Regency Soraj Infrastructures vs Union Of India & Others
2012 Latest Caselaw 500 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI
+               WRIT PETITON (CIVIL) NOS. 13825/2009 &
                7699/2010

                                   Reserved on: 22nd November, 2011
%                               Date of Decision:24th January, 2012

        REGENCY SORAJ INFRASTRUCTURES          ...Petitioner
                Through Mr. Porus F. Kaka, Sr. Advocate
                         with Mr. Divesh Chawla, Mr. Arvind
                        Gupta and Ms. Shiny Varghese,
                        Advocates.

                                       VERSUS

        UNION OF INDIA & OTHERS            .....Respondents

Through Mr. A.S. Chandhiok, ASG with Ms. Sonia Mathur and Ms. Riya Kaul, Advocates for UOI.

Mr. Kiran Babu, Sr. Standing Counsel for respondent Nos.3 and

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE R.V. EASWAR

SANJIV KHANNA, J.:

The petitioner- Regency Soraj Infrastructures is a joint

venture between M/s Flower Valley Properties and Buildcon and

M/s L.K. Corporation. Pursuant to permission granted by the

District Industrial Centre vide letter dated 3rd January, 2005 and

the commencement certificate dated 7th January, 2005 issued by

the Pune Municipal Corporation, they have constructed

Information Technology Park named Metropolitant in Shivaji

Nagar, Pune-Mumbai Road.

2. On 23rd September, 2006, they filed an application with the

Ministry of Commerce and Industries for registration of the

industrial park under the Industrial Park Scheme, 2002 (2002,

Scheme, for short) to avail of benefits/exemption under Section

80IA of the Income Tax Act, 1961 (Act, for short). Thereafter,

some correspondence was exchanged and information/details

were furnished. The petitioner was required and furnished vide

letter dated 29th August, 2007 first and final completion

certificate issued by Pune Municipal Corporation dated 29th

August, 2007. By letter dated 21st/22nd May, 2009, the petitioner

was informed that their case was considered by the Empowered

Committee in their meeting held on 18th September, 2008 and

since the date of commencement of park was after 31st March,

2006, their application was not covered under the 2002,

Scheme. The petitioner was asked to explain why the

application should not be treated as closed being ineligible

under the 2002, Scheme. Attention of the petitioner was drawn

to the Industrial Park Scheme, 2008 (2008, Scheme) notified by

the Central Board of Direct Taxes, Department of Revenue on

8th January, 2008 in respect of parks which had come up on or

after 1st April, 2006.

3. The petitioner submitted their justification dated 22nd June,

2009. However, vide letter dated 28th July, 2009, the petitioner

was informed that the 2002, Scheme which was administered by

the Ministry of Commerce and Industries had ended on 31st

March, 2006. Thereafter, the 2008, Scheme was notified on 8th

January, 2008 and parks set up on or after 1st April, 2006 but not

later than 31st March, 2009 were covered by the said scheme.

The 2008, Scheme was notified by Central Board of Direct

Taxes (CBDT). Therefore, the Department of Industrial Policy

and Promotion under the Ministry of Commerce and Industries

did not have mandate and was not the administering agency of

the 2008, Scheme and the application of the petitioner was

returned.

4. The petitioner thereafter moved an application before the

CBDT dated 26th June, 2009. The said application has been

rejected vide letter dated 8th October, 2009 on the ground that

the park developed by the petitioner did not fulfil the

requirements of 2008, Scheme on the following two accounts:

(i) The minimum requirement of constructed area in an

industrial park under 2008, Scheme was 15000 square

meters but the constructed area in the park of the

petitioner was 10287.50 square metres.

(ii) The petitioner's park had only five units as against thirty

units postulated and required under the 2008, Scheme.

The term "industrial unit" as defined under 2008, Scheme

means a separate and distinct entity assessable to tax

having a separate PAN.

