TMI Blog2018 (8) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... 094 square meters were ignored altogether. In these circumstances, the impugned order and notification suffers from non application of mind. In the absence of any stipulation as to the minimum requirement of industrial park under the scheme as well as under the Income Tax Act, the unreasoned order of DIPP (ignoring the record and overlooking the material explanation of the petitioner with respect to the area constructed, the super area in fact leased and that there was no suppression of facts anytime) withdrawing the earlier notification cannot survive. As regards the other ground, i.e. non-construction beyond the scheme, the court notices that the approval was in fact issued after the date mentioned by the DIPP. Following the reasoning in Silverland (2011 (11) TMI 384 - BOMBAY HIGH COURT) of the Bombay High Court, that reason cannot survive. The impugned order and notification, withdrawing the earlier notification (of 2007) is hereby quashed. The second respondent shall consider all the materials on the record and after granting proper opportunity of hearing to the petitioner, and in the light of the above discussion, issue a reasoned order, dealing with all contentions. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the area specified in the petitioner s application was calculated on super area basis, which was also the premise on which the units were leased to tenants. It was further stated that such area was arrived at by multiplying in loading factor to the actual area based on normal industrial practice. This loading was in respect of common area facilities to be used by tenants such as staircase, lobby etc. 4. On 23.08.2006, Joint Director furnished a detailed memorandum to the Director of Industries. Government of Haryana responding to the petitioner s application pointing out that it had taken effective steps to construct the building and also obtained necessary approvals to implement its project. In this letter too, Joint Director pointed out that the total built up area was 14715.55 sq. mtrs. Therefore, the Joint Director recommended the petitioner s request for non-automatical approval as an industrial part. The Director of Industries too recommended by a letter dated 27.09.2006, including his report; itself mentioned the total built up area as 14715.55 sq. mtrs. Subsequently, the Central Government considered proposal in December 2006 and approved it by letter dated 5/18th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here has been violation of the following conditions: (i) The undertaking failed to ensure commencement of the Industrial Park by 31.03.2006 which is evident from the Occupation certification dated 20.10.2006 issued by Senior Towner Planner, Gurgaon and as per Clause 47 of Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Rules, 1965 of Act No.41 of 1963, any new building or a part of it cannot be occupied until and unless Occupation certificate has been issued for that building or for a part thereof. (ii) Occupation certificate issued by Senior Town Planner, Gurgaon in respect of the Park is for 8094.02 sq. mtrs. (ground floor to fifth floor) plus 2 Mumty, 2 Machine room and 1 water pump room on the terrace, whereas the undertaking at the time of submission of its initial application had declared area of the park as 24299.75 sq. Mtrs., which is a case of false representation. 6. Mr. Tarun Gulati, learned counsel urges that the basic premise on which the impugned order was made is erroneous because the DIPP proceeded to consider the request for amendment, without considering the entire record. It was highlighted in this regard that all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 99.75 sq. mtrs., the withdrawal of the notification based upon the reasoning in the impugned order cannot be faulted with. It is not denied that the completion of the petitioner s project was within the extended one-year period and that the ruling in Silverland Developers Pvt. Ltd. (supra) would apply. It is, however, stated that the DIPP preferred Special Leave Petition against the judgment of the Bombay High Court in Silverland Developers Pvt. Ltd. (supra). 9. It is apparent from the facts stated above that the petitioner s consistent stand is that the DIPP was always made aware of the fact that the built up area was 14715.55 square meter. When it applied for change or amendment, to conform to this fact, in 2013, the DIPP s Empowered Committee formed the opinion that its initial application, on the basis of which the petitioner sought approval for construction of an industrial park with an area of 24299.75 sq. mtrs. and the undertaking which was furnished at that stage, had been breached and that the petitioner in fact constructed a lesser area. The committee felt that the actual area constructed was 8094.02 sq. mtrs., which violated the approval given and the notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder and notification suffers from non application of mind. 11. As far as the other question (i.e. not completing the project before the approved date) is concerned the facts are that the approval was granted (to the petitioner) on 24.07.2006, by the Central Government. The letter stated that the expected date of construction was to be 15.03.2006. In the present case, the indications, in the form of correspondence with the town planning department and other letters discloses that the construction was complete; the occupancy certificate was awaited as of February, 2006. Para 9 of the scheme (of 2002) reads as follows: 9. General conditions.-(1) In case the commencing of the Industrial Model Town or Industrial Park or Growth Centre gets delayed by 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 condition also applies to the existing approvals under the Industrial Park Scheme, which envisages commissioning of the Parks, latest by March 31, 2002. (2) The tax benefits under the Act can be availed only after the number of units indicated in the application, are located in the indu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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