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2015 (4) TMI 941 - BOMBAY HIGH COURT

2015 (4) TMI 941 - BOMBAY HIGH COURT - [2015] 374 ITR 722 (Bom) - Application for notification under section 801A(4)(iii) rejected - application for approval of the Information Technology Park under the Industrial Park Scheme, 2008 - Non fulfillment of conditions - revenue contended that it is apparent that they have included the area of common facility and infrastructure facility and it is at variance with the conditions set out in the Industrial Park Scheme, 2008 - Held that:- That there is di .....

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on the same being completed, then, it is not for anybody else to question the contents. They shall be under such circumstances taken as conclusive evidence of the commencement and completion of the work. Unless these certificates are obtained by perpetuating a fraud or they can be termed as suspicious, we do not see how the authorities like the Central Board of Direct Taxes or the Commissioner can question the contents and moreso by exhibiting their ignorance completely. If they have a doubt abo .....

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proval and sanction thereof is obtained from the Municipal Corporation. They have a full set of engineers and experts who apply their mind and sanction and approve the building construction plans and in terms of the Development Control Rules, 1991 which are in place. In such circumstances, we do not see what discrepancy can be found with the Architect's certificate. However, in relation to that as well, we do not find any application of common area for use as industrial park.

There is .....

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vity defined in para 2(j) of the Scheme. To facilitate industrial activity that these conditions are incorporated or inserted. In such circumstances, we do not understand as to how para 4(2a) and 4(6) of the Scheme have been violated.

As a result of the above discussion, we set aside the order dated 21st November, 2014. The application of the petitioners dated 22nd February, 2011 together with all further details and specifications provided by them shall be considered afresh and requi .....

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seeks a writ of mandamus, order or direction, directing the first respondent to grant the application of petitioner No.1 dated 22nd February, 2011 and issue a notification under section 80IA(4) (iii) of the Income Tax Act, 1961. 2. Further prayer is to quash and set aside the order dated 21st November, 2014 rejecting the application of petitioners and the order of the third respondent dated 10th September, 2014 refusing to stay the demand. 3. Since detailed arguments were canvassed and the affi .....

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ssing these properties. They formed an Association of Persons. The name and style thereof is M/s. Techniplex. A declaration dated 30th January, 2007 was executed with a view to develop the land for constructing an Information and Techonology Park described as Techniplex-I. A letter of intent was obtained from the Joint Director of Industries (IT), Development of Commissioner (Industries) of the Directorate of Industries, Government of Maharashtra which is dated 12th June, 2007. Petitioner No.1 a .....

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ity and the area for infrastructure facility, including the refuge area on the 4th floor, admeasuring 4,685.04 sq. mtrs. Therefore, the allocable constructed area (without taking the area for common facility and the area for infrastructure facility) is 21,883.31 sq. mtrs., that the area for industrial use is 19,707 sq. mtrs. and for commercial use is 2176 sq. mtrs. Thus, in the aforesaid allocable area for industrial use, the area of common facilities and infrastructure facilities admeasuring 42 .....

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l Board of Direct Taxes, Department of Revenue, Ministry of Finance, New Delhi. A copy of this application in the prescribed form is annexed at annexure-B to the petition. 6. Then, the salient features of the Scheme have been extensively set out in the writ petition and we shall make a reference to it a little later. However, the petitioners highlight before us one of the preliminary condition and which is of procuring of an occupation certificate from the competent authority, namely, the Munici .....

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d and eventually, deduction under section 80-IA(4)(iii) of the I.T. Act was disallowed by the assessing officer in terms of the assessment order dated 24th March, 2014. An appeal has been preferred against the order of the assessing officer before the Commissioner of Income Tax (Appeals). There was a stay application preferred. We are not as much concerned with that aspect of the matter. Suffice it to say that earlier a writ petition was filed in this Court being Writ Petition No.2315 of 2014 ag .....

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h March, 2014 will not be given effect to but the attachment levied on the property of the petitioners shall continue. The stay application was also rejected. Reference to the details in that regard is to be found in the writ petition from pages 15 to 17 of the paper-book. 8. The petitioners have reiterated the stand and extensively to indicate as to how the compliance have been made with the requirement stipulated in the Scheme. 9. The petitioners are aggrieved and dissatisfied with the fact th .....