5. The petitioner herein has challenged the order/letter dated

28th July, 2009 returning/rejecting their application under the

2002, Scheme and the order dated 8th October, 2009. It is

submitted that the petitioner is entitled to registration under the

2002, Scheme and, therefore, eligible for exemption under

Section 80 IA of the Act. In Writ Petition (Civil) No. 7699/2010,

the petitioner has also challenged the assessment order dated

22nd October, 2010 passed by Income Tax Officer, Pune

denying exemption under Section 80 IA(4)(iii).

6. In brief the contentions raised by the petitioner are as

under:

(1) On reading of Section 80 IA(4)(iii) read with the proviso,

the 2002, Scheme is applicable.

(2) The 2008, Scheme was introduced and implemented with

effect from 1st January, 2008 and being delegated

legislation cannot be given retrospective effect. Section

80 IA does not permit retrospective delegated legislation.

(3) There is conflict between Section 80 IA(4)(iii) read with

proviso, by which the date was extended upto 31st March,

2009; and the 2008, Scheme as the said scheme

postulates that it would be applicable to all industrial parks

set up with effect from the date of commencement as

defined in clause 2(f) i.e. the date when the completion

certificate was issued. The mandate of the Act prevails.

(4) Principle of promissory estoppel applies as the

respondents had accepted that the 2002, Scheme would

be applicable to the petitioner.

7. In order to appreciate and decide the contentions, we are

required to notice and consider Section 80 IA(4)(iii) and the

proviso thereto. Section 80 IA(4)(iii) reads as under:

"Section 80-IA. Deductions in respect of profits and gains from industrial undertakings or enterprises engaged in infrastructure development, etc. X X X (4) This section applies to--

x x x

(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 the period beginning on the 1st day of April, 1997 and ending on the 31st day of March, 2006:

Provided that in a case where an undertaking develops an industrial park on or after the 1st day of April, 1999 or a special economic zone on or after the 1st day of April, 2001 and transfers the operation and maintenance of such industrial park or such special economic zone, as the case may be, to another undertaking (hereafter in this section referred to 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:

Provided further that in the case of any undertaking which develops, develops and operates or maintains and operates an industrial park, the provisions of this clause shall have effect as if for the figures, letters and words "31st day of March, 2006", the figures, letters and words "[the 31st day of March, 2011]" had been substituted"

8. Section 80 IA was substituted by Finance Act, 1999.

Section 80 IA(1) provides that where gross total income of an

assessee includes profits and gains derived by an undertaking

or an enterprise from a business referred to in sub-Section 4, it

would be allowed a deduction of an amount equal to 100% of

profits and gains derived from the specified business for the

period stipulated. An undertaking which fulfils the requirements

of clause (iii) of sub-section 4 to Section 80 IA is entitled to the

said deduction. Clause (iii) stipulates that the undertaking which

develops; develops and operates; or maintains and operates an

industrial park or special economic zone qualifies for the said

deduction provided it is notified by the Central Government in

accordance with the scheme framed and notified by the Central

Government for the period beginning 1st April, 1997 and ending

on 31st March, 2006. For the sake of completeness, we may

record that the date 31st March, 2006 was substituted for the

date 31st March, 2002 by Finance Act, 2001 with effect from 1st

April, 2001.

9. The second proviso to the clause (iii) was

incorporated/introduced by Finance Act, 2006 with effect from 1st

April, 2007 and the said proviso at the time when it was

introduced was as under:

"Provided further that in the case of any undertaking which develops, develops and operates or maintains and operates an industrial park, the provisions of this clause shall have effect as if for the figures, letters and words "31st day of March, 2006", the figures, letters and words "31st day of March, 2009" had been substituted"

10. We may note here that the words "31st Day of March,

2009" were substituted with the words "31st Day of March, 2011"

vide Finance Act No. 2 of 2009 with retrospective effect from 1 st

April, 2009.

