The Ministry of Commerce and Industry by a notification dated December 6, 2023 (“SEZ Notification”) has amended the Special Economic Zones Rules, 2006 to introduce a new Rule 11B paving the way for use of portions of the built-up area in an Information Technology or Information Technology Enabled Services Special Economic Zones (“IT/ITES SEZs”) by non-SEZ businesses engaged only in Information Technology or Information Technology Enabled Services (“IT/ITES”). This amendment enables non-SEZ IT/ITES businesses to operate from a demarcated non-processing area of an IT/ITES SEZ, without de-notification of special economic zone (“SEZ”) under the SEZ laws.
Key aspects for consideration:
- The application for demarcation must be filed by developer of the IT/ITES SEZ with the Board of Approval.
- The demarcated non-processing area can only be used for setting up and operations of businesses engaged in IT / ITES on such terms and conditions as may be specified by the Board of Approval.
- The demarcated non-processing area should comprise of an entire floor and not part of a floor of the built-up area.
- Appropriate access control mechanisms are required to be in place for the SEZ space and the demarcated non-processing area for adequate screening of movement of persons as well of goods.
- Permission for demarcation is conditional upon repayment (without interest) by the developer of the IT/ITES SEZ of the tax benefits attributable to such demarcated non-processing area and tax benefits already availed for creation of social or commercial infrastructure and other facilities, if proposed to be used by both the IT/ITES SEZ and the IT/ITES businesses engaged in the non-processing area.
- Post demarcation of the non-processing area for IT/ITES businesses, the processing area cannot be reduced to less than 50% of the total area or the minimum built-up processing area prescribed for cities as per the categorisation under the SEZ Rules, 2006. In large cities, the size of the built-up processing area of the SEZ post demarcation cannot fall below 50,000 square meters.
- IT/ITES businesses located in such demarcated non-processing areas are not eligible for any rights or facilities extended to the SEZ units. They are to be treated at par with a business operating in a domestic tariff area.
- No tax or duty benefit is available on the operation and maintenance of common infrastructure and facilities of the entire SEZ (and not merely in the proportion that the non-processing area bears to the aggregate of the processing and non-processing areas).