9911796707
TMI Blog2008 (6) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... ate in respect of the profit earned from the hotel. The petitioner made an application for approval of its hotel under the aforesaid provisions. The relevant portion of the section and the rule are quoted hereunder : "Section 80-IA.(1). Where the gross total income of an assessee includes any profits and gains derived from any business of an industrial undertaking or a hotel or.... to which this section applies, there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction from such profits and gains of an amount equal to the percentage specified in sub-section (5) and for such number of assessment years as is specified in sub-section (6). (2) ..... (3) ..... (4) This section applies to business of any hotel, where conditions (i), (ii), (v) and either of the conditions (iii) or (iv) are fulfilled, namely :- (i) the business of the hotel is not formed by the splitting up, or the reconstruction, of a business already in existence or by the transfer to a new business of a building previously used as a hotel or of any machinery or plant previously used for any purpose; (ii) The business of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said sub-section (4) on the recommendations of the Department of Tourism." 3. As per the say of the petitioner, the petitioner made an application for exemption as the petitioner Hotel is located at a place of pilgrimage as required under section 80-IA (4) (iii) of the Act since the Hotel is situated at Surat which is an important place of pilgrimage to various sections of the society, more particularly Parsis. It is also the case of the petitioner that the condition of not having more than 300 hotel rooms of 3 star category and above is also fulfilled in the present case. The petitioner has also sent a certificate to the respondent issued by the Director, Tourism, Gujarat Government dated 18.06.96. It is also the case of the petitioner that the petitioner has also sent a certificate issued by the Department of Tourism, Government of India dated 11.07.96. It is pertinent to note that clause (v) of sub-section (4) of section 80-IA requires that the Hotel is to be approved by the prescribed authority and since the application made by the petitioner was meeting with all the requirements as provided for in the provisions quoted above, the respondent ought to have granted approva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected/filed." 4. It is submitted by the learned advocate for the petitioner that whoever wants exemption must fulfill all the conditions as laid down under the Act and the Rules, and if conditions are fulfilled, then the exemption is required to be given. In the order passed by the respondent, it is not stated by the respondent that the petitioner has not fulfilled any of the conditions as laid down under the Act and the Rules. The respondent, on the contrary, considered irrelevant and extraneous factors while rejecting the application preferred by the petitioner. Even the provisions contained in the Act as well as the Rules were not interpreted by the respondent in proper perspective. Thus, the petitioner being aggrieved by the order dated 31.03.97 passed by the respondent, is constrained to file the present petition, praying for quashing and setting aside the said order. 5. Learned advocate submitted that since the petitioner has fulfilled all the conditions laid down under the Act as well as the Rules, the petitioner's application ought to have been allowed, and necessary direction be issued to the authority to grant benefit as provided under section 80-IA (4) (iii) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-rule (2) of Rule 18BBC, the prescribed authority is only required to consider whether the conditions stipulated in clauses (a), (b) and (c) of the said sub-rule stand satisfied. The prescribed authority has no further discretion once the conditions are shown to have been satisfied. 9. The petitioner firm made an application to the respondent for granting approval of its Hotel at Surat under section 80-IA (4) (iii) of the Act. Director of Tourism, Government of Gujarat has issued certificate dated 18th June 1996 for the purpose of grant of approval under section 80-IA (4) (iii) of the Act to the effect that the hotel complies with the conditions stipulated for grant of the said benefit. Even the Government of India, Department of Tourism has issued a certificate to the effect that the Hotel is on the approved list of the Department of Tourism w.e.f. 23.3.94 in relation to sections 80-HHD and 80-IA (4) (iii) of the Act. The petitioner has also made a representation to the respondent and has also furnished all the relevant details called for from the petitioner. However, the respondent authority, by its order dated 31.03.97, rejected the application of the petitioner for conferr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
