2016-17, no explanation whatsoever, much less satisfactory explanation as regards the delay between 2017 upto 14.02.2024 when the present review petition was filed has been urged by the petitioner. It is relevant to state that the writ petition in W.P.No.6165/2022 having been filed more than two years prior to filing the present review petition, no reasons have been assigned as to why the review petition was not filed earlier by the petitioner. In fact, it was only after arguments in W.P.No.6165/2022 had commenced that the review petitioner filed the present review petition. It is therefore clear that neither valid nor sufficient ground had been made out by the petitioner to seek condonation of delay of 2861 days in filing the review petition and the conduct of the petitioner disentitles it from any indulgence in the present review petition, which is liable to be dismissed on the ground of delay and latches alone. 6. It is relevant to state that a perusal of the impugned order will clearly indicate that the same does not fall within the parameters contained in Order 47 Rule 1 r/w Section 114 CPC or Article 226 of the Constitution of India warranting review of the impugned order. Even otherwise on merits, a perusal of the impugned order and the various contentions urged in the review petition is sufficient to come to the sole conclusion that the impugned order does not warrant interference by this Court in the light of the parameters governing exercise of review jurisdiction as held - 29 - NC: 2024:KHC:38067 WP No. 6165 of 2022 by the Apex Court in the cases of (i) Shri Ram Sahu vs. Vinod Kumar Rawat – Civil Appeal No.3601/2020 dated 03.11.2020, (ii) S.Murali Sundaram vs. Jothibai Kannan – (2023) SCC Online SC 185 (iii) S.Madhusudhan Reddy vs. V.Narayana Reddy – Civil Appeal Nos.5503-04/2022 dated 18.08.2022 and the recent judgment of the Apex Court in the case of (iv) Sanjay Kumar Agarwal vs. State Tax Officer –2023 SCC Online SC 1406, wherein it is held as under:- 16. The gist of the afore-stated decisions is that:— (i) A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record. (ii) A judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. (iii) An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review. (iv) In exercise of the jurisdiction under Order 47 Rule 1 CPC, it is not permissible for an erroneous decision to be “reheard and corrected.” (v) A Review Petition has a limited purpose and cannot be allowed to be “an appeal in disguise.” (vi) Under the guise of review, the petitioner cannot be permitted to re-agitate and reargue the questions which have already been addressed and decided. (vii) An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions. (viii) Even the change in law or subsequent decision/judgment of a co-ordinate or larger Bench by itself cannot be regarded as a ground for review. 7. Accordingly, on the ground of delay and latches as well as on merits, I do not find any grounds to interfere - 30 - NC: 2024:KHC:38067 WP No. 6165 of 2022 with the impugned order and the review petition is accordingly dismissed.” 12. The aforesaid order passed by this Court dismissing R.P.No.63/2024 has attained finality and become conclusive and binding upon the 1st respondent; further, the facts and grounds urged by the 1st respondent in R.P.No.63/2024 will also indicate that it is aggrieved by the findings recorded in favour of the petitioner in W.P.No.3574/2010 against the 1st respondent. Under these circumstances, I am of the view of that in the light of the findings recorded by this Court in W.P.No.3574/2010 which were confirmed in R.P.No.63/2024, the impugned order passed by the 1st respondent once again rejecting the application of the petitioner under IPS 2002 deserves to be quashed. 13. A perusal of the impugned order will indicate that the 1st respondent has rejected the application filed by the petitioner under IPS 2002 on the ground that the application was filed on 15.12.2006 after the expiry of IPS 2002 on 31.03.2006; however, in the earlier Endorsement dated 03.02.2009 issued by the 1st respondent which was quashed by this Court in W.P.No.3574/2010, this reason was conspicuously absent; on the other hand, the only - 31 - NC: 2024:KHC:38067 WP No. 6165 of 2022 reason stated was that since the expected date of commencement of industrial park as mentioned in the application is after 31.03.2006, the application is not covered under IPS 2002. In response thereto, vide its letter dated 16.11.2009, the petitioner requested the 1st respondent to reconsider its application. However, vide the reply dated 08.01.2010 the 1st respondent reiterated that it does not have the mandate and is not the registering authority for applications relating to ‘parks set up on or after 01.04.2006’. It is therefore clear that in both the endorsement dated 03.02.2009 and the reply dated 16.11.2009, there are no averments by the 1st respondent as to the date of application being beyond 31.03.2006; so also, even in the Counter Affidavits filed by the 1st and 2nd Respondents in W.P.No.3574 of 2010, it was never their case that the application under IPS 2002 is returned on account of it being filed beyond 31.03.2006 or that the application cannot be entertained on account of it being filed beyond 31.03.2006. In this context, it is also relevant to state that in the aforesaid order dated 16.03.2016 passed in W.P.No.3574/2010, despite the application having been filed subsequent to 31.03.2006, this Court recorded findings in favour of the petitioner, thereby indicating that mere filing of the application on 15.12.2006, - 32 - NC: 2024:KHC:38067 WP No. 6165 of 2022 i.e., subsequent to 31.03.2006 would not come in the way of the petitioner’s application being considered under IPS 2002. 14. It is well settled that the 1st respondent cannot be permitted to improve upon the reasons given by it earlier and that reasons cannot be permitted to grow with time as held by the Apex Court in the case of Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405, which reads as under:- 8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [Commr. of Police, Bombay v. Gordhandas Bhanji, 1951 SCC 1088 : AIR 1952 SC 16] : “Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” Orders are not like old wine becoming better as they grow older. - 33 - NC: 2024:KHC:38067 WP No. 6165 of 2022 15. So also, in the case of Hindustan Lever Ltd. v. R.B. Wadkar, (2004) 268 ITR 332, it was held as under: 21. The reasons recorded by the Assessing Officer nowhere state that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of that assessment year. It is needless to mention that the reasons are required to be read as they were recorded by the Assessing Officer. No substitution or deletion is permissible. No additions can be made to those reasons. No inference can be allowed to be drawn based on reasons not recorded. It is for the Assessing Officer to disclose and open his mind through reasons recorded by him. He has to speak through his reasons. It is for the Assessing Officer to reach to the conclusion as to whether there was failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the concerned assessment year. It is for the Assessing Officer to form his opinion. It is for him to put his opinion on record in black and white. The reasons record should be clear and unambiguous and should not suffer from any vagueness. The reasons recorded must disclose his mind. Reasons are the manifestation of mind of the Assessing Officer. The reasons recorded should be self- explanatory and should not keep the assessee guessing for the reasons, Reasons provide link between conclusion and evidence. The reasons recorded, must be based on evidence. The Assessing Officer, in the event of challenge to the reasons, must be able to justify the same based on - 34 - NC: 2024:KHC:38067 WP No. 6165 of 2022 material available on record. He must disclose in the reasons as to which fact or material was not disclosed by the assessee fully and truly necessary for assessment of that assessment year, so as to establish vital link between the reasons and evidence. That vital link is the safeguard against arbitrary reopening of the concluded assessment. The reasons recorded by the Assessing Officer cannot be supplemented by filing affidavit or making oral submission, otherwise, the reasons which were lacking in the material particulars would get supplemented, by the time the matter reaches to the Court, on the strength of affidavit or oral submissions advanced. 16. This Court in the case of CIT and another v. Dr. N. Thippa Setty - [2010] 322 ITR 525 (Karn), held as under: 33. Confronted with an identical fact situation, the Bombay High Court in the matter of Hindustan Lever Ltd. [2004] 268 ITR 332 has held as under (page 338) : “It is needless to mention that the reasons are required to be read as they were recorded by the Assessing Officer. No substitution or deletion is permissible. No additions can be made to those reasons. No inference can be allowed to be drawn based on reasons not recorded. It is for the Assessing Officer to disclose and open his mind through reasons recorded by him. He has to speak through his reasons. It is for the Assessing Officer to reach the conclusion as to whether there was failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the concerned assessment year. It is for the Assessing Officer to form his opinion. It is for him to put his opinion on record in black and white. The reasons recorded should be clear and unambiguous and should not suffer from any vagueness. The reasons recorded must disclose his mind. The reasons are the manifestation of the mind of - 35 - NC: 2024:KHC:38067 WP No. 6165 of 2022 the Assessing Officer. The reasons recorded should be self-explanatory and should not keep the assessee guessing for the reasons. Reasons provide the link between conclusion and evidence. The reasons recorded must be based on evidence. The Assessing Officer, in the event of challenge to the reasons, must be able to justify the same based on material available on record. He must disclose in the reasons as to which fact or material was not disclosed by the assessee fully and truly necessary for assessment of that assessment year, so as to establish the vital link between the reasons and evidence. That vital link is the safeguard against arbitrary reopening of the concluded assessment.” 34. The Supreme Court in the matter of Indian Oil Corporation [1986] 159ITR 956 : “but reason to believe is not the same thing as reason to suspect.” 35. Now, coming to the single Bench judgment of this court in the matter of A. Nagappa, wherein the reasons of the Assessing Officer, were elaborate, were reproduced. Yet it proceeded to quash the notice issued to the assessee under section 148 of the Act. This order was the subject- matter of challenge at the instance of the Revenue in W. A. No. 928 of 1991 before the Division Bench of this court, which held as under : “More than the ADI's report which the learned judge characterised as evasive and speculative, it is the statement of reasons for the reopening which is evasive and speculative. We find no basis therein which could have led the appellant to entertain reasons to believe that income chargeable to tax had escaped assessment for the relevant assessment year. It is imperative that the reasons should have a rational and relevant nexus to the formation of such belief. We do not find such nexus.” 36. The Supreme Court had the occasion to consider this aspect of the matter in Ganga Saran and Sons P. Ltd. - 36 - NC: 2024:KHC:38067 WP No. 6165 of 2022 [1981] 130 ITR 1, wherein it has dealt with the situation beautifully by holding as under (page 11) : “It is well settled as a result of several decisions of this court that two distinct conditions must be satisfied before the Income-tax Officer can assume jurisdiction to issue notice under section 147(a). First, he must have reason to believe that the income of the assessee has escaped assessment and, secondly, he must have reason to believe that such escapement is by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment. If either of these conditions is not fulfilled, the notice issued by the Income-tax Officer would be without jurisdiction. The important words under section 147(a) are ‘has reason to believe’ and these words are stronger than the words ‘is satisfied’. The belief entertained by the Income-tax Officer must not be arbitrary or irrational. It must be reasonable or in other words it must be based on reasons which are relevant and material.” 37. In the light of the aforesaid judgments of various High Courts and the Supreme Court, we have examined whether there existed sufficient reasons for reopening of the case against the assessee, exercising the power conferred on the Assessing Officer under section 148 of the Act. The reasons to believe have been reproduced by us as recorded by the Assessing Officer. The same would show that he was not even able to find out prima facie case with regard to the escaped assessment within the meaning of section 147 of the Act. 17. The aforesaid facts and circumstances clearly establish that the impugned order passed by the 1st respondent once again - 37 - NC: 2024:KHC:38067 WP No. 6165 of 2022 rejecting the application of the petitioner under IPS 2002 deserves to be quashed. 18. It is an undisputed fact and a matter of record that IPS 2002 came into force on 01.04.2002; the relevant Clauses 3 and 9 of IPS 2002 are extracted hereunder: 3. Period of operation of the Scheme – This Scheme shall be applicable for any undertaking which develops and operates or maintains and operates an industrial park for the period beginning on the 1st day of April, 1997 and ending on the 31st day of April, 1997 and ending on the 31st day of March, 2006. In a case, where an undertaking develops and industrial park on or after the 1st day of April, 1999 and transfers the operation and maintenance of such industrial park to another undertaking transferee undertaking), the benefits shall be allowed to such transferee undertaking for the remaining period in the ten consecutive assessment years in a manner as if the operation and maintenance were not so transferred to the transferee undertaking.” 