11. In exercise of powers conferred under sub-section 4 to

Section 80 IA, Ministry of Commerce and Industry had framed

2002, Scheme which was duly published in the Gazette of India

Extraordinary being S.O. No. 354(E). The 2002, Scheme

postulated two modes of grant of approval; (i)automatic approval

and (ii) non-automatic approval. The petitioner's case was not

covered by automatic approval under the 2002, Scheme and no

such claim is made in the petition. As noticed above, the

petitioner had filed an application dated 23rd September, 2006

under non-automatic approval mode. Non automatic application

under the 2002, Scheme was to be examined by the

Empowered Committee constituted under clause 7 of the 2002,

Scheme. Such applications were to be decided on case to case

basis.

12. It may be relevant to notice and reproduce clauses 3 and

9.1 of the 2002, Scheme, as these are relevant:

"3. Period of operation of the scheme:- This scheme shall be applicable for any undertaking which develops, develops and operates or maintains and operates an Industrial park for the period beginning on the 1 st day of April, 1997 and ending on the 31st day of March, 2006. In a case, where an undertaking develops an Industrial Park on or after the 1st day of April, 1999 and transfers the operation and maintenance of such Industrial Park to another undertaking (transferee undertaking), the benefits shall be allowed to such transferee undertaking for the remaining period in the ten consecutive assessment years in a manner as if the operation and maintenance were not so transferred to the transferee undertaking.

xxxx

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 Industrial Park."

13. The 2008, Scheme was published in the Gazette of India

Extraordinary and is dated 8th January, 2008. By another

Gazette Notification also dated 8th January, 2008, CBDT

substituted the existing Rule 18C of the Income Tax Rules,

1962, (1962, Rules) by a new Rule in exercise of powers under

Section 295 read with Section 80 IA(4)(iii) of the Act. The new

Rule 18C reads as under:

"18C.(1) The undertaking shall begin to develop, develop and operate or maintain and operate an industrial park any time during the period beginning on the 1st day of April, 2006, and ending on the 31st day of March, 2009.

(2) The undertaking and the Industrial Park shall be notified by the Central Government under the Industrial Park Scheme, 2008.

(3) The undertaking shall continue to fulfil the conditions envisaged in the Industrial Park Scheme, 2008."

14. The 2008, Scheme was formulated by the Ministry of

Finance, Department of Revenue, CBDT. The relevant clauses

of the said scheme, read as under:

"1. Short title, commencement and application.- xx x (2) It shall come into force on the date of its publication in the Official Gazette.

2. Definitions.-

x x x

(f) "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 thereby that all the required development activities for the project have been completed;

x x x

4. Criteria for approval.-

(1) The date of commencement of the Industrial Park should be on or after the 1st day of April 2006 and not later than 31st of March 2009;"

15. Before we deliberate and interpret the aforesaid provisions

and examine the contentions of the petitioner, one aspect may

be clarified. The petitioner does not dispute that they do not

meet the prescribed parameters stipulated in the 2008, Scheme

and do not satisfy the two conditions of the minimum

constructed area and the number of units as stipulated in the

2008, Scheme. Thus, for the petitioner to succeed in the

present writ petition, we have to hold that 2002, Scheme should

be applied and it is in this context that the petitioner has raised

the aforesaid four contentions.

16. Section 80 IA(4)(iii) postulates and requires that there

should be a scheme framed and notified by the Central

Government and the undertaking in question which develops;

develops and operates; or maintains and operates; an industrial

park or special economic zone should have been notified under

the said scheme. Clause (iii) to Section 80 IA(4), therefore,

requires a scheme which is framed and also notified by the

Central Government. This is a mandatory condition. In

compliance with the said requirement, the Central Government

had framed 2002, Scheme which was framed by the Ministry of

Commerce and Industries and thereafter the 2008, Scheme

which has been framed by Ministry of Finance, CBDT. Clause 3

of the 2002, Scheme is clear and categorical. The scheme shall

be applicable to an undertaking which develops; develops and

operates; or maintains or operates; an industrial park beginning

from 1st April, 1997 and ending on 31st March, 2006. The said

clause stipulates the beginning point and the ending point.

