1. This petition under Article 226 of the Constitution of India challenges:â
(i) order dated 22.12.2014 of the Central Board of Direct Taxes (CBDT) rejecting the petitioner's application for issue of Notification under Section 80-IA4(iii) of the Income Tax Act, 1961 (the Act); and
(ii) order dated 30.9.2014 passed by the Deputy Commissioner of Income Tax rejecting the petitioner's application for stay consequent to the Assessment Order dated 28.3.2014 passed for the Assessment Year 2011-12 pending disposal of its appeal by the Commissioner of Income Tax (Appeals).
2. The petitioner on 22.2.2011 applied to the CBDT for approval of its Industrial Park - Techniplex - II (project) under Section 80-IA(4) of the Act for Assessment Year 2011-12. However, the CBDT did not dispose of the petitioner's application and in the meantime the Assessing Officer passed the Assessment Order dated 28.3.2014 under Section 143(3) of the Act for the Assessment Year 2011-12 without extending benefit under Section 80-IA(4) of the Act to the petitioner in respect of its project. In the above circumstances, the petitioner had filed a writ petition being Writ Petition No.2597 of 2014 in this Court seeking early disposal of its application dated 22.2.2011 by the CBDT. This Court by order dated 10.11.2014 directed the CBDT to dispose of the petitioner's application dated 22.2.2011 within a period of six weeks from 10.11.2014. Consequent to the above order, the CBDT has passed the impugned order dated 22.12.2014 rejecting the petitioner's application for approval of its project under Section 80-IA(4) of the Act and the same is subject matter of the present challenge.
3. The impugned order dated 22.12.2014 has denied the benefit of approval under Section 80 IA(4) of the Act on the following two conditions not being satisfied as under. :
(a) the area allocated to the industrial units shall not be less than 70% of the allocable area, and
(b) the area allocated for commercial activity shall not be more than 10% of the allocable area.
4. It is the grievance of Mr.Jhaveri, learned Counsel for the petitioner that the impugned order has not properly appreciated their reply dated 1.7.2014 and consequently the same has led to miscarriage of justice. Mr.Jhaveri, learned Counsel for the petitioners took us through the reply dated 1.7.2014 and attempted to reconcile the facts stated therein with the facts stated in its application dated 22.2.2011 raising issues of factual determination. We did point out to Mr.Jhaveri that while exercising our writ jurisdiction, we are principally concerned with the decision making process and if the view of the authority is a possible view i.e. not arbitrary and/or perverse, we would not interfere. Besides questions of factual determination in the absence of it being perverse and/or arbitrary, not a subject matter of determination in writ jurisdiction.
5. At this point of time, Mr. Jhaveri emphasised that in the present facts there is a flaw in the decision making process as its application was rejected without grant of personal hearing. We found no such request of personal hearing in the letter dated 1.7.2014. We find that in the letter dated 1.7.2014, there is no request made for grant of personal hearing though in an earlier letter such an application was made. In fact in the letter dated 1.7.2014 a request was made to CBDT to dispose of the matter at the earliest as it is pending for some time. Moreover the petitioners have not been able to show any prejudice to it in the absence of personal hearing.
6. We find that the impugned order is a speaking order. It is a settled principle of law that a person who claims benefit of exemption from payment of taxes has to fully satisfy the provisions extending the benefit. We find that the impugned order records that the petitioner has been shifting its stand every time, a query is raised with regard to the allocable area for industrial units in the project for the purposes of claiming benefit of the notification. Further the impugned order records that variation in the various letters of the allocable area is sought to be explained by the petitioner as typographical errors. Moreover, it records that in the letter dated 1.7.2014, the petitioner has stated that now they have remeasured the area of allocable area and therefore, on re-measurement they are now entitled to the benefit of Section 80-IA of the Act. The impugned order observes that in the absence of area being properly measured, how could the petitioners have sold its unit and also obtained necessary approval from various Statutory Authorities. In any view of the matter when the applicant seeks benefit of exemption, it must state the correct facts at the very first instance and not when the authorities point a flaw in the figures given, and thereafter keep changing it on grounds of typographical error and/or mistake. The applicant for a benefit of exemption must on the face of it be able to show that the conditions of exemption have been completely satisfied by him. Similarly, the second condition which the impugned order finds not satisfied is with regard to allocation of area for commercial activities. The impugned order records a finding of fact that even if the remeasured figure given by the petitioner is considered, the area allocated to the commercial activities is much more than 10%. The petitioner had claimed certain premises were carrying out information technology activities while the impugned order does record on facts that the actual activities carried out at the premises (some of them) were other than Information Technology activities. The impugned order records its conclusions as under:â
"17. Thus, it is noticed that the data furnished by the applicant, being inconsistent and divergent does not lead to a conclusive inference regarding whether the total allocation for industrial use is actually 75% keeping in view the discrepancies in area as well as ambiguity about industrial activities carried out in several units owned by individuals and families, which has remained unspecified. Moreover, the unsubstantiated claim about the fulfillment of conditions pertaining to commercial activity also does not prove that the same is in accordance with para 4(2A) of the Scheme. In fact, the inconsistencies in data and manipulation of information does not lead to evidences on the basis of which the application deserves approval.
18. I am therefore, directed to convey that essential requirements for approval under the Scheme are not met in this case. Despite giving many opportunities and substantial time for compliance, satisfactory explanation has not been filed. It has thus not been found to be a fit case for notification u/s. 80IA(4)(iii) of the Act. Hence, the competent authority has decided to reject the application."
7. In view of the conduct of the petitioner in putting before the Authority figures which when confronted with were substituted with new figures. This coupled with the fact that the grievances of the petitioner being factual which are not shown in any manner to be perverse and/or arbitrary, would not warrant exercise of our writ jurisdiction. Accordingly, the petition dismissed. No order as to costs. Needless to state that ad-interim order passed earlier stands vacated.
8. At this stage Mr. Jhaveri, learned Counsel for the petitioner seeks four weeks stay of this order. We are not inclined to stay this order for the reason that the assessment order for Assessment Year 2011-12 has already been passed on 28.3.2014 and the amounts due thereunder have not been paid only because of its application for benefit of Section 80IB(4) was pending before the CBDT. We did indicate to Mr. Jhaveri that in case the petitioner deposit the entire amount of demand attributable to the claim under Section 80IA(4) of the Act, we would be inclined to grant stay. This was unacceptable to the petitioner. At this stage Mr. Jhaveri states that the petitioner is ready to offer security. We are not inclined to accept it. Accordingly, the application for stay of this order is rejected.