- (1.) This writ petition has been filed by the petitioner assessee being aggrieved of the order dated 27/1/2010 passed by the Chief Commissioner of Income Tax, Udaipur under Section 10(23C) of the Income Tax Act, 1961 rejecting the application of the petitioner Trust for exemption from tax for Assessment Year 2008-2009 in prescribed Form No. 56D. The petitioner Trust runs a medical college with attached hospital of 450 beds and imparts such education to 150 students of MBBS Course besides running the colleges of Pharmaceutical, Physiotherapy and Nursing having separate intake of students. During the relevant year 2008-2009, the admissions by the petitioner Trust were not made on the basis of merit list/waiting list prepared on the basis of RPMT-2008 Examination, which system has been approved by the Medical Council of India and Rajasthan University. Against such admissions made by the petitioner Trust, a writ petition, namely; SBCWP No.10858/2008 -Abhishek Sain & Ors. vs. Raj. University of Health Sc. & Ors. was filed before the High Court & learned Single Judge of this Court vide order dated 18/3/2009 held that Medical Council of India Regulations were mandatory and have to be complied with and admissions should have been given on the basis of Common Entrance Test of RPMT - 2008 and merit of Common Entrance Test RPMT - 2008 could not sacrificed even in the aided institutions for which admission to 85% of 150 seats have been made and accordingly the learned Single Judge declared the admissions made by the petitioner Trust against 85% of the seats as illegal. The Division Bench appeal filed by the petitioner Trust, namely DB Civil Special Appeal (Writ) No. 241/2009 also failed and Division Bench vide its judgment dated 3/9/2009 affirmed the decision of learned Single Judge, against which the petitioner Trust is said to have approached the Apex Court by filing Special Leave Petition, namely; SLP (Civil) No. 23763/2009 and there the matter is still pending before the Hon'ble Supreme Court.
(2.) Learned counsel for the petitioner, Mr. Vikas Balia urged that the right to litigate and contest in courts of law that the admissions were rightly and legally made by the petitioner Trust cannot be curtailed or shut in indirect manner by denying the exemption from income tax under Section 10(23C) of the Act for which the periodical sanction from the Chief Commissioner of Income Tax was required. He submitted that according to the petitioner Trust, such admissions were legally made and merely because some students challenged the admissions, which litigation is pending before the Apex court as of now, it cannot be said that petitioner was not running the educational institution for educational purposes without profit motive as per the provisions of Section 10(23C) of the Act. He submitted that this is the only reason assigned by the Chief Commissioner of Income Tax in the impugned order dated 27/1/2010.
(3.) Learned counsel for the petitioner also brought to the notice of the court that for subsequent years i.e. Assessment Year 2010-2011 and onwards, same authority i.e. Chief Commissioner of Income Tax, Udaipur has granted such approval under Section 10(23C) of the Act vide order dated 17/1/2011, a copy of which has been placed on record along with the additional affidavit of the petitioner.;