Clause 9(1) of the 2002, Scheme states that in case

commencement of industrial park gets delayed by more than

one year from the date indicated in the application, a fresh

approval was required to avail benefits under the 2002, Scheme.

17. In the present case, the petitioner had moved an

application to the Central Government for being notified under

clause (iii) to Section 80 IA(4) on 23rd September, 2006. On the

said date, the 2002, Scheme was not in operation and was not

applicable. As noticed above, the 2002, Scheme as notified and

published in the Gazette in Clause (3) stipulates that it shall

apply to any undertaking which develops; develops and

operates; or maintains and operates; an industrial park for the

period beginning on 1st April, 1997 and ending on 31st March,

2006. Clause 9(1) of the 2002, Scheme quoted above does

show that an application/approval could be granted in advance

also but the tax benefits under the Act could be availed of only

after the number of units indicated in the application were

located in the industrial park. In the present case, we are not

concerned with clause 9(1) of the 2002, Scheme, as the

petitioner had filed an application on 23rd September, 2006, i.e.,

after 31st March, 2006. Clause 9(1), therefore, does not help the

petitioner. Entitlement to deduction under Section 80 IA read

with 2002, Scheme predicates location of specified number of

units indicated in the application in the industrial park. In case

there was delay of more than one year from the date indicated in

the application, a fresh approval was required. The aforesaid

interpretation is in consonance with clause (iii) to Section 80

IA(4). The said clause gives primacy and accepts that an

undertaking which is notified in accordance with the scheme

framed and notified by the Central Government qualifies for the

said deduction. Thus, in the present case, when an application

was filed on 23rd September, 2006, there was no scheme in

place/operation, which had been framed and notified by the

Central Government. The 2002, Scheme had lapsed as it was

effective, notified and applicable upto 31st March, 2006. The

2002, Scheme was no longer in operation.

18. It is not possible to agree with contention of the petitioner

that the second proviso to Section 80 IA(4)(iii) substituting the

words/date "31st March, 2006" with "31st March, 2009" had the

effect of modifying or substituting the 2002, Scheme and the

effect thereof was that the 2002, Scheme continued to remain

operative at least till the 2008, Scheme was formulated and

notified. This is not what is indicated and stated in the second

proviso. The second proviso was separately added and the date

stated in Section 80 IA(4)(iii) was not substituted by the new

date, i.e., the date 31st March, 2006 was not substituted with the

date 31st March, 2009. The idea and purpose behind

incorporating the second proviso is clear that an undertaking

which develops; develops and operates; or maintains and

operates; an industrial park, as per the scheme framed and

notified by the Central Government at the relevant time shall be

entitled to the said deduction for the period ending 31st March,

2009. The benefit of the proviso would be given to an

undertaking which develops; develops and operates; or

maintains and operates; an industrial park in accordance with

the scheme framed and notified after 1st March, 2006 ending on

31st March, 2009 (the date now stand substituted by Finance Act

No. 2 of 2009 to 31st March, 2011).

19. In view of the aforesaid interpretation, the contention of the

petitioner that there is any conflict between clause (iii) to Section

80 IA(4) of the Act or 2008, Scheme has been given

retrospective effect must fail. As noticed above, there is no

conflict between Section 80 IA(4)(iii), 2002, Scheme and 2008,

Scheme. The 2002, Scheme was valid and in operation till 31st

March, 2006 and not thereafter. After 31st March, 2006 there

was no scheme which was in operation. The requirement of

Section 80 IA(4)(iii) is that a scheme should be framed and

gazetted and then only benefit can be claimed by an industrial

undertaking which gets notified under the scheme. If there was

no scheme in operation as the scheme had not been framed or

gazetted, no benefit can be availed of by an undertaking on the

basis of a prior scheme, the term and validity of which had come

to an end by efflux of time. We may add a caveat, that we are

not examining a case where an undertaking had filed an

application on or before 31st March, 2006 but the same was

disposed of after 31st March, 2006. This factum is extremely

relevant and has been noticed below to distinguish the judgment

of the Bombay High Court in Silver Land Developers (P)

Limited versus Empowered Committee, (2011) 16

Taxman.com 41(Bom.).