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n does not fulfill the conditions specified at para 4(1), 4(2A) and 4(6) of the Scheme. Therefore, the application under section 80IA(4)(iii) of the I.T. Act came to be rejected. 11. It is aggrieved by this order that the present writ petition has been filed. 12. Mr.Sridharan, learned senior counsel appearing on behalf of the petitioners submitted that the petitioners have complied with the requisite conditions pertaining to the Scheme. There is total non application of mind on the part of respo .....

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strial park. The letter of intent which has been issued by the Government of Maharashtra has been taken into consideration and together with the certificate. Petitioner No.1 had undertaken the project of constructing the Technology Park building on the plot of land belonging to petitioner No.1 and the Technology Park building was completed before 31st March, 2011 for which three part occupation certificates were issued by the Municipal Corporation of Greater Mumbai as per the prevailing system. .....

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rms of the Scheme. 13. Our attention has been invited to the order namely, the order dated 10th September, 2014 which has been passed by the Joint Commissioner of Income Tax on the stay application and the impugned order dated 21st November, 2014. Mr.Sridharan submits that the occupation certificates have been granted phase-wise and floor-wise. That does not mean that the same are not in accordance with the conditions stipulated in the Scheme and the Mumbai Municipal Corporation Act, 1888. In th .....

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h regard to the grant of such certificate and compliance with the Municipal Corporation Laws would indicate that they are absolutely not aware of the same. They ought not to have therefore, questioned the contents of such certificate nor they had any authority, power or jurisdiction to do so. All this could not have been done after the clarification of the Municipal Corporation of Greater Mumbai. In that regard, Mr. Sridharan invites our attention to a communication from the Municipal Corporatio .....

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es were raised and the reports were called for that is how, the petitioners' request, including for grant of deduction has been processed. This order which has been passed in compliance with the directions issued by this Court would indicate that the authorities did not proceed in haste. There were certain issues and specifically raised namely, the location and completion of the Industrial Park, units, ownership, activities and area, constructed floor area and allocable area. If the authorit .....

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of these authorities is not vitiated by any non application of mind nor this Court can interfere with the same and by substituting its own views. If that is how the authorities have looked at the matter, then, the expert body's consideration should not be interfered with in the writ jurisdiction. The order passed cannot be termed as arbitrary or vitiated by any error of law apparent on the face of the record. The conclusion reached cannot be termed as perverse. Mr.Pinto, therefore, relied u .....

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ons given to the Government Advocate or Advocate for the revenue. They are being put and placed on record as if they are affidavit-inreply to a writ petition. We are sorry to state that the person as high as the Commissioner of Income Tax filing an affidavit on behalf of the Central Board of Direct Taxes, so also, on behalf of himself and the Commissionerate is unaware that an affidavit ought to be in first person and should not make any reference to all the instructions, either given orally or .....

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ut here that in another case belonging to the same group, namely M/s. Balwas Realty and Infrastructure Pvt. Ltd., involving many common issues, the Hon'ble High Court has dismissed similar writ as informed by the Standing Counsel. This may also be brought to the notice of our Counsel deputed to argue this case after verifying the above fact. In fine, I say that this Writ is devoid of merit and requires at the stage of admission." 18. Apart from the above, what we find is that in several .....

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s instructions in writing is not filed as an affidavit in reply in this Court. A useful reference can be made to Order XIX of the Civil Procedure Code in this behalf. Therefore, we would appreciate that hereafter such a mistake is not committed. Else we may have to summon the deponent of the affidavit and express to him our displeasure and deprecate the practice. We hope that after this the state of affairs improve and in particular of the concerned department in the revenue. Be that as it may, .....

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the Income Tax Act, 1961, the provision reads as under:- "Deductions in respect of profits and gains from industrial undertakings or enterprises engaged in infrastructure development, etc. S.80-IA (4) - This section applies- (i) ….. (ii) ….. (iii) any undertaking which develops, develops and operates or maintains and operates an industrial park [or special economic zone notified by the Central Government in accordance with the scheme framed and notified by that Government for .....

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o 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." 20. A bare perusal of thereof indicates how the section applies to the deductions in respect of profits and gains from infrastructure development and setting up of any industrial park. If a undertaking develops and opera .....