9. General conditions - (1) In case the commencing of the industrial model town or industrial park of growth centre gets delayed to more than 1 year from the date indicated in the application, fresh approval may have to be obtained to get the benefits under the Act, This conditions also applies tot existing approvals under the Industrial Park - 38 - NC: 2024:KHC:38067 WP No. 6165 of 2022 Scheme, which envisages commissioning of the parks, latest by 31st March, 2002. (2) The tax benefit under the Act can be availed only after the number of units indicates in the application, are located in the Industrial Park. (3) The undertaking applying for approval shall undertake to continue to operate the industrial model town or industrial park or growth centre during the period in which the benefits under the Act are to be availed. (4) In a case where an undertaking develops an industrial park on or after the 1st day April, 1999 and transfers the operation and maintenance of such industrial park ( i.e., transferor undertaking) to another undertaking (i.e., the transferee undertaking), the transferor and transferee shall jointly intimates to the Entrepreneurial Assistance Unit of the Secretariat for Industrial Assistance, Department of Industrial Policy and Promotion, Udyog Bhawan, New Delhi-11 along with a copy of the agreement executed between the transferor and transferee undertaking for the aforesaid transfer. Secretariat for Industrial Assistance shall on receipt of each such intimation issue a communication to the Applicants of having taken the intimation on record. 5. Every undertaking, which has been granted approval, shall continue to furnish to the Central Government on 1st January and 1st July of every year a report in the Form IPS-II during the period in which the benefits under the Act are to be availed.” - 39 - NC: 2024:KHC:38067 WP No. 6165 of 2022 19. A perusal of the aforesaid clauses of IPS 2002 will indicate that it does not provide any cut-off date for furnishing of application as clearly admitted by the 1st respondent in its statement of objections at paragraphs 5 and 8 as hereunder: 5. This Respondent submits that, as no provision regarding cut off date was laid down in IPS 2002 and on account of the new scheme under IPS 2008, the application submitted by various undertakings in the intervening period were kept pending till the notification of the new scheme IPS 2008. Thereafter, in the light of notification of IPS 2008 as stated here above supra, the DPIIT had taken an administrative decision on December 2008 to return all the pending applications which the accepted date of commencement of Industrial Park was after 31.03.2006 i.e., after the expiry of IPS 2002 as the said DPIIT had to authority of power to exercise its function to process such applications. Therefore, all such applications were returned to the concerned undertakings to apply under the new scheme i.e., IPS 2008. The application submitted by the petitioner too was returned to it vide Letter dated: 03.02.2009. It was informed to the Petitioner to apply under new scheme 2008 notified by the Respondent No.2 vide Notification No.SO50(E) dated:08.01.2008. True copy of the letter dated: 03.02.2009 is produced and marked as Annexure-R3. 8. This Respondent submits that there is another administrative decision was taken regarding cut off date for consideration of application submitted under IPS 2002 as no - 40 - NC: 2024:KHC:38067 WP No. 6165 of 2022 cut off dates was laid down in IPS 2002 scheme. The cut off date for receipt of application was decided as 30.04.2006 after having consultation of CBDT which could also seen from the OM dated 11.02.2011.. 20. As is clear from the aforesaid averments, the respondents have admitted/conceded that there is no cut-off date provided for in IPS 2002 for making an application which is also in line/consonance/conformity with the Scheme provided in IPS 2002, which does not specify any cut off date for making an application; further, neither Section 80-IA(4)(iii) nor Rule 18C provide a cut-off date for making application in Form IPS-1 under IPS 2002; further, vide communication dated 10.10.2007, the 1st respondent sought for information from the petitioner as to whether the park has become functional and how many units are located in the park; petitioner submitted its replies dated 25.10.2007 and 31.10.2007 confirming that the park is fully functional and stated that three units have occupied the park and are functioning, despite which the 1st respondent did not either inform the petitioner or take up any contention that the application dated 15.12.2006 filed by the petitioner was belated and consequently, the said reasons assigned by the 1st respondent in the impugned order for the - 41 - NC: 2024:KHC:38067 WP No. 6165 of 2022 purpose of rejecting the application filed by the petitioner deserve to be set aside. 21. Section 80-IA(4)(iii) of the I.T Act reads as under: 80-IA – Deductions in respect of profits and gains from industrial undertakings or enterprises engaged infrastructure development, etc., (1) xxxxxxx (2) xxxxxxx (3) xxxxxxx (4) This Section applies to – (i) xxxxxxx (ii) xxxxxxx (iii) any undertaking which develops, develops and operates an maintains and operates an industrial park [or special economic zone] [ Inserted by Act 14 of 2001, Section 44 (w.e.f. 1.4.2002).] notified by the Central Government in accordance with the scheme framed and notified by that Government for the period beginning on the 1st day of April, 1997 and ending on [the 31st day of March, 2006] [ Substituted by Act 14 of 2001, Section 44, for \" 31st day of March, 2002\" (w.e.f. 1.4.2001).]; [Provided that in a case where an undertaking develops an industrial park on or after the 1st day of April, 1999 or a special economic zone on or after the 1st day of April, 2001 and transfers the operation and maintenance of such industrial park or such special economic zone, as the case may be, to another undertaking (hereafter in this - 42 - NC: 2024:KHC:38067 WP No. 6165 of 2022 section referred to as the transferee undertaking), the deduction under sub-section (1) shall be allowed to such transferee undertaking for the remaining period in the ten consecutive assessment years as if the operation and maintenance were not so transferred to the transferee undertaking:] [ Substituted by Act 32 of 2003, Section 38, for the proviso (w.r.e.f. 1.4.2002).] [Provided further that in the case of any undertaking which develops, develops and operates or maintains and operates an industrial park, the provisions of this clause shall have effect as if for the figures, letters and words \"31st day of March, 2006\", the figures, letters and words ] [ Inserted by Act 21 of 2006, Section 18 (w.e.f. 1.4.2007).][the 31st day of March, 2011] [ Substituted by Act 33 of 2009, Section 36, for \" the 31st day of March, 2009\" (w.e.f. 1.4.2009).][had been substituted; ] [ Inserted by Act 21 of 2006, Section 18 (w.e.f. 1.4.2007).] [ Substituted by Act 14 of 2001, Section 44, for the Explanation (w.e.f. 1.4.2002).] 22. A plain reading of Section 80-IA(4)(iii) will indicate that the same provides a window from 01.04.1997 to 31.03.2011 to file an application and therefore, the IPS 2002 could not and rightly did not put any condition on date of application; in fact, it is permissible to make the application even after the actual date of completion of development, particularly when the 1st respondent was not justified in imposing an extra-legal condition of requirement of filing of - 43 - NC: 2024:KHC:38067 WP No. 6165 of 2022 application before 31.03.2006, when no such condition is present in Section 80-IA(4)(iii) or IPS 2002. 23. The Apex Court in the case of CIT v. Virmani Industries (P) Ltd., - (1995) 6 SCC 466 held as under; 16. Sub-section (3) of Section 73 reads: “(3) In respect of allowance on account of depreciation or capital expenditure on scientific research, the provisions of sub-section (2) of Section 72 shall apply in relation to speculation business as they apply in relation to any other business.” 17. We may first consider the meaning of the expression “profits or gains chargeable”. On first impression, the said expression appears to refer only to profits or gains of business or profession chargeable under Section 28. But this Court has repeatedly held that the said expression is not so confined and that it refers to income under all the heads of income specified in Section 14. In Jaipuria China Clay Mines (P) Ltd. [(1966) 59 ITR 555 : AIR 1966 SC 1187] the facts were these: the total income of the respondent-assessee for the Assessment Year 1952-53 before charging depreciation was Rs 14,041. After deducting depreciation of Rs 5360, the Income Tax Officer computed the profit at Rs 8681. Against this profit, he set off the losses of an earlier year. Having done this, the Income Tax Officer computed the income of the assessee from dividends at Rs 2,01,130 and levied tax on it. The assessee claimed that the unabsorbed depreciation aggregating to Rs 76,857 should be deducted from the dividend and if it is so - 44 - NC: 2024:KHC:38067 WP No. 6165 of 2022 done, the total income would get reduced to Rs 1,32,955. The Income Tax Officer rejected the claim. When the matter was ultimately carried to this Court, it took note of the opening words of sub-section, viz., “where, in the assessment of the assessee or if the assessee is a registered firm, in the assessment of its partners, full effect cannot be given to any such allowance…” and held on that basis that the expression “profits or gains chargeable” in the said sub-section is not confined to profits and gains from business or profession but takes within its ambit all heads of income. This Court was of the opinion that while amending Section 10(2)(vi) of the Indian Income Tax Act, 1922 by the Amendment Act 25 of 1953, Parliament has accepted the interpretation placed upon the said expression by several High Courts to the above effect. It referred to the decisions of the Lahore High Court in Karam Ilahi Muhammad Shafi v. CIT [(1929) 3 ITC 456 (Lah)] , the Madras High Court in A. Suppan Chettiar & Co. v. CIT [(1929) 4 ITC 211 (Mad)] , the East Punjab High Court in Laxmichand Jaiporia Spg. & Wvg. Mills, in re [(1950) 18 ITR 919 (EP)] and the Bombay High Court in Ambika Silk Mills Co. Ltd. v. CIT [(1952) 22 ITR 58 (Bom)] besides the judgment of the Judicial Commissioner, Nagpur in Ballarpur Collieries v. CIT [(1929) 4 ITC 255] interpreting the said expression as covering all heads of income. The Court further pointed out that even after the said amendment, the Bombay and Gujarat High Courts have taken the same view in CIT v. Ravi Industries Ltd. [(1963) 49 ITR 145 (Bom)] and CIT v. Girdharlal Harivallabhadas Mills Co. Ltd. [(1964) 51 ITR 693 (Guj)] respectively. The contrary view taken by - 45 - NC: 2024:KHC:38067 WP No. 6165 of 2022 the Madras High Court in CIT v. B. Nagi Reddy [(1964) 51 ITR 178 (Mad)] was disapproved. The Court then observed: “Bearing these two considerations in mind, if one looks at the language of proviso (b) to Section 10(2)(vi), the first question that arises is: What is the meaning of the expression ‘in the assessment of the assessee or if the assessee is a registered firm, in the assessment of the partners, full effect cannot be given to any such allowance in any year?’ … Taking the case of the partners of a registered firm, the assessment must be their individual assessments, i.e., assessments in which the profits from the firm and other sources are pooled together. The legislature is clearly assuming that effect can be given to depreciation allowance in the assessment of a partner; the only way effect can be given in the assessment of a partner is by setting it off against income, profits and gains under other heads. The learned counsel for the revenue tried to meet this inference by suggesting that what the legislature contemplated was an assessment of those partners who were carrying on other business. But in our opinion this suggestion is unsound. What would happen if a partnership consists of four partners, two carrying on other business and two carrying on no other business, Mr Sastri was unable to explain. Now, if this is the inference to be drawn from these words, it is quite clear that the words ‘no profits or gains chargeable for that year’ are not confined to profits and gains derived from the business whose income is being computed under Section 10.” 