20. Thus, for some time after 1st April, 2006, there was no

scheme which was framed and had been gazetted. A new

scheme was framed and gazetted only on 8th January, 2008 and

this scheme has been implemented with effect from 1st April,

2006. The Central Government can be criticised for this long

delay in formulating and notifying the scheme as it is contrary to

the principles of good governance and is vulnerable to criticism

on the ground of creating uncertainty, but this by itself in the

factual matrix of the present case and the language of Section

80 IA(4)(iii) cannot and is not a ground to hold that the 2002,

Scheme continued to be in operation till 8th January, 2008. The

legal position, as stated above, is that with effect from 1st April,

2006 there was no scheme which had been framed and was

gazetted. Therefore, no undertaking could take advantage or

benefit of Section 80 IA(4)(iii) of the Act. A new scheme was

formulated on 8th January, 2008 and was made applicable with

effect from 1st April, 2006. The retrospective effect is to give and

confer benefit to undertakings covered by the 2008, Scheme.

Thus, no benefit has been withdrawn by giving retrospective

effect to the 2008, Scheme. Advantage has been conferred on

the undertakings, which otherwise they would not have derived

but for the 2008, Scheme. In these circumstances, we are not

required to deal with the other contentions raised by the

petitioner or the judgments relied upon by the petitioner, viz.,

Pournami Oil Mills versus State of Kerala, [1987] 165 ITR 57

(SC), Sales Tax Officer versus K.I. Abraham, (1967) 3 SCR

518, Second Income Tax Officer versus M.C.T. Trust, (1976)

102 ITR 138 (Mad), Corporation Bank versus Sarawati

Abharawsala, (2009) 1 SCC 540, Bakul Cashew Co. versus

STO, (1986) 159 ITR 565 (SC) and Income Tax Officer versus

Ponnoose (M.C.), (1970) 75 ITR 174 (SC). In the factual matrix

of the present case, the aforesaid judgments are not at all

applicable.

21. The factual position in Silver Land Developers (P)

Limited (supra) was different. In the said case, the petitioner

therein had applied for grant of approval under the 2002,

Scheme on 27th December, 2005 and the approval was granted

by the Ministry of Commerce and Industries on 24th July, 2006.

In the application, the expected date of commencement of

commercial park was stated as 15th March, 2006 and relying

upon clause 9(1) of the 2002, Scheme, it was the case of the

petitioner therein that the date of commencement was

extendable upto 15th March, 2007. The petitioner therein had

submitted an application for grant of occupancy certificate on 8th

March, 2007 and the occupancy certificate was issued on 2nd

June, 2007 by the Municipal Corporation of Greater Mumbai.

The said Municipal Corporation had clarified and informed the

Empowered Committee that the industrial park was ready and fit

for occupation on 8th March, 2007. In these circumstances, the

Division Bench of the Bombay High Court has held that the

2002, Scheme was applicable and the finding of the Empowered

Committee that the 2008, Scheme was applicable should be

rejected. In paragraph 18 of the said judgment, it has been

observed by the Bombay High Court as under:-

"18. The rival submissions now fall for determination. The object and purpose of Section 80IA is to grant a deduction, while computing the total income of the assessee of an amount equal to hundred per cent of the profits and gains derived from an eligible business for ten consecutive assessment years out of fifteen years beginning from the year in which inter alia the assessee develops an industrial park or facility. The eligible businesses to which the provisions are attracted are specified in sub-section (4) of Section 80IA. The object and purpose of Section 80IA was to provide an impetus to the growth of infrastructure in the country. Clause (iii) of sub-section (4) of Section 80IA makes eligible an undertaking which (i) develops; or (ii) develops and operates; or (iii) maintains and operates an industrial park notified by the Central Government in accordance

