INTRODUCTION
Maharashtra was one of the first states in India to devise an Information Technology and Information Technology Enabled Services Policy in 1998. Thereafter, the policy was amended in 2003, 2009 and 2015. The Information Technology and Information Technology Enabled Services Policy of Maharashtra State-2023 (“2023 Policy”) was introduced by the Government of Maharashtra vide its resolution dated June 27, 2023[1] and it superseded Maharashtra’s IT and ITES Policy of 2015 (“2015 Policy”). The 2023 Policy aims to make the State of Maharashtra a global Information Technology (“IT”) and Information Technology Enabled Services (“ITES”) destination and the technology capital of India. The 2023 Policy is valid for a period of five years from June 27, 2023 or until a new policy is released.
The key highlights of the 2023 Policy pertaining to IT/ITES units, IITTs (defined below) and data centers are as under:
1.DEFINITIONS
Under the 2023 Policy, various key definitions including the following have been introduced:
(a) IT Park: standalone building/ premises having built up area (“BUA”) of more than 20,000 sq. ft. with or without additional FSI, TDR.
(b) Data Center Developer: an entity responsible for developing and maintaining the dedicated land or build facility, along with relevant infrastructure provisions. The developer also needs to make proportionate investment in data center servers/ equipment.
(c) Data Center Operator: an entity responsible for managing and operating end to end data center operations.
(d) Data Center Park: dedicated data processing zone/ building, along with relevant infrastructure and regulatory environment for housing a mix of data center equipment of single or different entities to serve the needs of computation, storage, networking, and provision of wide range of data related services.
Compared to the 2015 Policy, the definition of ITES has been broadened to include activities such as co-working spaces/ plug and play infrastructure, IT related high-tech training centers, etc. Further, the 2023 Policy has also introduced a comprehensive list of types of ITES activities allowed in IT Parks which, inter alia, include audio/ video product design, R&D laboratories, projection planning and management, etc.
2.COMMON INCENTIVES:
2.1 Guidelines for stamp duty exemption:
2.1.1 Criteria:
(a) An IT & ITES unit, which is in production/ operation and shifting from one location to another and has already availed stamp duty exemption earlier, will not be eligible for stamp duty exemption under the 2023 Policy;
(b) If an existing unit makes a minimum 25% additional fixed capital investment on or after commencement of the 2023 Policy in IT & ITES activity, it will be eligible for stamp duty exemption;
(c) IT & ITES units will be eligible to avail stamp duty exemptions only for the premises, which has valid commencement certificate/ RERA approval from the concerned planning authority/ competent authority.
2.1.2 Classification of areas for claiming stamp duty exemption:
The 2023 Policy divides areas for which exemptions are available into two broad categories: (i) Zone- I (being areas including Municipal Corporation’s in Mumbai and Pune Metropolitan Region) and (ii) areas other than Zone- I areas (being areas other than those in Zone I & No Industry Districts, Aspirational Districts & Naxalite affected areas).
2.1.3 Exemption:
2.1.4 Conditions for availing stamp duty exemptions:
(a) The units defaulting in starting operation/ work for which the concession/ waiver of stamp duty has been availed or breaching any condition of the 2023 Policy will be liable to pay stamp duty and penalty as if they were not given waiver from the first day itself; and
(b) Submission of NOC from the Department of Industries, to ensure that concerned unit has not received stamp duty waiver under any other policy/ scheme of the Government.
2.2 Setting up IT & ITES units in any zone:
IT/ ITES units, IITTs (defined below) and data centers will be allowed to be set up in any zone (including residential, no-development zones and green zone, etc.).
2.3 Mahiti Portal: Single Integrated IT Portal
The State will create a unified and integrated single window platform which will, inter alia, include (i) registration and application for IT & ITES parks, units and data centers; (ii) applications for LOI and de-novo letter, (iii) information on 2023 Policy and subsequent government resolutions of the 2023 Policy; and (iv) applications for incentives to be availed under the 2023 Policy.