18. To the same effect is the decision in Rajapalayam Mills Ltd. v. CIT [(1978) 4 SCC 322 : 1979 SCC (Tax) 8 : (1978) 115 ITR 777] . The Court observed that when the profits or gains of a business for a particular assessment year are to be computed under Section 10 (of 1922 Act), the current depreciation allowance for the assessment year in question is deductible under clause (vi) of Section 10(2), but the depreciation allowance of the preceding years would be liable to be taken into account only if, and to the extent to - 46 - NC: 2024:KHC:38067 WP No. 6165 of 2022 which, it is not absorbed by the total income of the assessee computed under different heads and chargeable to tax for those assessment years. The Court observed: (SCC p. 330, para 8) “Now, it is well settled, as a result of the decision of this Court in CIT v. Jaipuria China Clay Mines (P) Ltd. [(1966) 59 ITR 555 : AIR 1966 SC 1187] , that the words ‘no profits or gains chargeable for that year’ are not confined to profits and gains derived from the business whose income is being computed under Section 10, but they refer to the totality of the profits or gains computed under the various heads and chargeable to tax.” and added: (SCC pp. 330-31, para 8) “It is, therefore, clear that effect must be given to depreciation allowance first against the profits or gains of the particular business whose income is being computed under Section 10 and if the profits of that business are not sufficient to absorb the depreciation allowance, the allowance to the extent to which it is not absorbed would be set off against the profits of any other business and if a part of the depreciation allowance still remains unabsorbed, it would be liable to be set off against the profits or gains chargeable under any other head and it is only if some part of the depreciation allowance still remains unabsorbed that it can be carried forward to the next assessment year. … But where any part of the depreciation allowance remains unabsorbed after being set off against the total income chargeable to tax, it can be carried forward under proviso (b) to clause (vi) to the following year and set off against that year's income and so on for succeeding years. The method adopted by the statute for achieving this result is that the carried forward depreciation allowance is deemed to be part of and stands on exactly the same footing as, the current depreciation for the assessment year and is thus allowable as a deduction under clause (vi).” - 47 - NC: 2024:KHC:38067 WP No. 6165 of 2022 24. In the case of CST v. Amara Raja Batteries Ltd. - (2009) 8 SCC 209, the Apex Court held as under: 21. An exemption notification should be given a literary (sic literal) meaning. Recourse to other principles or canons of interpretation of statute should be resorted to only in the event the same give rise to anomaly or absurdity. The exemption notification must be construed having regard to the purpose and object it seeks to achieve. The Government sought for increase in industrial development in the State. Such a benevolent act on the part of the State, unless there exists any statutory interdict, should be given full effect. (See Vadilal Chemicals Ltd. v. State of A.P. [(2005) 6 SCC 292] ) 25. In the case of Godrej and Boyce Manufacturing Co. Ltd. v. State of Maharashtra - (2009) 5 SCC 24, the Apex Court held as under- 64. Having regard to the nature of the law the submission advanced on behalf of the municipal authority would lead to palpably unjust and inequitable results. The landowner whose land is designated in the development plan as reserved for any of the purposes enumerated in Section 22 of the Act or for any of the amenities as defined under Section 2(2) of the Act or Regulation 2(7) [sic Regulation 3(7)] of the Regulations is not left with many options and he does not have the same bargaining position as the municipal - 48 - NC: 2024:KHC:38067 WP No. 6165 of 2022 authority. Therefore, surrender of the land in terms of clause (b) of Section 126(1) of the Act cannot be subjected to any further conditions than those already provided for in the statutory provisions. It is of course open to the legislature to add to the conditions provided for in the statute (or for that matter to do away with certain conditions that might be in existence). But it certainly cannot be left in the hands of the executive to impose conditions in addition to those in the statutes for accepting the offer to surrender the designated land. 26. In the case of Mavilayi Service Coop. Bank Ltd. v. CIT - (2021) 7 SCC 90, the Apex Court held as under; 48. To sum up, therefore, the ratio decidendi of Citizen Coop. Society [Citizen Coop. Society Ltd. v. CIT, (2017) 9 SCC 364] , must be given effect to. Section 80-P of the IT Act, being a benevolent provision enacted by Parliament to encourage and promote the credit of the cooperative sector in general must be read liberally and reasonably, and if there is ambiguity, in favour of the assessee. A deduction that is given without any reference to any restriction or limitation cannot be restricted or limited by implication, as is sought to be done by the Revenue in the present case by adding the word “agriculture” into Section 80-P(2)(a)(i) when it is not there. Further, Section 80-P(4) is to be read as a proviso, which proviso now specifically excludes cooperative banks which are cooperative societies engaged in banking business i.e. engaged in lending money to members of the public, which - 49 - NC: 2024:KHC:38067 WP No. 6165 of 2022 have a licence in this behalf from RBI. Judged by this touchstone, it is clear that the impugned Full Bench judgment [Mavilayi Service Coop. Bank Ltd. v. CIT, 2019 SCC OnLine Ker 1020] is wholly incorrect in its reading of Citizen Coop. Society [Citizen Coop. Society Ltd. v. CIT, (2017) 9 SCC 364] . Clearly, therefore, once Section 80- P(4) is out of harm's way, all the assessees in the present case are entitled to the benefit of the deduction contained in Section 80-P(2)(a)(i), notwithstanding that they may also be giving loans to their members which are not related to agriculture. Also, in case it is found that there are instances of loans being given to non-members, profits attributable to such loans obviously cannot be deducted. 27. In the case of CTO v. Bombay Machinery Store, (2020) 20 SCC 714, the Apex Court held as under:- 15. In Arjan Dass Gupta [Arjan Dass Gupta & Bros. v. CST, 1979 SCC OnLine Del 307 : (1980) 45 STC 52] principle akin to constructive delivery was expounded and we have quoted the relevant passage from that decision earlier in this judgment. In our opinion, however, such construction would not be proper to interpret the provisions of Section 3 of the 1956 Act. A legal fiction is created in the First Explanation to that section. That fiction is that the movement of goods, from one State to another shall terminate, where the good have been delivered to a carrier for transmission, at the time of when delivery is taken from such carrier. There is no concept of constructive delivery either express or implied in the said provision. On a plain - 50 - NC: 2024:KHC:38067 WP No. 6165 of 2022 reading of the statute, the movement of the goods, for the purposes of clause (b) of Section 3 of the 1956 Act would terminate only when delivery is taken, having regard to the First Explanation to that section. There is no scope of incorporating any further word to qualify the nature and scope of the expression “delivery” within the said section. The legislature has eschewed from giving the said word an expansive meaning. The High Court under the judgment [CTO v. Bombay Machinery Store, 2007 SCC OnLine Raj 879 : (2007) 3 RLR 625] which is assailed in Civil Appeal No. 2217 of 2011 rightly held that there is no place for any intendment in taxing statutes. We are of the view that the interpretation of the Division Bench of the Delhi High Court given in Arjan Dass Gupta [Arjan Dass Gupta & Bros. v. CST, 1979 SCC OnLine Del 307 : (1980) 45 STC 52] does not lay down correct position of law. In the event, the authorities felt any assessee or dealer was taking unintended benefit under the aforesaid provisions of the 1956 Act, then the proper course would be legislative amendment. The Tax Administration Authorities cannot give their own interpretation to legislative provisions on the basis of their own perception of trade practice. This administrative exercise, in effect, would result in supplying words to legislative provisions, as if to cure omissions of the legislature. 28. In the case of ACIT v. Gebilal Kanhaialal [2012] 348 ITR 561 (SC), the Apex Court held as under:- - 51 - NC: 2024:KHC:38067 WP No. 6165 of 2022 5. A limited question which arises for determination is, whether the assessee was entitled to immunity in terms of clause (2) of Explanation 5 to Section 271(1)(c) of the Act? 6. To answer the above question, it would be worthwhile to reproduce Explanation 5 read with clause (2) of Section 271(1)(c), which is quoted hereinbelow: “Explanation 5.—Where in the course of a search under Section 132, the assessee is found to be the owner of any money, bullion, jewellery or other valuable article or thing (hereafter in this Explanation referred to as assets) and the assessee claims that such assets have been acquired by him by utilising (wholly or in part) his income— (a) for any previous year which has ended before the date of the search, but the return of income for such year has not been furnished before the said date or, where such return has been furnished before the said date, such income has not been declared therein; or (b) for any previous year which is to end on or after the date of the search, then, notwithstanding that such income is declared by him in any return of income furnished on or after the date of the search, he shall, for the purposes of imposition of a penalty under clause (c) of sub-section (1) of this section, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income, unless— *** (2) he, in the course of the search, makes a statement under sub-section (4) of Section 132 that any money, bullion, - 52 - NC: 2024:KHC:38067 WP No. 6165 of 2022 jewellery or other valuable article or thing found in his possession or under his control, has been acquired out of his income which has not been disclosed so far in his return of income to be furnished before the expiry of time specified in clause (a) or clause (b) of sub-section (1) of Section 139, and also specifies in the statement the manner in which such income has been derived and pays the tax, together with interest, if any, in respect of such income.” (emphasis supplied) 7. Explanation 5 is a deeming provision. It provides that where, in the course of search under Section 132, the assessee is found to be the owner of unaccounted assets and the assessee claims that such assets have been acquired by him by utilising, wholly or partly, his income for any previous year which has ended before the date of search or which is to end on or after the date of search, then, in such a situation, notwithstanding that such income is declared by him in any return of income furnished on or after the date of search, he shall be deemed to have concealed the particulars of his income for the purposes of imposition of penalty under Section 271(1)(c). The only exceptions to such a deeming provision or to such a presumption of concealment are given in sub-clauses (1) and (2) of Explanation 5. In this case, we are concerned with interpretation of clause (2) of Explanation 5, which has been quoted above. 8. Three conditions have got to be satisfied by the assessee for claiming immunity from payment of penalty - 53 - NC: 2024:KHC:38067 WP No. 6165 of 2022 under clause (2) of Explanation 5 to Section 271(1)(c). The first condition was that the assessee must make a statement under Section 132(4) in the course of search stating that the unaccounted assets and incriminating documents found from his possession during the search have been acquired out of his income, which has not been disclosed in the return of income to be furnished before expiry of time specified in Section 139(1). Such statement was made by the karta during the search which concluded on 1-8-1987. It is not in dispute that Condition 1 was fulfilled. The second condition for availing of the immunity from penalty under Section 271(1)(c) was that the assessee should specify, in his statement under Section 132(4), the manner in which such income stood derived. Admittedly, the second condition, in the present case also stood satisfied. According to the Department, the assessee was not entitled to immunity under clause (2) as he did not satisfy the third condition for availing the benefit of waiver of penalty under Section 271(1)(c) as the assessee failed to file his return of income on 31-7-1987 and pay tax thereon particularly when the assessee conceded on 1-8-1987 that there was concealment of income. The third condition under clause (2) was that the assessee had to pay the tax together with interest, if any, in respect of such undisclosed income. However, no time-limit for payment of such tax stood prescribed under clause (2). The only requirement stipulated in the third condition was for the assessee to “pay tax together with interest”. In the present case, the third condition also stood fulfilled. The assessee has paid tax with interest up to the date of payment. The only condition which - 54 - NC: 2024:KHC:38067 WP No. 6165 of 2022 was required to be fulfilled for getting the immunity, after the search proceedings got over, was that the assessee had to pay the tax together with interest in respect of such undisclosed income up to the date of payment. Clause (2) did not prescribe the time-limit within which the assessee should pay tax on income disclosed in the statement under Section 132(4). 29. Under identical circumstances in relation to IPS 2002, the 1st respondent has granted approval in respect of industrial parks who had filed applications in IPS-1 under IPS 2002 after 31.03.2006 as held by this Court in the case of CIT v. Primal Projects (P) Ltd., - 2020 SCC OnLine Kar 4278, which reads as under:- 8. In exercise of powers conferred by clause (iii) of sub-S. (4) of S. 80-IA of the Act, the Central Government has framed the Scheme which is know as Industrial Park Scheme, 2002. Clause(2)(i) of the Scheme defines the expression ‘unit’ which means any separate and distinct entity for the purpose of one or more State or Central Tax law. Clause 6 of the Scheme deals with criteria for automatic approval. Clause 6(f) provides that no single unit referred to in Column No. 2 (of the table given in sub paragraph (b) of paragraph 6) shall occupy more than 50% of the allocable industrial area of an industrial model town or industrial park or growth centre. Clause 7 deals with non-automatic approval. There cannot be any dispute with the legal - 55 - NC: 2024:KHC:38067 WP No. 6165 of 2022 proposition that in order to claim the benefit of deduction u/S, 80-IA (4)(iii) of the Act, the conditions mentioned in the Scheme have to be complied with. 9. In the backdrop of aforesaid factual position, we may advert to the facts of the case. Paragraph 2 (i) of the Scheme defines the expression ‘unit’ to mean a separate and distinct entity for the purpose of one or more state or Central Tax Laws. Paragraph 6 of the Scheme deals with criteria for automatic approval. Para 6(f) provides that no single unit shall occupy more than 50% of the aliocable industrial area of an industrial park or growth center. The Assessing Officer in its order has held that in the relevant Assessment Year, the assessee did not have five industrial units, therefore, the assessee is not entitled to benefit of deduction under S. 80-IA(4)(iii) of the Act. The Commissioner of Income Tax (Appeals) has held that since, the assessee had carried out the substantial development of the work prior to obtaining approval, therefore, the assessee is not entitled to benefit of deduction under S. 80-IA(4)(iii) of the Act. It is pertinent to mention here that assessee has developed Information Technology Park on the basis of an agreement entered into by it and Karnataka Government Agency. The business was set up before or after the time prescribed in the statute. The tribunal has recorded a finding that even though, assessee has leased cut five/four floors to a particular tenant, but the tenants are carrying on their operations as independent units and their activities are functionally different. It has further been held that each