with the Scheme framed for the period beginning on 1 April 1997 and ending on 31 March 2006. An undertaking is eligible if it has either developed; or developed and operated; or operated and maintained an industrial park in accordance with the Scheme. The first aspect of the matter which needs emphasis is that clause (iii) of Section 80IA (4) requires that the Scheme has to be notified for the period between 1st April 1997 and 31 March 2006. The statutory provision does not contain a specific requirement to the effect that the industrial park had to be developed on or before 31 March 2006. The requirement is that the industrial park has to be developed in accordance with the Scheme framed by the Central Government for the period between 1 April 1997 and 31 March 2006. The Scheme which was framed by the Central Government stipulated the requirement for the grant of approval in those cases which did not fall in the automatic approval route. Para 3 of the Scheme lays down the period of operation of the Scheme. Under Para 3 the Scheme is to be applicable to any undertaking which develops, develops and operates or maintains and operates an Industrial Park for the period beginning on 1 April 1997 and ending on 31 March 2006. Therefore, undoubtedly it was as a result of Para 3 that a requirement to the effect that the undertaking should develop an industrial park for the period commencing on 1 April 1997 and ending on 31 March 2006 came to be introduced. The Scheme, however, stipulated in Para 9 (1) that in case the commencement of the industrial park is delayed by more than one year from the date indicated in the application, a fresh approval would have to be obtained to get the benefit of the Act. The last sentence of Para 9 (1) then clarified that this condition would also apply to the existing approvals under the Industrial Park Scheme which envisaged the commissioning of the park, latest by March 31, 2002. Para 9 (1) took notice of the fact that approvals were granted under the previous Scheme which envisaged the commissioning of parks by 31 March 2002. The new Scheme was notified on 1 April 2002. If 31 March 2002 was to be treated as an absolute cutoff then it is unlikely that the last sentence of Para 9(1) would provide that the condition which was spelt out in the said Para would also apply to existing approvals. Consequently Para 9 of the Scheme did contemplate situations where the commencement of an industrial park was delayed by more than one year from the date indicated in the application. The Scheme provides that in such cases, a fresh approval would have to be obtained in order to obtain the benefits under the Act."

22. The aforesaid observations are in consonance with our

findings and interpretation given to Section 80 IA(4)(iii), 2002,

Scheme and 2008, Scheme.

23. Learned counsel for the petitioner had drawn our attention

to paragraph 24 of the said judgment which reads as under:-

"24. The attention of the Court has also been drawn to the fact that in fifty cases, approvals have been granted under the Scheme of 2002 beyond 31 March 2006 and as a matter of fact as late as in April 2007. Learned Counsel on behalf of the Revenue has submitted that the Department would seek to revoke those permissions which have been granted in other cases. Be that as it may, for the reasons indicated earlier we have come to the conclusion that the basis on which the Empowered Committee has rejected the application filed by the Petitioners is contrary to law and would have to be set aside."

24. The aforesaid paragraph does not assist or help the

contention of the petitioner. What is stated in the said paragraph

is that approvals were granted under the 2002, Scheme even

after 31st March, 2006 and as late as in April, 2007. The said

paragraph does not indicate or state the date on which the

applications were filed and whether the applications were

received before 31st March, 2006. During the course of hearing

before us, the petitioners were asked whether they had

contended or claimed that applications received after 31st March,

2006 have been processed and approved under the 2002,

Scheme. It was stated that there was no such averment or plea,

but it was for the respondent to explain and state. Before us, a

list of all pending applications as on 3rd June, 2008 downloaded

from the website of the respondent has been filed. The said

details do not show that any applications filed after 31st March,

2006 had been granted approval under the 2002, Scheme.

25. The plea of promissory estoppel has no merit. The

petitioner claims that they had started development of the

industrial park after obtaining consent/commencement certificate

in 2005. However, they filed an application only on 23rd

September, 2006. By that time, the date 31st March, 2006

mentioned in the Section 80 IA(4)(iii) and the 2002, Scheme had

lapsed. The petitioners could have claimed benefit under the

said Section only if they were covered by a new Scheme or in

case the Government had decided to extend the 2002, Scheme.