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equirement of this definition and, therefore, deduction under section 801A(4)(III) of the/* I.T. Act is permissible. 21. However, what has been indicated further is that this Scheme styled as Industrial Park Scheme, 2008 is notified on 8th January, 2008 by the Central Government in exercise of the powers conferred by clause (iii) of sub-section (4) to section 80IA of the I.T. Act. The Scheme shall be applicable for any undertaking which develops, develops or operates or maintains and operates an .....

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rea common facility, date of completion, infrastructural facilities and industrial activity. One of the definitions in para 2(b) of the scheme reads as under:- "(b) allocable area means are available for allocation to the units for the industrial activity or commercial activity and shall exclude the area utilized for providing common facility or infrastructure facility. " 23. Thus, perusal thereof would indicate that Industrial park means project in which the plots of developed space o .....

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rial park may make an application for the notification under section clause (iii) of subsection (4) of section 80IA of the I.T. Act in the prescribed form to the Secretary (ITA-1 Section) to the Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, New Delhi and by calling for the report from other departments and agencies as may be deemed fit by the Central Board of Direct Taxes. Para 4 of the Scheme sets out the criteria for approval. The criteria is set out in its clauses .....

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ter, the general conditions are to be found in para 5 which indicate as to how the industrial park shall be construed as developed on the date of commencement. The tax benefits under the Act may be available to the undertaking only if the undertaking has the minimum number of thirty units and the industrial park have been notified by the Central Board of Direct Taxes under section 80IA of the I.T. Act. They will be available only to the undertaking notified by the Central Government and not to a .....

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ion provided the criteria for approval has been fulfilled and complied with. The criteria for approval indicates as to how the date of commencement of Industrial Park should be on or before 1st day of April, 2006 and not later than 31st March, 2011. The area allocated or to be allocated to the industrial units shall not be less than 75% of the allocable area. By clause (2A) which has been added to para 4 and which indicates the area allocated or to be allocated for commercial activity shall not .....

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us clauses of the application / form indicates the details of the proposed industrial park, the total allocable area in square metres, the total proposed construction, the plot area, proposed allocable area for industrial area in square metres, the proposed allocable area for commercial use in square metres, the allocable area marked for industrial purpose (90%) and the allocable area marked for commercial area (10%). The intention was to use these areas of industrial park and information techno .....

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three occupation certificates have been issued dated 21st November, 2009, 15th October, 2010 and 14th December, 2010. The table in form IPS-I of IV-I indicates the phase-wise certificates. These certificates that have been issued by the Municipal Corporation of Greater Mumbai have been issued pursuant to an application which has been made by a licensed Surveyor. The licensed Surveyor applied on 26th October, 2009 for permission to occupy the part completed IT Building No.4 and plus sub-plot-C b .....

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e issued prior to the above part occupancy certificate or commencement certificate dated 19th January, 2007 and prior thereto the intimation of disapproval. We are really surprised at the insistence of the board on furnishing certificates contrary to the provisions of the M.M.C. Act, 1888 which enable the Corporation to grant them. It is not for the Board to sit in judgment over the said certificates or the contents thereof as if it is an appellate authority. 25. There is a comprehensive develop .....

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t which sanctions and approves a plan. A complete exercise involving public at large is carried out in terms of the Act. The application of parties like the petitioner to develop and construct individual plots are scrutinized, accordingly in terms of the development plan proposals, by the Planning Authority and which is Municipal Corporation of Greater Mumbai in this case. Therefore, we are surprised as to how the occupation certificate could be faulted for its contents and particularly whether .....

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oted above has been lost sight of. In paragraph 4 of the order, reference is made to para 4(1) of Industrial Park Scheme, 2008. It states that the date of commencement of the industrial park should be on or after 1st April, 2006 but not later than 31st March, 2011. Further, as per para 2(f) of the Scheme, the date of commencement means the date of obtaining the completion certificate or occupation certificate as the case may be, from the relevant local authority certifying that all the required .....