floor is physically identified for all functional purposes. It has also - 56 - NC: 2024:KHC:38067 WP No. 6165 of 2022 been held that approval by Ministry of Commerce and Industry itself is a testimony that the assessee company has developed infrastructure facilities in the form of Multi storied structure to accommodate independent units to operate separate identities and individualities of the unit do not disappear only for the reason that the entire developed area has been leased out to a single company. The tribunal has therefore, applied the functional test and has held that each unit occupying a different floor is independent with independent facilities, instrumentation, power connection, door number and facility of functioning independently. It has been held that each unit is in a position to carrying on its activity without depending on other units. Therefore, a finding has been recorded in favour of the assessee that the assessee has successfully satisfied the functional test of an independent unit. 10. The tribunal has further held that assessee had applied through non automatic approval to get its campus approved for deduction under S. 80-IA(4)(iii) of the Act. It has further been held that once the projects are approved and the notifications are issued by the competent authorities, the approvals and the notifications would relate to the date of commencement of the activities and therefore, the benefit of deduction cannot be deprived to the assessee on the ground that he had carried out substantial part of the software projects prior to grant of approval. Thus, the assessee has been held entitled to the benefit of deduction under S. 80- IA(4)(iii) of the Act. - 57 - NC: 2024:KHC:38067 WP No. 6165 of 2022 11. The submissions raised in this appeal on behalf of the revenue that the assessee was required to develop 95% of the area for industrial use, but has failed to do so was never urged before the tribunal. It is pertinent to note that since, the assessee had applied for non automatic approval under paragraph 7 of the scheme, therefore, the requirement contained in paragraph 6(f), which requires a unit not to occupy more than 50% of the allocable area does not apply to the case of the assessee. Rule 18-C of the Rules does not have a bearing on the claim of the assessee with regard to eligibility of deduction under S. 80-IA(4)(iii) of the Act in the fact situation of the case. Even otherwise, whether or not the assessee has complied with the conditions laid down in the Scheme in order to enable it to claim deduction under S. 80- IA(4)(iii) of the Act is a pure question of fact. The findings recorded by the tribunal have not been assailed by the revenue on the ground that the same are perverse. The aforesaid findings of fact could not be demonstrated to be perverse. Therefore, interference of this court in exercise of powers under S. 260-A of the Act is warranted. [See : Syeda Rahimunnisa v. Malan Bi by L.RS., (2016) 10 SCC 315 and Principal Commissioner of Income Tax, Bangalore v. Softbrands India P. Ltd., (2018) 406 ITR 513] 12. In view of preceding analysis, the substantial questions of law framed by a bench of this court are answered against the revenue and in favour of the assessee. In the result, the appeal fails and is hereby dismissed. - 58 - NC: 2024:KHC:38067 WP No. 6165 of 2022 30. So also, PCIT v. Punit Chettiar alias Punit Balan - [2023] 457 ITR 32 (Bombay), it was held as under:- 6. As regards the objection of the Assessing Officer that fresh approval had to be taken, as required under the Industrial Park Scheme, 2002, was concerned, the assessee submitted that the park had become operational within the extended period of one year available up to September 21, 2006 and the assessee had already started offering income from the industrial park since the financial year 2006-07, relevant to the assessment year 2007- 08 onwards. 11. From the aforesaid facts it can be seen that the Assessing Officer had disallowed the claim of deduction under section 80-IA(4)(iii) of the Act primarily on the basis of the said letter dated March 4, 2009, from the Under Secretary, Ministry of Commerce and Industry, and the assessee's admission of the aforesaid fact in the statement recorded during the survey action under section 133A of the Act. The said letter had referred to Registration No. 63/S1A/IP/2006 dated May 12, 2006 and noted that, on the basis of the State Government's report dated April 23, 2008, the building in which the Industrial Park was located belonged to a partnership firm, i. e., M/s. S. Balan and Co, and not to an individual, and that the industrial park was not developed as a whole as only a part of the building was being developed and hence the same was not eligible under the Industrial Park Scheme, 2002. It can also be seen that the assessee had stated that the review application filed by him was pending with the Ministry of Commerce and - 59 - NC: 2024:KHC:38067 WP No. 6165 of 2022 Industry and subject to the same had withdrawn his claim for deduction. However, subsequently, the assessee filed an affidavit denying the said claim as being withdrawn as the matter was sub judice before the Empowered Committee. 13. Section 80-IA(4)(iii) thus provides for deduction of the profit derived by the assessee from development or operation of an industrial park notified by the Central Government. The eligibility period of development of such an industrial park was initially between April 1, 1997 to March 31, 2006. However the Finance Act, 2006 extended the period to March 31, 2011. The responsibility of verifying the authenticity of the assessee's claim vested in the concerned Ministry of the Central Government and the role of the Assessing Officer in that regard is limited. The industrial park Scheme, 2002, as notified from time to time by the Central Government, is a code in itself and lays down the criteria of eligibility, procedure of approval, conditions to be specified by the developer, etc., and once the concerned ministry grants the approval, it is incumbent on the part of the Assessing Officer to grant the deduction. The Assessing Officer may look into the other technical requirements of the provisions contained in section 80-IA, i. e., the deduction is to be computed if the eligible business, i. e., the industrial park, is the only source of income for the assessee, the assessee must submit an audit report and if the income from eligible business is arising from connected parties, then the Assessing Officer can rework the deduction. 16. Further, the Empowered Committee had reconsidered its earlier rejection and granted approval for - 60 - NC: 2024:KHC:38067 WP No. 6165 of 2022 the units on June 11, 2012 with reference to the date of the application, i. e., May 12, 2006. The assessee had also clarified the issue regarding the development of the industrial park by an individual and not by the partnership firm, which is also evident from the approval granted by the Ministry of Commerce and Industry. It is further seen from the record that the assessee applied for approval of the industrial park in Sai Trinity building under \"non-automatic\" approval route on December 8, 2005 and received the approval on December 9, 2005. The assessee had thereafter applied for reduction in number of units on April 26, 2006. The industrial park was commissioned in September 2006. The material on record indicates that, on the basis of an erroneous State Government report about the ownership of the property in which the industrial park was constituted, the Ministry of Commerce and Industry rejected the approval vide its letter dated March 4, 2009. It was the same letter which was found during the survey action and on the basis of which the claim for deduction made by the assessee was rejected by the Assessing Officer. However, prior to the search and survey action, the assessee had applied for a review of the rejection to the Empowered Committee on April 24, 2009. The Empowered Committee, after reconsideration of the earlier rejection, had granted approval for three units on June 11, 2002 to Mr. S. Balan, the assessee, which was effective from May 12, 2006. The objection of the Assessing Officer that the industrial park was being developed by the partnership firm is also not factually correct, in view of the explanation offered by the assessee and also the letter issued by the competent authority. Once the Central - 61 - NC: 2024:KHC:38067 WP No. 6165 of 2022 Government grants the approval, it is incumbent on the part of the Assessing Officer to grant the claim of deduction. 31. It is therefore clear that when in the above cases approvals have been granted in respect of applications made after 31.03.2006, a wholly contrary stand could not have been taken in the case of the petitioner. 32. In this context, it would be profitable to refer to the judgment of Chittharanjan A. Dasannacharya vs. CIT, (2020) 429 ITR 570, wherein this Court held as under:- 9. It is pertinent to mention here that the Revenue in case of several other assessees have accepted the fact that on cashless exercise of option, there arises a income in the nature of capital gains. However, in the case of the assessee the aforesaid stand was not taken. It is also pertinent to mention here that nothing was brought to our notice that the view taken by the Tribunal in the following cases has been challenged by the Revenue. (i) Shri Kamlesh Bahedia v. Asst. CIT [2014] SCC Online ITAT 3857, (ii) N. R. Ravikrishnan v. Asst. CIT [2018] SCC Online ITAT 20272 (iii) Dr. Muthian Sivathanu v. Asst. CIT I. T. A. No. 553/CHNY/2018 dated October 24, 2018. - 62 - NC: 2024:KHC:38067 WP No. 6165 of 2022 10. Therefore, in view of the law laid down by the Supreme Court in Berger paints (supra), it was not open for the Revenue to take one stand in the case of the assessee and to challenge the correctness of the same in the case of other assessees. For this reason also, the Revenue cannot be permitted to take a different view in this appeal. In view of preceding analysis, the substantial questions of law framed in this appeal are answered in favour of the assessee and against the Revenue. In the result, the order passed by the Income-tax Appellate Tribunal dated October 31, 2013 is hereby quashed. In the result, the appeal is allowed. 33. So also the Delhi High Court in Lavish Apartment (P) Ltd. vs. ACIT, [2018] 405 ITR 165 (Del), held as under:- 24. We may refer to only two more judgments as they are judgments of this court. The first is of a Division Bench in the case of CIT v. R. Dalmia (1974) 96 ITR 463 (Delhi). There the brought forward business loss was sought to be set off against the dividend income earned by the assessee in the subsequent year. It was held by the High Court that since the dividend income was derived from the shares held as stock-in-trade, the brought forward losses could be set off against the same notwithstanding that the Act required that the dividend income should be assessed under the head \"Income from other sources\". It is interesting to note that before the court the Revenue abandoned its contention that the brought forward loss cannot be set off against the - 63 - NC: 2024:KHC:38067 WP No. 6165 of 2022 dividend income, realising that the shares were held as stock-in-trade. The only contention advanced by the Revenue in that case was that there were no sufficient facts to justify the conclusion of the Tribunal that the shares were held as stock-in-trade. The proposition that the brought forward loss could be set off against the dividend income of the subsequent year if the dividend was derived from the shares held as stock-in-trade itself was not questioned as it was sought to be questioned before us on behalf of the Revenue. It is expected of the Revenue to take consistent positions on matters involving legal principles, particularly before different High Courts since the Income-tax Act is an all India statute and the Department of Income-tax being one for the entire country it cannot possibly adopt different or inconsistent legal positions before the courts or the Tribunals. 34. So also in Milestone Real Estate Fund vs. ACIT, [2019] 415 ITR 467 (Bom), the Bombay High Court held as under:- 14. Before parting, we have to express our dismay at the conduct of the Officers of the Revenue in this matter. We pride ourselves as a State which believes in rule of law. Therefore, the least that is expected of the Officers of the State is to apply the law equally to all and not be over zealous in seeking to collect the revenue ignoring the statutory provisions as well as the binding decisions of this court. The action of respondent Nos. 1 and 2 as adverted to in para 14 hereinabove clearly indicates that a separate set of rules was being applied by them in the case of the - 64 - NC: 2024:KHC:38067 WP No. 6165 of 2022 petitioner. Equal protection of law which means equal application of law has been scarified in this case by the Revenue. It appears that the petitioner is being singled out for this unfair treatment. The desire to collect more revenue cannot be at the expense of rule of law. In the above view, we direct the respondent- Revenue to pay cost of Rs. 50,000 (rupees fifty thousand only) to the petitioner for the unnecessary harassment, it had to undergo at the hands of the Revenue. This amount is to be paid by the respondent- Revenue to the petitioner within four weeks from today. 35. Similarly, the Kerala High Court in CIT v. N. P. Mathew- [2006] 208 ITR 44 (Ker), held as under:- 10. Though the rule of strict compliance is applicable in taxation law, the assessee claiming exemption has to establish the same as held by the apex court in CIT v. Ramakrishna Deo [1959] 35 ITR 312 ; AIR 1959 SC 239, pages 241 and 242. But, exemption made with a beneficial object has to be liberally construed. (see : CIT v. U. P. Co- operative Federation Ltd. [1989] 176 ITR 435 ; AIR 1989 SC 915, at page 919 and Tata Oil Mills Co. Ltd. v. CCE [1991] 82 STC 225 ; AIR 1990 SC 27, at page 30). An exemption notification cannot be denied full effect by any circuitous process of interpretation. (Swadeshi Polytex Ltd. v. CCE, AIR 1990 SC 301 at page 306. The apex court in Collector of Customs v. Bharat Heavy Electricals Ltd. [1992] 61 ELT 332 (SC) held that a reasonable construction which gives effect to true intent and purpose of the provisions has to be adopted without violating the language of the notification. It - 65 - NC: 2024:KHC:38067 WP No. 6165 of 2022 is true that the question whether exemption is applicable shall be construed strictly and once the doubt about the applicability is lifted, exemption shall be given a wider and liberal construction as held by the apex court in Union of India v. Wood Papers Ltd. [1991] 83 STC 251 ; AIR 1991 SC 2049. As far as section 115H is concerned, it was enacted with the beneficial object of earning and preserving foreign exchange and there is no room for doubt that the subject- matter is clearly covered by section 115H. When words are clear and directly conveying the meaning, there is no need for any interpreting process as held by the apex court in Mangalore Chemicals and Fertilisers Ltd. v. Deputy CCT [1991] 83 STC 234 ; [1992] Suppl. 