As already noticed above, the petitioners were not covered by

the 2008, Scheme and the 2002, Scheme was not extended

after 31st March, 2006. In fact, the plea based on promissory

estoppel has to fail because the petitioner has not pleaded or

stated in what manner and how they had changed their position

to their detriment in view of the alleged promise held out/made.

The statute in the present case was clear that there should be a

scheme which was framed and gazetted and an undertaking

should be notified under the said scheme. The time period or

the last date was specified i.e. 31st March, 2006. The petitioner

did not apply for notification before the cut of date, i.e., 31st

March, 2006 on which date the 2002, Scheme came to an end.

It was submitted on behalf of the petitioner that the doctrine of

promissory estoppel should be applied on the basis of

correspondence which was exchanged between the petitioner

and the Ministry of Commerce and Industries after the

application for approval was filed on 23rd September, 2006. By

this correspondence, the said Ministry had called for certain

details and information which was furnished and given. We do

not think doctrine of promissory estoppel can be applied on the

basis of the said letters. No promise was held out in the said

letters. Information and details were called for and it was stated

that the matter would be placed before the Empowered

Committee after full details were furnished. No promise is

decipherable. The respondent had not held out or promised that

the 2002, Scheme shall be extended. The aforesaid

correspondence does not make out a case and does not show

that any promise was held out and pursuant to the said promise

the petitioner had changed their position. As noticed above, the

2008, Scheme was notified on 8th January, 2008 and during the

period 1st April, 2006 till 8th January, 2008 no scheme was in

operation as the same had not been framed and gazetted. This

is the statutory requirement and is mandated by Section 80

IA(4). In these circumstances, the Ministry of Commerce and

Industries did not reject the application but had asked for certain

information and details before the matter was placed before the

Empowered Committee because there was uncertainty and

ambiguity. Doubt/uncertainty is not a promise.

26. The fact noticed above indicate that the petitioner had filed

the application for registration on 23rd September, 2006 after the

2002, Scheme had come to an end, as the scheme was

applicable only upto 31st March, 2006. The industrial park set up

by them was not operational/functional by 31st March, 2006. It

became operational on a subsequent date. The completion

certificate for the said park issued by the Pune Municipal

Corporation is dated 29th August, 2007. The petitioner cannot,

therefore, claim notification under the 2002, Scheme.

27. We may note that the policy dated 8th January, 2008 has

not been challenged before us on merits. The ground of

challenge before us was limited to the retrospective operation

and to the extent that there is conflict between the 2008 scheme

and the parent Act, i.e., Section 80 IA (4) as the proviso had

extended the period of the 2002 policy. We have rejected these

contentions. A policy decision, though not beyond the scope

and power of judicial review, can be interfered with when it is

wholly irrational or inconsistent with the express or implied

provisions of the statute. Government is normally free to modify,

amend or withdraw fiscal benefits from time to time and they

have right to implement the policy decisions. Sometimes, there

can be radical difference of opinion on views but that cannot be

a ground to set aside/quash a policy decision. A policy decision

is quashed when there is something overwhelming and it is

apparent that the decision is completely irrational or as stated

above is inconsistent with the express or implied provisions of

the statute.

28. In view of the aforesaid position, we do not find any merit

in the present writ petitions and the same are dismissed. The

interim order is vacated. Liberty is, however, granted to the

petitioner to file an appeal against the assessment order dated

22nd October, 2010 before the appellate authority on merits, but

the petitioner would not be entitled to question the validity of the

letters/orders dated 28th July, 2009 and 8th October, 2008 in the

appellate proceedings or claim that the petitioner has been

registered under Section 80 IA(4)(iii) of the Act. In the facts and

circumstances of the case, there will be no order as to costs.

-sd-

(SANJIV KHANNA) JUDGE

-sd-

( R.V. EASWAR ) JUDGE

24th JANUARY, 2012 VKR