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ondition of the Scheme is fulfilled by it. In response thereto, the petitioners produced a letter from the Municipal Corporation of Greater Mumbai dated 9th January, 2014 and that letter reads as under:- "MUNICIPAL CORPORATION OF GREATER MUMBAI CHE/9299/BNP(WS)/AP To, Shri Hussein Abdul Karim Balwa & others, Techniplex-I, 4th Floor, Techniplex Complex, Veer Sarvakar Flyover, Goregaon (West), Mumbai - 400062. Sub: I.T. Office Building No.4 on Sub-Plot 'C' bearing C.T.S. No.928-A, .....

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d as follows:- a) Part occupation certificate comprising of basement + 4th floor + 7th floor + 8th floor + 9th floor on 21/11/2009. b) Part occupation (for car parking) + 1st to 3rd upper floors and unit No.16-A, 16-B, 16-C & 17 at 5th floor on 15/10/2010. c) Part occupation certificate comprising of remaining portion of the 5th floor and entire 6th floor on 14/12/2010. Hence, it is confirm that the occupation permission to the entire I.T. Building No.4 is granted since the entire building w .....

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erence comprising of basement plus stilt plus two level podium plus 1st floor to 9th upper floors were granted. Thus, how this occupation permission was granted has been indicated. The Corporation has acknowledged that it granted part occupancy certificate and on various dates so that part portions could be occupied. However, it is stated that the occupation permission to the entire IT building No.4 is granted since the entire building has been completed in all respects on 14th December, 2010. T .....

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plied with the conditions and, therefore, a notification be issued. 27. Then, the impugned order proceeds to scrutinise the details. The details, according to the petitioners, which are already provided are that the project consisted of many buildings. The application clearly mentions that the completion certificate and IOD (intimation of disapproval) has been filed for the entire project but the aforementioned part completion has been furnished only for one building No.4. The authorities lost s .....

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set up in one building or the petitioners started or commenced an industrial activity in a portion thereof, a certificate styled as completion certificate or occupation certificate from the local authority certifying that all the required development activity for the project has been completed is required. Now, if the project envisages any undertaking which develops, develops and operates or maintains and operates an industrial park, then we do not see how the industrial park and which locates t .....

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in calling upon the petitioners to produce a certificate which will indicate the entire project and development conceived of by the petitioners being completed. The petitioners may have in mind several projects or Schemes of different nature in different buildings. There is a plot on which several buildings may be constructed. The plot can be developed for composite use and that is permissible. In such circumstances, what the authorities in this case are concerned with is the location of the uni .....

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located. At the area stated to be occupied by the industrial park such other facilities have also been developed by the applicant, which form the part of the project. Applicant has developed a club house and other residential / commercial area at the very same location, as is evident from the perusal of the Articles of Agreement of AOP. a. The AOP agreement submitted by applicant states that the Clubhouse has rather been constructed over the area i.e. C.T.S. No.928A part, 928A/15, 928A/16 and 92 .....

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e third schedule states that the Techniplex I is located at plots of land bearing CTS No.928A part, 928A/1 to 928/14 of village Pahadi Goregaon (West) and new CTS No.73A/D of Village Chincholi, collectively admeasuring about 7877.16 square Meters. 4.5 Therefore, the three Part Occupation Certificate (POC) do not establish the completion of the Industrial park as approved by the Government or its completion as per the approved plans. The three POC no way establish that the industrial park as appr .....

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aphs would indicate that three part occupation certificates do not establish according to the first respondent, the completion of the industrial park as approved by the Government or its completion as per the approved plans. These three part occupancy certificates establish that the industrial parks as approved vide letter of intent was complete on 31st March, 2011. In the absence of completion or full occupation certificate, it cannot be ascertained whether the project as approved by the compet .....

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ove nature cannot be too much to expect. This minimum expectation is also not fulfilled in this regard. In this respect, we may make a reference to section 353A of the Bombay Provincial Municipal Corporation Act, 1888, which reads as under:- "Completion certificates, permission to occupy or use. 353A. (1) Every person who employs a licensed surveyor or person approved by the Commissioner to erect a building or execute any such work as is described in section 342 shall, within one month afte .....

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all necessary facilities for the inspection of such building or of such work : Provided that- (a) such inspection shall be commenced within seven days from the date of receipt of the notice of completion, and (b) the Commissioner may, within seven days from the date of commencement of such inspection, by written intimation addressed to the person from whom the notice of completion was received, and delivered at his address as stated in such notice, or, in the absence of such address, affixed to .....