1 SCC 21. There is no other view possible than in favour of the assessee. Further, we also notice that the Authority for Advance Rulings, considered the same point and it was answered like this as can be seen from the decision reported in [1997] 223 ITR 379 (Advance Ruling Application No. P-5 of 1995) (page 392) : “Question No. 4 : (a) No income-tax will be payable in India on the interest from the fixed deposits with the State Bank of India and the Indian Bank [items (a), (b) and (c) of paragraph 7 in annexure ‘I’] for any assessment year if, in respect of the relevant assessment year, the conditions set out in section 10(4)(ii) of the Income-tax Act, 1961, are fulfilled. However, even if the exemption is not available under section 10(4)(ii), the applicant will be liable to tax on the gross interest income at the concessional rate of 20 per cent. under sections 115C and 115D read with sections 115E and 115H, provided the - 66 - NC: 2024:KHC:38067 WP No. 6165 of 2022 applicant fulfils the procedural requirements of section 115H.” 11. A contention was raised by senior standing counsel that to apply section 115H, the assessee should be a non- resident and should have been assessed as such in the previous year. The above view is also not tenable because section 115H is applicable when a non-resident in a previous year becomes a resident and liable for taxation. We also note that with regard to another assessee, the same view was taken by the Tribunal and the Department accepted the same for the previous years in the assessee’s case also. Those orders were allowed to become final. The Department should be consistent at least in respect of the same assessee and it cannot also differentiate between various assessees as held by the three-member Bench of the apex court in Union of India v. Kaumudini Narayan Dalal [2001] 249 ITR 219. In this case, we are in full agreement with the views of the Tribunal and therefore the question of law referred are to be answered in favour of the assessee and the appeal is dismissed. 36. It is therefore clear that the 1st respondent was not justified in denying the petitioner the benefits under IPS 2002 on the ground that the application is filed after 31.03.2006. 37. The 1st respondent has rejected the application of the petitioner in Form IPS-1 on the ground that as per the application, the expected date of commencement of the Industrial park was - 67 - NC: 2024:KHC:38067 WP No. 6165 of 2022 29.02.2007, i.e. 11 months after the expiry of IPS 2002 on 31.03.2006. In this context, it is relevant to state that the IPS 2002 does not prescribe/contemplate a cut-off date for commencement of industrial park. Clause No.3 of IPS 2002 provides that the scheme shall be applicable for any undertaking which develops, develops and operates or maintains and operates of an industrial park for the period beginning on the 1st day of April, 1997 and ending on the 31st day of March, 2006 and the emphasis is made on the beginning of development activity of industrial park during period from 01.04.1997 to 31.03.2006. 38. Section 80-IA(4)(iii) deals with any undertaking which develops, develops and operates or maintains and operates an industrial park as notified by the Central Government in accordance with the scheme framed and notified by that Government for the period beginning on the 1st day of April, 1997 and ending on the 31st day of March, 2006. 39. The words 'develops, develops and operates or maintains and operates' which indicate the course of carrying out some activity and not the completion of activity; further, the word 'develops' is in the company of words 'operates or maintains' where - 68 - NC: 2024:KHC:38067 WP No. 6165 of 2022 the latter words indicate continuation of certain activity and not completion; it follows there from that if the intention were to insist on completion of development, nothing would have prevented for the Central Government to have used the appropriate wording clearly indicating its intention; further, there is a difference between the word 'develops' and the word 'developed'; while the former word indicates the course of carrying out some activity, the latter indicates a completed state of affairs. 40. The Gujarat High Court in the case of CIT v. Radhe Developers - (2012) 341 ITR 403, held as under:- 31. Neither the provisions of section 80-IB nor any other provisions contained in other related statutes were brought to our notice to demonstrate that ownership of the land would be a condition precedent for developing the housing project. It was perhaps not even the case of the Revenue that under the other laws governing construction in urban and semi urban areas, there was any such restriction. It is, however, the thrust of the argument of the Revenue that in order to receive benefit under section 80-IB(10) of the Act, such requirement must be read into the statute. We cannot accept such a contention. Firstly, as already noted, there is nothing under section 80-IB(10) of the Act requiring that ownership of the land must vest in the developer to be able to qualify for such deduction. Secondly, term \"developer\" has been understood in common parlance as well as in legal - 69 - NC: 2024:KHC:38067 WP No. 6165 of 2022 sense carrying a much wider connotation. The Tribunal itself in the impugned order has traced different meanings of the term \"developer\" explained in different dictionaries, which read as under: \"a. The Webster's Encyclopedia unabridged of the English language gives the following meaning of the term developer as: 1. One who or that which develops ; 2. A person who invests in and develops the urban or suburban potentialities of real estate. b. Oxford Advanced Learners Dictionary of Current English, Fourth Indian Edition, gives meaning of the term 'developer' as persons or company that develops land. c. Random House Dictionary of the English Language, the following can be found. Develop a. To bring out the capabilities or possibilities of ; bring to a more advanced or effective state. b. To cause to grow or expand. Developer a. The act or process of developing ; progress. b. Synonym : Expansion, elaboration, growth, evolution, unfolding, maturing, maturation. d. Webster Dictionary, the following definitions emerge: a. To realize the potential of ; b. To aid in the growth of strength, develop the biceps, c. To bring into being : make active (develop a business) - 70 - NC: 2024:KHC:38067 WP No. 6165 of 2022 d. To convert (a tract of land) for specific purpose, as by building extensively. e. Law lexicon Dictionary : The following definitions could be seen. Development a. To act, process or result of development or growing or causing to grow ; the state of being developed. b. Happening.\" 32. Section 80-IB(10) of the Act thus provides for deductions to an undertaking engaged in the business of developing and constructing housing projects under certain circumstances noted above. It does not provide that the land must be owned by the assessee seeking such deductions. 33. It is well settled that while interpreting the statute, particularly, the taxing statute, nothing can be read into the provisions which has not been provided by the Legislature. The condition which is not made part of section 80-IB(10) of the Act, namely, that of owning the land, which the assessee develops, cannot be supplied by any purported legislative intent. 41. It is therefore clear that the term ‘develop’ would indicate progress of activity of development and not the completion thereof. It is also significant to note that both in Section 80-IA(4)(iii) and IPS 2002, the word “develops” is used and not “developed”, - 71 - NC: 2024:KHC:38067 WP No. 6165 of 2022 which would indicate that there is no requirement of completion of development before 31.03.2006. 42. While interpreting relevant terms in a taxing statute in the case of CWT vs Giridhar G. Yadalam - (2010) 325 ITR 233 (Kar), this Court held as under: 13. State of Bombay v. Sardar Venkat Rao Krishna Rao Gujar, AIR 1966 SC 991 is a case dealing with Madhya Pradesh Abolition of Proprietary Rights Act. The apex court in paragraph 11 noticed as to whether “ottas” and “chabutras” can be regarded as buildings. The court ruled that the word “buildings” should therefore be given its literal meaning as something, which is built. Sri Bindra, learned counsel, in the said case contended that for a structure to be regarded as building it should have walls and a roof and in support of this contention he relied upon the decision in Moir v. Williams [1892] 1 QB 264. In that case, Lord Esher has observed that the term “generally” means all enclosures of brick and stone covered by a roof. But, he has also made it clear that the meaning to be given to that word must depend upon the enactment in which the word is used and the context in which it is used. The Supreme Court ultimately ruled that these observations must be considered in the context of the Act which was being construed and in the context in which they were made. That case is also of no assistance to the assessee in the light of clear words available in the case on hand. - 72 - NC: 2024:KHC:38067 WP No. 6165 of 2022 14. This court cannot forget that Parliament in its wisdom has chosen to provide an exemption only under certain circumstances. The court cannot extend the exemption without any legal compulsion in terms of the Act Since in our view, the wording that the urban land would mean a land on which complete building stands, such lands alone would qualify for exemption. That conclusion is inevitable and we accept the appeal of the Revenue. 43. The aforesaid decision has been upheld by the Apex Court in Giridhar G. Yadalam v. - CWT (2015) 17 SCC 664, wherein it is held as under: 16. We have already pointed out that on the plain language of the provision in question, the benefit of the said clause would be applicable only in respect of the building “which has been constructed”. The expression “has been constructed” obviously cannot include within its sweep a building which is not fully constructed or in the process of construction. The opening words of clause (ii) also become important in this behalf, where it is stated that “the land occupied by any building”. The land cannot be treated to be occupied by a building where it is still under construction. If the contention of Mr Jain is accepted, an assessee would become entitled to the benefit of the said clause, at that very moment, the commencement of construction even with construction the moment one brick is laid. It would be too far- fetched, in such a situation, to say that the land stands occupied by a building that has been constructed thereon. Even Mr Jain was candid in accepting that when the - 73 - NC: 2024:KHC:38067 WP No. 6165 of 2022 construction of building is still going on and is not completed, literally speaking, it cannot be said that the building “has been constructed”. It is for this reason that he wanted us to give the benefit of this provision even in such cases by reading the expression to mean the same as “is being constructed”. His submission was that the moment construction starts the urban land is put to “productive use” and that entitles the land from exemption of wealth tax. This argument of giving so-called purposive interpretation has to be rejected for more than one reasons. These are: (i) In taxing statute, it is the plain language of the provision that has to be preferred where language is plain and is capable of one definite meaning. (ii) Strict interpretation to the exemption provision is to be accorded, which is the case at hand. (iii) The purposive interpretation can be given only when there is some ambiguity in the language of the statutory provision or it leads to absurd results. We do not find it to be so in the present case. 17. No doubt, the purpose and objective of introducing Section 2(ea) in the Act was to stimulate productive assets. However, the event when such a provision is to be attracted is also mentioned in Explanation 1(b) itself carving out those situations when the land is not to be treated as urban land. The legislature in its wisdom conferred the benefit of exemption in respect of urban vacant land only when the building is fully constructed and not when the construction activity has merely started. On the contrary, if the argument - 74 - NC: 2024:KHC:38067 WP No. 6165 of 2022 of the assessee is accepted, that would lead to absurd results in certain cases. For example, what would be the position if the construction of the building starts but the said construction is abandoned midway? If we accept the argument of the assessee, in such a case, the assessee would be given the exemption from payment of wealth tax in the initial years and the same benefit would be denied in the year when it is found that construction was abandoned and, therefore, not complete. It would result in granting of benefit in the previous year(s), though that was not admissible. Such a situation cannot be countenanced. Presumably, because of this reason, the legislature wanted to treat only that land to be excluded from the definition of “urban land” at the stage when the building has been fully constructed on the said land. 18. We do not agree with the submission of Mr Jain that the situation when building is fully constructed has been covered by Section 2(ea)(v) read with Explanation 1(b) as it would fall under Section 2(ea)(i). We have already reproduced the aforesaid Section and find that it deals with altogether different situations. As pointed out above, Explanation (1) thereof excludes certain categories of “urban