3.DEVELOPMENT INCENTIVES
3.1 Additional FSI for IT Parks
Additional Floor Space Index (“FSI”) limit to all IT Parks shall be applicable as per the below table or as per local Development Control Regulations (“DCR”) norms, whichever is higher, excluding agricultural zone, non-development zone or any other special zone, where maximum additional floor space index shall remain applicable as per the prevailing DCR:
| Sr. No. | Minimum Road Width | Maximum Permissible FSI in Greater Mumbai Region | Maximum Permissible FSI in rest of Maharashtra |
| 1. | 12 m | Up to 3 | Up to 3 |
| 2. | 18 m | Up to 4 | Up to 3.5 |
| 3. | 27 m | Up to 5 | Up to 4 |
3.2 Premium for additional FSI for public/private IT Parks in Maharashtra
3.3 Permissible land use:
IT Parks are permitted mixed use as per the following percentage:
3.4 Penalty for use of BUA for non-IT use
A per day penalty of 0.3% (of the prevailing ready reckoner value of the BUA used for non-IT & ITES) shall be levied on utilisation of the BUA in the private IT park or private data center or existing data center/IT Parks (having availed the benefit of additional FSI), for non-ITES/commercial activities/any other activity not permitted as per the 2023 Policy. The penalty can be recovered from the date of issuance of the occupancy certificate till the date the non-compliance continues. The 2023 Policy (unlike the 2015 Policy) specifies that the penalty must be imposed on the end user/ owner of the unit. Further, it also specifies that the promoter/ developer of data center/ IT parks will not be allowed to sell/lease the BUA reserved for data center/IT/ITES activity to non-data center/IT/ITES user in any case.
4.ESTABLISHMENT OF INTEGRATED INFORMATION TECHNOLOGY TOWNSHIP
4.1 The 2023 Policy has reduced the threshold of the minimum area to be notified as Integrated Information Technology Township (“IITTs”) from 25 acres (under the 2015 Policy) to 10 acres of contiguous land. Further, under 2023 Policy, the bifurcation of permissible land use is 50% for IT/ITES use and 50% for usage without any restriction as per prevailing norms, as opposed to the 2015 Policy, which provided for 60% for IT/ITES use and 40% for support services and other commercial activities.
4.2 The period for completion of the IITT project shall be 7 ½ years if the area for IITTs is between 10 acres and 25 acres; and 10 years if the area is more than 25 acres. In case of delay, the extension will be considered subject to approval of the Committee constituted under the 2023 Policy.
5.PROMOTION OF DATA CENTER
The 2023 Policy provides for various fiscal incentives/ exemptions for data centers which, inter alia, include:
(a) 100% stamp duty exemption for purchasing land/ premises for setting up a new data center and for its expansion as well as hypothecation, pawn, pledge, deposit of title deeds, conveyance, lease assignment of lease, leave and license agreement, merger, de-merger and reconstruction;
(b) Permanent exemption for payment of electricity duty shall be granted to new and existing registered data center units;
(c) While the 2015 Policy granted power tariff subsidy for three years at INR 1 per unit, the 2023 Policy grants subsidy of INR 1 per unit for five years for new data center units located in areas other than Zone-I;
(d) Dial – before dig policy to protect data centers’ network of underground lines and cables and ensure the safety of those working around the infrastructure; and
(e) The 2023 Policy grants infrastructure status to data centers on par with sectors such as railways, roadways, and power to enable the industry to avail benefits such as long-term credit from lenders.
6.INTRODUCTION OF DE-NOVO LETTER
For supporting unregistered IT Parks or private IT Parks with incomplete construction or IT Parks where letter of intent (“LOI”) has expired, the 2023 Policy has introduced a new concept of obtaining de-novo LOI as under:
(a) Construction of the IT park has been completed but it is an unregistered park-
(i) A de-novo LOI for three years shall be given without charging differential premium to private IT parks that (i) have been in operation for more than the stipulated period and have completed construction; and (ii) the developer has obtained the Certificate of Occupancy/ BCC from the relevant Planning Authority, however the LOI has expired.
(ii) For those IT parks who have not applied for de-novo LOI till date, this provision would apply from the date of effect of the 2015 Policy. However, during this period, 50% BUA should have been occupied by IT/ ITES units.
(b) Private IT Parks with incomplete construction:-
(i) A de-novo LOI will be allowed by paying 30% differential premium based on incremental ready reckoner rates for IT Parks during the relevant period in case the developer of the IT park has not completed the private IT park within the stipulated period.
(ii) It is to be noted that the new de novo LOI will be granted on merits of the individual proposal initially for three years.
7.CONCLUSION
The 2023 Policy has evolved in consonance with global growth trends, vision of the Maharashtra government, and to boost the performance of the IT/ITES sector. The key strategic drivers of the 2023 Policy, including (i) unified single window system for all IT & ITES segments; (ii) dispersal of IT & ITES segments to all parts of Maharashtra; (iii) provision of additional FSI for IT Parks and (iv) various fiscal/ non-fiscal benefits being provided to IT/ ITES units and data centers, will pave the way for positioning Maharashtra as the technology capital of India.
For further information, please contact:
Jinal Mehta, Partner, Cyril Amarchand Mangaldas
jinal.mehta@cyrilshroff.com
[1] bearing reference no. ITP-2021/CR-170/Ind-2
[2] Including 2% BUA for incubation centers
[3] Including all commercial and residential activities except polluting activities