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ch work, until- (a) the permission referred to in proviso (b) to sub-section (1) has been received, or (b) the Commissioner has failed for twenty-one days after receipt of the notice of completion to intimate as aforesaid his refusal of the said permission." 29. A perusal of the same would indicate as to how completion certificates, permission to occupy or use is granted. If the licensed Surveyor has been employed, then the Surveyor or the person approved by the Commissioner as their employ .....

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n the proviso. Section 353A indicates as to how a licensed Surveyor has to act. No person shall occupy or permit to be occupied any such building, or use or permit to be used the building or part thereof affected by such work details of which as referred to in proviso (b) to sub-section (1) has been received or as provided in sub-section (2), if after receipt of notice for inspection as aforesaid the refusal of such permission has been intimated and within 21 days. 30. That there is difference b .....

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e being completed, then, it is not for anybody else to question the contents. They shall be under such circumstances taken as conclusive evidence of the commencement and completion of the work. Unless these certificates are obtained by perpetuating a fraud or they can be termed as suspicious, we do not see how the authorities like the Central Board of Direct Taxes or the Commissioner can question the contents and moreso by exhibiting their ignorance completely. If they have a doubt about the gen .....

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d and according to the authorities, it contained divergent views. The whole approach appears to be that this certificate would incidate completion of the entire project comprising of many buildings or more than one and that the Corporation should not have allowed seeking a grant of part occupation certificate when the entire building has not been completed. The part occupation certificate phase-wise may be issued but eventually even a building completion or permission occupying the entire buildi .....

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eded. The Board should have been aware of the fact that no project or construction for development can be undertaken or completed unless the plans for the same are furnished in advance and approval and sanction thereof is obtained from the Municipal Corporation. They have a full set of engineers and experts who apply their mind and sanction and approve the building construction plans and in terms of the Development Control Rules, 1991 which are in place. In such circumstances, we do not see what .....

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user or activity. The authorities in this case are concerned with the industrial park scheme. This park is a project comprising development project in which plots of developed space or built up space or a combination with common facilities and quality infrastructure facilities is developed. However, the percentage of allocable areas and which are stipulated in para 4 of the Scheme, indicate that the area allocated or to be allocated to industrial unit shall not be less than seventy-five per cent .....

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rrected and provided by the petitioner. This is referred to in para 8, then, there was no other requirement which remained to be complied with and it was not for the Board to probe by whom the industrial park is going to be used. There is no question of any non compliance with the Scheme simply because the Scheme itself in the paragraph states 'to be allocated'. If these words are inserted, the Park would be taken to be completed and the matter of location and for the purpose of seeking .....

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with the chart furnished by letter dated 10th March, 2011 wherein all units on the 4th floor are stated to be industrial and no mention at all was made of any commercial unit at 4th floor. Therefore, a letter was issued by the authorities on behalf of the Board to which the petitioners replied on 16th July, 2014 is also extensively referred. We do not find any justification and faulting the petitioners because they have indicated something about two units. If the two units of Nazim Hanif Palsani .....

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we do not find how it can be concluded that there is a violation of condition No.4(6) of the Scheme without reference to any clarification and documents which have been provided by the petitioners themselves. In that regard, what has been provided in sub-para (6) of para 4 of the Scheme is that no industrial unit, along with the units of an associated enterprise shall occupy more than twenty-five per cent of the allocable area. The difference between the minimum floor area, area allocated for c .....

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all conditions by allocating or selling them to certain person or associates. There is further stipulation that no industrial unit, along with the units of an associated enterprise shall occupy more than twenty-five per cent of the allocable area for industrial activity or commercial activity. Thus, what has to be understood with reference to the definition of term allocable as above in sub-para (2A) of para 2 of the Scheme takes care and disentitles a person from a notification if the industria .....

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etails and specifications provided by them shall be considered afresh and requisite order in accordance with law be passed as expeditiously as possible and within a period of four weeks from the date of receipt of a copy of this order. While considering this application in terms of these directions, the Board shall pass a fresh order and without being influenced by any of the conclusions recorded above. The Board shall strictly act in accordance with the Scheme and the observations made by this .....

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