land” and we are concerned herewith clause (ii) of this Explanation. By the 1992 Amendment, Section 2(ea) was added which contains the definition of “asset”. Clause (v) thereof includes urban land. Thus, urban land is to be included as an “asset” for the purpose of giving extended meaning to it. Urban land is defined in Explanation 1 clause (b) to Section 2(ea). - 75 - NC: 2024:KHC:38067 WP No. 6165 of 2022 44. Similarly, in Harrhajan Singh v. State of Punjab - 1971 SCC OnLine P&H 298, the Punjab & Haryana High Court held as under: (4) According to the language of the section whenever a person seeks election to a committee on or after the 10th of September, 1969, he would be ineligible if he fulfils the above conditions neither of which lays down that he must be serving on the committee on that date before the conditions would come into play. For the proposition to the contrary propounded by learned counsel for the contesting respondents reliance was placed on the expression “has served” occurring in the sub-section. His contention was that the expression meant “has served and is still serving”. This contention is based on the erroneous assumption that the expression is a present perfect continuous tense of the verb “to serve”. The correct position is that the expression is the present perfect and not the present perfect continuous tense of the verb “to serve” and means that the act of serving has already been completed or it was done and may be (but not necessarily is) continuing. The present perfect continuous tense of the verb “to serve” would be “has been serving” and that is not the expression which the legislature has used (although even if such an expression had been employed by the legislature, it is difficult to see how it would make the section mean that the conditions of ineligibility must exist on the date of commencement of the amending Act). - 76 - NC: 2024:KHC:38067 WP No. 6165 of 2022 45. A perusal of Column (X) of the application in Form IPS-1 under IPS 2002, will indicate that the same also does not require the expected/actual date of commencement to be on or before 31.03.2006; further, in entire Form IPS-1, there is no condition that the expected date of commencement shall not be later than 31.03.2006 as alleged by the respondents; so also, the bracketed text to Column (X) of the application in Form IPS-1 under IPS 2002 defines the meaning of commencement of industrial park for the purpose of Column (X) which as such does not put any cut-off date. It is therefore clear that IPS 2002 does not require the date of commencement of operations of industrial park to be on or before 31.03.2006 and consequently, the impugned order deserves to be set aside. 46. A perusal of paragraph - 4(1) of the IPS 2008, which provides a condition that the date of commencement of the Industrial Park should be on or after 01.04.2006 and not later than 31.03.2009; paragraph-2(f) of IPS 2008 defines “date of commencement” to mean the date of obtaining the completion certificate or occupation certificate, as the case may be, from the relevant local authority, certifying thereby that all the required development activities for the project have been completed; - 77 - NC: 2024:KHC:38067 WP No. 6165 of 2022 similarly, Form IPS-1 under IPS 2008 clearly indicates that the Industrial Park must commence operations between 01.04.2006 and 31.03.2009; further, in paragraph - 5(1) of IPS 2008 under general conditions, the language used is “The industrial park shall be construed as developed on the date of commencement”. It is therefore clear that while IPS 2008 provides a cut off date, the same being conspicuously absent and missing in IPS 2002, the 1st respondent clearly fell in error in rejecting the application of the petitioner on the ground that the development of the park had not been completed and that the park had not commenced as on 31.03.2006, which is clearly contrary to IPS 2002 and as such, the impugned order deserves to be set aside on this ground also. 47. In the case of Silver Land Developers Pvt Ltd vs Empowered Committee - [(2021) 343 ITR 439 (Bom), the Bombay High Court held that IPS 2002 does not require that Industrial Park had to be developed on or before 31.03.2006. The relevant paragraphs read as under: 24. We find merit in the contention of the petitioners that if the position which has been adopted by the Empowered Committee were to be accepted, that would result in virtually defeating the salutary public purpose which underlies section 80-IA(4)(iii). Notice would have to be taken - 78 - NC: 2024:KHC:38067 WP No. 6165 of 2022 of the fact that infrastructural projects require a considerable amount of investment and a time lag is involved in the completion of the project. The view of the Empowered Committee is that paragraph 9 of the Scheme would apply to a delay in a project beyond one year but that the delayed date of completion should not in any event fall beyond March 31, 2006. If this were to be accepted as the correct interpretation, that will denude the benefit of section 80-IA to project where approvals were granted a few months before March 31, 2006, and the completion date 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 80-IA(4)(iii). Paragraph 9 of the Scheme would in fact indicate an intent not to deprive the benefit of section 80-IA(4)(iii) save and except that if the commencement of the project is delayed beyond one year a fresh approval would have to be obtained to get the benefits under the Act. The court cannot also ignore the fact that the intent of the Legislature and its executive is not to 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 July 24, 2006, which was several months after March 31 2006, when the Scheme of 2002 was to expire. 26. The application filed by the petitioners for a modification of the number of approved units was not allowed purely on the ground that the development of the industrial park was completed beyond March 31, 2006. For - 79 - NC: 2024:KHC:38067 WP No. 6165 of 2022 the reasons already indicated by us in the earlier part of this judgment, we have come to the 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 March 31, 2006. In holding thus, the Empowered Committee disabled itself from exercising the power and jurisdiction which it had under paragraph 9(1) of the Scheme. 27. The attention of the court has also been drawn to the fact that in fifty cases, approvals have been granted under the Scheme of 2002 beyond March 31, 2006, and as a matter of fact as late as in April, 2007. Learned counsel on behalf of the Revenue has submitted that the Department would seek to revoke those permissions which have been granted in other cases. Be that as it may, for the reasons indicated earlier we have come to the conclusion that the basis on which the Empowered Committee has rejected the application filed by the petitioners is contrary to law and would have to be set aside. 48. A similar view has been taken by the Delhi High Court in the case of Finest Promoters (P.) Ltd. v. UoI - [2018] 96 taxmann.com 352 (Delhi) as under: 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 - 80 - NC: 2024:KHC:38067 WP No. 6165 of 2022 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 Silver Land (supra) of the Bombay High Court, that reason cannot survive. 49. This Court in the case of Primal Projects’s case (supra), held that the 1st respondent had granted approval in respect of industrial parks under IPS 2002 which have commenced operations after 31.03.2006. In the instant case, the petitioner began to develop the Industrial Park prior to 01.04.2006 i.e., on 09.02.2004 by entering into Joint Development Agreement for the development of Industrial Park and the acts, deeds, things, events that transpired subsequently as borne out from the material on record would clearly indicate that the petitioner commenced the development of the Industrial Park before 31.03.2006 and that the Petitioner invested about Rs.53.50 crores over a period of 3 years commencing from 2005 till 2008 in respect of its Industrial Park “SALARPURIA TOUCH STONE”. - 81 - NC: 2024:KHC:38067 WP No. 6165 of 2022 50. It is therefore clear that the petitioner having commenced the development of the Industrial Park before 31.03.2006 clearly satisfied the criteria laid down in Section 80- IA(4)(iii) read with Para-3 of IPS 2002 and consequently, the 1st respondent is not justified in denying the petitioner, the benefits under IPS 2002 on the ground that the expected/actual date of commencement of operations was after 31.03.2006 and as such, the impugned order deserves to be quashed on this ground also. 51. The 1st respondent has contended that once IPS 2008 came into force on 08.01.2008, IPS 2002 ceased to exist and both schemes being mutually exclusive cannot co-exist, as a result of which, the petitioner was not entitled to the benefit of IPS 2002 and its application was correctly rejected by the 1st respondent. In this context, it is relevant to state that IPS 2002 does not contain any clause regarding period of operation of the scheme in contradistinction with paragraph-3 of IPS 1999, which reads as under: “3. Period of operation of the scheme.- The Scheme shall be in operation for the period beginning on the 1st day of April, 1997, and ending on the 31st day of March, - 82 - NC: 2024:KHC:38067 WP No. 6165 of 2022 2002, as specified in Cl. (iii) of sub-section (4) of Sec 80-IA of the Act.” 52. Paragraph-3 of IPS 1999 supra, expressly provided for period of operation of the Scheme and put an end to the said Scheme with effect from 31.03.2002; however, no similar period of operation has been provided in IPS 2002; further, the fact that IPS 1999 ended with effect from 31.03.2002 is clear from paragraph- 9(1) of IPS 2002, which provided that the condition provided in the said paragraph is also applicable to existing approvals under the IPS which envisages commissioning of the parks latest by 31.03.2002. This would indicate that the operation of IPS 1999 ended on 31.03.2002 and by the said date the industrial parks approved under the said Scheme were required to be commissioned and therefore, there was a need for transitioning the case from IPS 1999 into IPS 2002 in paragraph- 9(1) of IPS 2002. 53. It is relevant to state that IPS 2008 does not make reference to IPS 2002 and does not provide for a transition unlike paragraph- 9(1) of IPS 2002 which made a reference to IPS 1999, thereby indicating indicate that the operation of IPS 2002 did not end with effect from 31.03.2006; in fact, in the entire IPS 2002, - 83 - NC: 2024:KHC:38067 WP No. 6165 of 2022 there is no provision similar to paragraph - 3 of IPS 1999, providing for a period of operation of the scheme and IPS 2002 as provided in paragraph-3 continued to apply to all undertakings that began development activity during the window from 01.04.1997 to 31.03.2006 leading to the sole conclusion that if the development begins before 01.04.2006, IPS 2002 applies and if the development begins after 01.04.2006, IPS 2008 applies and consequently, both IPS 2002 and IPS 2008 co-exist and either from 01.04.2006 or from 08.01.2008 when IPS 2008 came into force, IPS 2002 did not come to an end and that the same is not mutually exclusive from IPS 2008 and consequently, this contention of the 1st respondent cannot be accepted. 54. As stated supra, IPS 2002 does not define the date of commencement unlike provided in IPS 2008 and the petitioner in its application in Form IPS-1 has recorded the expected/cctual date of commencement as 28.02.2007. Paragraph- 9(1) of IPS 2002 states that in case the commencing of the industrial park gets delayed for more than 1 year from the date indicated in the application, fresh approval may have to be obtained to get the benefits under the Act. In the instant case, the expected date of - 84 - NC: 2024:KHC:38067 WP No. 6165 of 2022 commencement as stated in the application is 28.02.2007 and as per paragraph-9(1) of IPS 2002, the petitioner was entitled to a grace period of 12 months from the expected date of commencement mentioned in the Form IPS-1 i.e., up to 28.02.2008. 55. The material on record indicates that on 11.02.2007, petitioner addressed a letter to the Joint Director (Industrial Development) stating that all the civil works were completed by the end of February 2007; petitioner also wrote a letter dated 16.11.2009 to the 1st respondent stating that development of the project was completed on 02.07.2007 in all respects. As stated earlier, petitioner was entitled to a grace period of 12 months from the expected date of commencement mentioned in Form IPS-1. i.e., up to 28.02.2008 and the development of the project having been completed on 02.07.2007, the same was within the grace period of 12 months as provided in paragraph- 9(1) of IPS 2002, the petitioner was entitled to the benefits of IPS 2002 and this is yet another circumstance that would vitiate the impugned order which deserves to be set aside. - 85 - NC: 2024:KHC:38067 WP No. 6165 of 2022 56. It is the case of the respondents that the case of the petitioner is covered under IPS 2008 and not under IPS 2002; in this context, a perusal of IPS 2008 read with Rule 18C [as amended by Income Tax (First Amendment) Rules, 2008], makes it clear that the IPS 2008 is applicable to the undertakings which have begun to develop an industrial park on or after 01.04.2006; in the instant case, petitioner began to develop the Industrial Park prior to 01.04.2006, i.e., on 09.02.2004 by entering into Joint Development Agreement for the development of Industrial Park, IPS 2008 did not apply to the petitioner leading to the inescapable conclusion that the petitioner was covered by IPS 2002, especially when that the commencement of the industrial park was never the criteria under IPS 2002 unlike in the case of IPS 2008. 57. It is a matter of record that the petitioner made an application under non-automatic route under IPS 2002 whereas such non-automatic route is not available at all under IPS 2008; so also, petitioner's industrial park houses had only three units, which does not qualify under IPS 2008 under any circumstances, as paragraph - 4(3) of IPS 2008 requires location of minimum 30 industrial units in the industrial park; as stated supra, Section 80- - 86 - NC: 2024:KHC:38067 WP No. 6165 of 2022 IA(4)(iii) provides a window from 01.04.1997 to 31.03.2011 and the interplay between IPS 2002 and IPS 2008 cannot result in a denial of benefit even when both the beginning of development work and commencement of the park have taken place during the window provided by the statute. Under these circumstances, IPS 2002 cannot be construed in a manner so as to run contrary to the statute resulting in denial of benefit to the Petitioner. 