TMI Blog2012 (11) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... red to deny deduction u/s 80IA(4)(iii) of the IT Act and AO cannot deny the deduction despite the fact that the assessee did not fulfil the conditions prescribed in the Notification issued by the Central Government for claiming deduction u/s 80IA(4)(iii). 3. Briefly the facts are the assessee a partnership firm has constructed Block No.3 White House which is being operated and maintained as an industrial park after obtaining approval from the Ministry of Commerce, Govt., of India as per Industrial Park Scheme, 2002. For the assessment year under dispute the assessee filed its return of income declaring a total income of ₹ 95,99,032 after claiming deduction of an amount of ₹ 3,45,25,532 u/s 80IA (4)(iii) of the Act. The retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The AO further observed that out of the allocable area of 176083.97 sft., the assessee should have utilised 90% of the areas which comes to 158475.57 sft., for approved industrial activity. However, the assessee has only utilised 112578 sft., as against 1,46,740 sft., claimed by the assessee. On the aforesaid finding, the AO held that since the assessee has not fulfilled the conditions mentioned in the letter of approval of Government, the assessee is not entitled for deduction u/s 80IA(4)(iii) of the Act. He therefore disallowed the claim of exemption. The assessee being aggrieved of the assessment order filed an appeal before the CIT (A). 4. In course of hearing before the CIT (A), the assessee submitted that though the proposed area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified in the industrial park, it is entitled for deduction u/s 80IA(4)(iii) of the Act. The assessee also relied upon the decision of ITAT, Hyderabad Bench in the case of Meenakshi Infrastructures Pvt. Limited vs. DCIT in ITA 313/Hyd/2010. It was submitted before the CIT (A) that the jurisdictional Tribunal has already decided the issue in favour of the assessee on identical facts for the assessment year 2007-08 in ITA No.1177/Hyd/2011 dated 30-11-2011. The CIT (A) after considering the contentions of the assessee and also going through the order of the ITAT, Hyderabad Bench in assessee s own case for assessment year 2007-08 found that the grounds on which the deduction u/s 80IA(4)(iii) was denied to the assessee are virtually the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less than the approve area of 2,81,279.93 sft. ii) The assessee has sold 5293 sft., in the ground floor out of the allocable area of industrial park in violation of Government Approval. iii) The total area utilised by the assessee for industrial activities is less than 90% of the total allocable area. 7. On the aforesaid grounds, the AO rejected the claim of deduction u/s 80IA (4)(iii). We find that in similar factual situation and on identical grounds, the AO denied the claim of deduction u/s 80IA (4)(iii) for asst. Year 2007-08. The matter went up in appeal before the co-ordinate bench of this Tribunal in the case of the same assessee for assessment year 2007-08 (supra). The issue before the Tribunal was summarised in par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee having such approval and notification cannot be denied the deduction. Under the circumstances, I am of the view that since the assessee had developed the industrial park duly approved and notified by the Central Government and the same has not been withdrawn for any reasons, the assessee would be entitled to the benefit of deduction u/s 80IA(4)(iii). 28. Further, in the case of Ganesh Housing Corporation Ltd., vs. Padam Singh, Under Secretary Ors. (2011) 61 DTR (Guj.) 1, the Gujarat High Court held that what was required to be done by the assessee was to provide for infrastructural facilities before the last date envisaged under the scheme and thereafter, there was no obligation on its part to ensure that industrial units ..... X X X X Extracts X X X X X X X X Extracts X X X X
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