58. In this regard, it would be apposite to refer to the judgment of the Apex Court in the case of State of Bihar vs Suprabhat Steel Ltd - (1999) 1 SCC 31, wherein it was held as under: 7. Coming to the second question, namely, the issuance of notification by the State Government in exercise of power under Section 7 of the Bihar Finance Act, it is true that issuance of such notifications entitles the industrial units to avail of the incentives and benefits declared by the State Government in its own industrial incentive policy. But in exercise of such power, it would not be permissible for the State Government to deny any benefit which is otherwise available to an industrial unit under the incentive policy itself. The industrial incentive policy is issued by the State Government after such policy is approved by the Cabinet itself. The issuance of the notification under Section 7 of the Bihar Finance Act is by the State Government in the Finance - 87 - NC: 2024:KHC:38067 WP No. 6165 of 2022 Department which notification is issued to carry out the objectives and the policy decisions taken in the industrial policy itself. In this view of the matter, any notification issued by government order in exercise of power under Section 7 of the Bihar Finance Act, if is found to be repugnant to the industrial policy declared in a government resolution, then the said notification must be held to be bad to that extent. In the case in hand, the notification issued by the State Government on 4-4-1994 has been examined by the High Court and has been found, rightly, to be contrary to the Industrial Incentive Policy, more particularly, the policy engrafted in clause 10.4(i)(b). Consequently, the High Court was fully justified in striking down that part of the notification which is repugnant to sub-clause (b) of clause 10.4(i) and we do not find any error committed by the High Court in striking down the said notification. We are not persuaded to accept the contention of Mr Dwivedi that it would be open for the Government to issue a notification in exercise of power under Section 7 of the Bihar Finance Act, which may override the incentive policy itself. In our considered opinion, the expression “such conditions and restrictions as it may impose” in sub-section (3) of Section 7 of the Bihar Finance Act will not authorise the State Government to negate the incentives and benefits which any industrial unit would be otherwise entitled to under the general policy resolution itself. In this view of the matter, we see no illegality with the impugned judgment of the High Court in striking down a part of the notification dated 4-4-1994. - 88 - NC: 2024:KHC:38067 WP No. 6165 of 2022 59. So also, in the case of State of Jharkhand v. Brahmputra Metallics Ltd., - (2023) 10 SCC 634 (2023) 10 SCC 634, it was held as under; H.1. A State in breach of policy commitments 20. The Industrial Policy, 2012 refers to the earlier Industrial Policy, which was formulated in 2001 after the formation of the State of Jharkhand. The policy notes that “considerable progress in industrialisation has been achieved during the policy period”. Yet, according to Clause 1.8, there is a need to “boost economic activities to sustain the current level of growth and achieve even better pace of development”. Clause 1.9 takes notice of the fact that “there has been large scale change in (the) industrialisation environment (sic) due to economic liberalisation, privatisation and globalisation”. The policy document states in Clause 1.12 that it “aims at creating (an) industry-friendly environment for maximising investment”: “1.12. The present policy aims at creating industry- friendly environment for maximising investment especially in mineral and natural resource based industries, MSMEs, infrastructure development and rehabilitation of viable sick units. The objective here is to maximise the value addition to State's natural resources by setting up industries across the State, generating revenue and creating employment.” Clause 1.13 stipulates that the policy was drafted after intensive interaction with stakeholders and to accommodate their views. It was expected that the policy would, upon implementation, facilitate industrialisation of the State, generate employment and add to its overall growth. - 89 - NC: 2024:KHC:38067 WP No. 6165 of 2022 21. As an integral component of the policy, Clause 32.10 envisages the grant of an exemption from the payment of 50% of the electricity duty for a period of five years both for new and existing industrial units setting up captive power plants for self-consumption or captive use. The period of five years was to be reckoned from the date of the commissioning of the plant. Under Clause 35.7(b), the entitlement would ensue from the financial year following the date of production. The State Government was cognizant of the need to implement the policy immediately to secure the benefit to eligible units over the entire term of five years. Recognising this need, Clause 38(b) envisaged that notifications by its diverse departments to enforce the terms of the policy would be issued within a period of one month. 22. The alacrity expected by the Industrial Policy, 2012 of the State of Jharkhand did not find a resonance in its administrative apparatus. The High Court has justifiably referred to this as a case of bureaucratic lethargy. As a matter of first principle, there can be no gainsaying the fact that when a statute, such as the Bihar Act, 1948, empowers the State to grant an exemption from its provisions, the State has the discretion to determine the date from which and the period over which the exemption will operate. An individual or entity cannot compel the State to issue a notification providing for an exemption or to insist upon the terms on which the Government does so. Whether an exemption should be issued and if so, the terms for the exemption, have to be determined by the State. But this case does not rest on that principle nor did the claim of the respondent require the - 90 - NC: 2024:KHC:38067 WP No. 6165 of 2022 High Court to make a departure from it. The Industrial Policy, 2012 contained a representation that a rebate/deduction would be granted. It held out a representation that a notification would be issued in a month. These were solemn commitments made by the State of Jharkhand. What remained was their implementation by issuing a notification, which was to be done within one month. The State Government evidently intended to implement and act in pursuance of its commitment. For, ultimately, it did issue a notification. But it did so on 8-1-2015 after a period of a month envisaged under the Industrial Policy, 2012 had dragged on for nearly three years. 23. It is time for the State Government to take notice of the observations of the High Court in regard to administrative lethargy. If the object of formulating the industrial policy is to encourage investment, employment and growth, the administrative lethargy of the State apparatus is clearly a factor which will discourage entrepreneurship. The policy document held out a solemn representation. It contemplated the grant of a rebate/deduction from the payment of electricity duty not only to new units but to existing units as well who had or would set up captive power plants. The State, in the present case, held out inter alia a solemn representation in terms of Clauses 32.10 and 35.7(b) of the entitlement of the exemption for a period of five years from the date of production. Besides this, it also contemplated in Clause 38(b) that a follow-up exemption notification would be issued within one month. That period of one month stretched on interminably with the result that the - 91 - NC: 2024:KHC:38067 WP No. 6165 of 2022 purpose and object of granting the exemption would virtually stand defeated. The net result was that when belatedly, the State Government issued a notification under Section 9 of the Bihar Act, 1948 on 8-1-2015, it was prospective. As a consequence, by the time that the exemption notification was issued, a large part of the term for which the exemption was to operate in terms of the Industrial Policy, 2012 had come to an end. 24. The State Government was evidently inclined to grant the exemption. This is not a case where due to an overarching requirement of public interest, the State Government decided to override the representation which was contained in the Industrial Policy, 2012. To the contrary, it sought to implement the representation albeit in fits and starts. Firstly, there was a delay of three years in the issuance of the notification. Secondly, by making the notification prospective, it deprived units such as the respondent of the full benefit of the exemption which was originally envisaged in terms of the Industrial Policy, 2012. H.6. Expectations breached by the State of Jharkhand 48. Applying the abovementioned principles in the present case, we are unable to perceive any substance in the submission of the State which was urged in defence before the High Court. Not only did the State in the present case hold out a solemn representation, this representation was founded on its stated desire to encourage industrialisation in the State. The policy document spelt out: - 92 - NC: 2024:KHC:38067 WP No. 6165 of 2022 (i) The nature of the incentives; (ii) The period during which the incentives would be available; and (iii) The time-limit within which follow-up action would be taken by the State Government through its departments for implementing the Industrial Policy, 2012. 49. The State having held out a solemn representation in the above terms, it would be manifestly unfair and arbitrary to deprive industrial units within the State of their legitimate entitlement. The State Government did as a matter of fact, issue a statutory notification under Section 9 but by doing so prospectively with effect from 8-1-2015 it negated the nature of the representation which was held out in the Industrial Policy, 2012. Absolutely no justification bearing on reasons of policy or public interest has been offered before the High Court or before this Court for the delay in issuing a notification. The pleadings are completely silent on the reasons for the delay on the part of the Government and offer no justification for making the exemption prospective, contrary to the terms of the representation held out in the Industrial Policy, 2012. 50. It is one thing for the State to assert that the writ petitioner had no vested right but quite another for the State to assert that it is not duty-bound to disclose its reasons for not giving effect to the exemption notification within the period that was envisaged in the Industrial Policy, 2012. Both the accountability of the State and the solemn obligation - 93 - NC: 2024:KHC:38067 WP No. 6165 of 2022 which it undertook in terms of the policy document militate against accepting such a notion of State power. The State must discard the colonial notion that it is a sovereign handing out doles at its will. Its policies give rise to legitimate expectations that the State will act according to what it puts forth in the public realm. In all its actions, the State is bound to act fairly, in a transparent manner. This is an elementary requirement of the guarantee against arbitrary State action which Article 14 of the Constitution adopts. A deprivation of the entitlement of private citizens and private business must be proportional to a requirement grounded in public interest. This conception of State power has been recognised by this Court in a consistent line of decisions. As an illustration, we would like to extract this Court's observations in National Buildings Construction Corpn. [National Buildings Construction Corpn. v. S. Raghunathan, (1998) 7 SCC 66 : 1998 SCC (L&S) 1770] : (SCC p. 75, para 18) “18. … The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is akin to violation of natural justice.” 51. Therefore, it is clear that the State had made a representation to the respondent and similarly situated industrial units under the Industrial Policy, 2012. This representation gave rise to a legitimate expectation on their behalf, that they would be offered a 50% rebate/deduction in electricity duty for the next - 94 - NC: 2024:KHC:38067 WP No. 6165 of 2022 five years. However, due to the failure to issue a notification within the stipulated time and by the grant of the exemption only prospectively, the expectation and trust in the State stood violated. Since the State has offered no justification for the delay in issuance of the notification, or provided reasons for it being in public interest, we hold that such a course of action by the State is arbitrary and is violative of Article 14. 60. Similarly, in Manuelsons Hotels Pvt Ltd. vs. State of Kerela - (2016) 6 SCC 766, it was held as under; 36. In the present case, it is clear that no writ of mandamus is being issued to the executive to frame a body of rules or regulations which would be subordinate legislation in the nature of primary legislation (being general rules of conduct which would apply to those bound by them). On the facts of the present case, a discretionary power has to be exercised on facts under Section 3-A of the Kerala Building Tax Act, 1975. The non-exercise of such discretionary power is clearly vitiated on account of the application of the doctrine of promissory estoppel in terms of this Court's judgments in Motilal Padampat [Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409 : 1979 SCC (Tax) 144 : (1979) 2 SCR 641] and Nestle [State of Punjab v. Nestle India Ltd., (2004) 6 SCC 465] . This is for the reason that non-exercise of such power is itself an arbitrary act which is vitiated by non-application of mind to relevant facts, namely, the fact that a G.O. dated 11-7-1986 specifically provided for - 95 - NC: 2024:KHC:38067 WP No. 6165 of 2022 exemption from building tax if hotels were to be set up in the State of Kerala pursuant to the representation made in the said G.O. True, no mandamus could issue to the legislature to amend the Kerala Building Tax Act, 1975, for that would necessarily involve the judiciary in transgressing into a forbidden field under the constitutional scheme of separation of powers. However, on facts, we find that Section 3-A was, in fact, enacted by the Kerala Legislature by suitably amending the Kerala Building Tax Act, 1975 on 6-11-1990 in order to give effect to the representation made by the G.O. dated 11-7-1986. We find that the said provision continued on the statute book and was deleted only with effect from 1- 3-1993. This would make it clear that from 6-11-1990 to 1-3- 1993, the power to grant exemption from building tax was statutorily conferred by Section 3-A on the Government. And we have seen that the Statement of Objects and Reasons for introducing Section 3-A expressly states that the said section was introduced in order to fulfill one of the promises contained in the G.O. dated 11-7-1986. We find that the appellants, having relied on the said G.O. dated 11-7-1986, had, in fact, constructed a hotel building by 1991. It is clear, therefore, that the non-issuance of a notification under Section 3-A was an arbitrary act of the Government which must be remedied by application of the doctrine of promissory estoppel, as has been held by us hereinabove. The ministerial act of non-issue of the notification cannot possibly stand in the way of the appellants getting relief under the said doctrine for it would be unconscionable on the part of the Government to get away without fulfilling its promise. It is also an admitted fact that no other - 96 - NC: 2024:KHC:38067 WP No. 6165 of 2022 consideration of overwhelming public interest exists in order that the Government be justified in resiling from its promise. The relief that must, therefore, be moulded on the facts of the present case is that for the period that Section 3-A was in force, no building tax is payable by the appellants. However, for the period post-1-3-1993, no statutory provision for the grant of exemption being available, it is clear that no relief can be given to the appellants as the doctrine of promissory estoppel must yield when it is found that it would be contrary to statute to grant such relief. To the extent indicated above, therefore, we are of the view that no building tax can be levied or collected from the appellants in the facts of the present case. Consequently, we allow the appeal to the extent indicated above and set aside the judgment of the High Court. 61. As stated supra, IPS 2008 would not be applicable to the petitioner and if it is denied benefit under both IPS 2002 and IPS 2008, the same would lead to complete denial of any benefit whatsoever to the petitioner which cannot be understood to be intended by the statute. 62. In the case of Mysore Minerals Ltd. vs. CIT, - [1999] 106 Taxman 166 (SC),it was held as under: 14. In our opinion, the term owned as occurring in Section 32(1) of the Income Tax Act, 1961 must be assigned a wider meaning. Anyone in possession of property in his own title - 97 - NC: 2024:KHC:38067 WP No. 6165 of 2022 exercising such dominion over the property as would enable others being excluded therefrom and having the right to use and occupy the property and/or to enjoy its usufruct in his own right would be the owner of the buildings though a formal deed of title may not have been executed and registered as contemplated by the Transfer of Property Act, the Registration Act etc. “Building owned by the assessee” — the expression as occurring in Section 32(1) of the Income Tax Act means the person who having acquired possession over the building in his own right uses the same for the purposes of the business or profession though a legal title has not been conveyed to him consistently with the requirements of laws such as the Transfer of Property Act and the Registration Act etc. but nevertheless is entitled to hold the property to the exclusion of all others. 63. It is therefore clear that the petitioner is covered under IPS 2002 and not under IPS 2008 as contended by the respondents, whose contentions in this regard also cannot be accepted. 64. A perusal of the material on record during the period subsequent to the petitioner filing the application on 15.12.2006, several correspondences were made between the petitioner and the Central Government which was also co-ordinating with the relevant authorities of the State Government in connection with the application of the petitioner and the said process continued in relation to the application of the petitioner even after IPS 2008 came into force on 08.01.2008 and until 03.02.2009 when the 1st - 98 - NC: 2024:KHC:38067 WP No. 6165 of 2022 respondent issued an Endorsement which was quashed by this Court in W.P.No.3574/2010; throughout during the aforesaid period from 15.12.2006 when the petitioner filed the application under IPS 2002 till the 1st respondent issued the aforesaid endorsement dated 03.02.2009, the 1st respondent did not inform the petitioner that its application was beyond the last date of IPS 2002 expiring on 31.03.2006 or that the petitioner had not completed the park or that it was not entitled to the benefit of IPS 2002; the series of events including the correspondence between the parties from 15.12.2006 to 03.02.2009 would clearly indicate that the 1st respondent had not only accepted the application of the petitioner but had duly considered and acted upon the same and consequently, the 1st respondent was estopped from rejecting the application by passing the impugned order, which deserves to be set aside. 65. The Respondents have placed reliance upon a judgment of the Delhi High Court in the case of Regency Suraj Infrastructures v. Union of India - [2012] 345 ITR 105 (Delhi) in order to contend that in the said case, it was held that when an application was filed on 23.09.2006, there was no scheme in - 99 - NC: 2024:KHC:38067 WP No. 6165 of 2022 place/operation which had been framed and notified by the Central Government and that IPS 2002 had lapsed as it was effective, notified and applicable up to 31.03.2006. 66. In my considered opinion, the said decision in Regency Suraj’s case (supra) is not applicable to the facts of the instant case on hand for more than one reason; in none of the correspondence between the parties between 15.12.2006 and 03.02.2009, the 1st respondent raised the issue of belated application; as late as on 10.10.2007, the 1st respondent sought to know whether the park has become functional and how many units are located, to which the petitioner confirmed that the park is fully functional and stated that three units have occupied the park and are functioning and even at this stage, there was not a word on alleged belated application; in the Endorsement dated 03.02.2009 and reply letter dated 08.01.2010, the 1st respondent did not attribute the reason for non-acceptance of petitioner’s application for filing of such application after 31.03.2006; further, in the Office Memorandum produced as Annexure R-4 to the Statement of Objections, it is not the case of the 1st respondent that application in Form IPS-1 under IPS 2002 is required to be made on or before - 100 - NC: 2024:KHC:38067 WP No. 6165 of 2022 31.03.2006; as stated earlier, in paragraphs-5 and 8 of the statement of objections, the 1st respondent has specifically conceded that there is no cut-off date for making an application under IPS 2002; so also, even in earlier W.P.No. 3574/2010, it was never the case of the respondents that the application filed by the Petitioner under IPS 2002 was not entertainable as being filed beyond 31.03.2006 which is clear from the order dated 16.03.2016; in other words, when it was never the case of the respondents that the application filed by the petitioner under IPS 2002 is not entertainable as being filed beyond 31.03.2006, the respondents are not justified in relying on the decision in Regency Suraj’s case (supra), wherein the only basis adopted by the Court was that the application was filed after 31.03.2006; the meaning of ‘develops’ appearing in paragraph-3 of IPS 2002 in contrast with ‘date of commencement’ appearing in paragraph-4(1) of IPS 2008 was not addressed to the Court; the other material differences between IPS 2002 and IPS 2008 were not brought to the attention of the Court. Likewise, other material differences between IPS 1999 and IPS 2002 were not brought to the attention of the Court; unlike paragraph-3 of IPS 1999, which clearly provided a period of operation of the said scheme as ending on 31.03.2002, no such - 101 - NC: 2024:KHC:38067 WP No. 6165 of 2022 period of operation has been prescribed in IPS 2002. Under these circumstances, it is clear that the said decision in Regency Suraj’s case (supra) is not applicable to the facts of the instant case and the contention of the respondents in this regard cannot be accepted. 67. Reliance is placed by the 1st respondent upon a judgment of the Apex Court in the case of CCE v. Dilip Kumar & Company - [2018] 361 ELT 577 (SC) to contend that an exemption provision must be interpreted strictly and that the burden of proving applicability is on the assessee to show that his case falls within the parameters of such provision. In this context, it is necessary to state that there is a difference between interpretation of mere exemption or deduction provisions and those exemption or deduction provisions which have a beneficial object. In fact, at paragraphs-38 and 51 of the decision in Dilip Kumar’s case (supra), the Court has referred to the decision of another Constitution Bench in CCE v. Hari Chand Shri Gopal and Others [2011] 1 SCC 236. In paragraph-29 of the said judgment in Hari Chand Shri Gopal’s case (supra), it has been observed that a provision providing for an exemption, concession or exception, as - 102 - NC: 2024:KHC:38067 WP No. 6165 of 2022 the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the statute and the object and purpose to be achieved. 68. The above observation of the Apex Court would indicate that the proposition that an exemption provision must be construed strictly is not absolute or infallible and it is subject to exceptions depending upon the settings on which the provision has been placed in the statute and the object and purpose to be achieved. In this regard, the Hon’ble Supreme Court in the case of Mavilayi Service Co-Operative Bank Ltd. v. CIT - [2021] 431 ITR 1, observed that a provision providing for a deduction with a benevolent purpose has to be construed liberally. 69. In the case of Government of Kerala v. Mother Superior Adoration Convent [2021] 126 taxmann.com 68, the Apex Court has held that exemption provisions which have a beneficial purpose must be interpreted liberally. The Apex Court in paragraph-22 of its decision observed that the judgment in Dilip Kumar’s case (supra) did not consider various lines of judgments which distinguished between incentive provisions and incentive - 103 - NC: 2024:KHC:38067 WP No. 6165 of 2022 provisions with beneficial purposes and thus held that the decision in Dilip Kumar’s case (supra) is sub-silentio and hence, cannot be said to have over-ruled the line of judgments rendered in the context of incentive provisions with beneficial purposes. It is therefore clear that the decision in Dilip Kumar’s case (supra) rendered in the context of exemption notification and without considering the decisions rendered in the context of tax incentive provisions with liberal interpretation would not apply in the context of interpretation of deduction provisions with beneficial purpose. On the other hand, the various decisions relied upon by the petitioner supra, have held that exemption or incentive provisions having a beneficial object must receive a liberal interpretation and as such, the impugned order deserves to be quashed on this ground also. 70. There is no gainsaying the fact that Section 80-IA(4)(iii) which provides deduction is with the avowed object of encouraging development of industrial parks which would in turn lead to overall economic development and employment generation and as such, Section 80-IA(4)(iii) is clearly a deduction provision having a beneficial object. In Bajaj Tempo Ltd. v. CIT (1992) 196 ITR 188 (SC), in the context of Section 15C of the Indian Income Tax Act, - 104 - NC: 2024:KHC:38067 WP No. 6165 of 2022 1922 (which corresponds to Section 80J of the I.T Act) [Section 80J omitted by the Finance (No. 2) Act, 1996, w..e.f. 1-4-1989] which provided for deduction in respect of profits and gains of newly established undertakings, it has been observed that the provision has a beneficial object and must be construed liberally. In the instant case on hand, the avowed object of Section 80-IA(4)(iii) has been achieved by the petitioner insofaras it has developed and commenced the operations of the industrial park on 02.07.2007, thereby contributing to the economic development and generating employment. In such case, keeping in mind the beneficial object of Section 80-IA(4)(iii), the provisions of the said section read with IPS 2002 are to be construed liberally and the petitioner must be held eligible for the benefits of the same. 71. In view of the aforesaid facts and circumstances, I am of the considered opinion that the impugned order dated 14.02.2017 passed by the 1st respondent deserves to be quashed and necessary directions be issued to the respondents to sanction approval and notify the proposed industrial park of the petitioner under IPS 2002, within a stipulated timeframe. - 105 - NC: 2024:KHC:38067 WP No. 6165 of 2022 72. In the result, I pass the following:- ORDER (i) Petition is hereby allowed. (ii) The impugned order at Annexure-A dated 14.02.2017 passed by the 1st respondent is hereby quashed. (iii) The 1st respondent is directed to grant / sanction / approval of the industrial park “Salarpuria Touch Stone” of the petitioner under Industrial Park Scheme, 2002 (IPS 2002) for the purpose of Section 80-IA(4)(iii) of the Income Tax Act, 1961 in favour of the petitioner within a period of one month from the date of receipt of a copy of this order. (iv) The 2nd respondent is directed to notify the industrial park “Salarpuria Touch Stone” of the petitioner under Industrial Park Scheme, 2002 (IPS 2002) for the purpose of Section 80- IA(4)(iii) of the Income Tax Act, 1961 in favour of the petitioner within a period of one month from the date of receipt of a copy of this order. Sd/- (S.R.KRISHNA KUMAR) JUDGE Srl. "