JUDGMENT 1. - This writ petition has been filed by the petitioner-assessee being aggrieved of the order dated January 27, 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 the assessment year 2008-09 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 2008-09, the admissions by the petitioner trust were not made on the basis of the merit list/waiting list prepared on the basis of the 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, Abhishek Sain v. Raj. University of Health Science (SBCWP No. 10858 of 2008) was filed before the High Court and the learned single judge of this court, vide order dated March 18, 2009, held that the Medical Council of India Regulations were mandatory and have to be complied with and the admissions should have been given on the basis of the common entrance test of RPMT-2008 and the merit of the common entrance test RPMT-2008 could not be sacrificed even in the aided institutions for which admission to 85 per cent. of 150 seats have been made and, accordingly, the learned single judge declared the admissions made by the petitioner trust against 85 per cent. of the seats as illegal. The Division Bench, an appeal filed by the petitioner trust, namely, D. B. Civil Special Appeal (Writ) No. 241 of 2009 also failed and a Division Bench, vide its judgment dated September 3, 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 of 2009 and there the matter is still pending before the hon'ble Supreme Court. 2. Learned counsel for the petitioner, Mr. 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 January 27, 2010. 3. Learned counsel for the petitioner also brought to the notice of the court that for subsequent years, i.e., the assessment year 2010-11 and onwards, the same authority, i.e., the Chief Commissioner of Income-tax, Udaipur, has granted such approval under section 10(23C) of the Act, vide order dated January 17, 2011, a copy of which has been placed on record along with the additional affidavit of the petitioner. 4. On the other hand, learned counsel, Mr. K. K. Bissa, appearing for the respondent Department, submitted that in the subsequent years since no such illegal admission procedure was found out against the petitioner trust, the necessary approval was granted for such subsequent years, vide order dated January 17, 2011. He submitted that since illegality in admission was committed by the petitioner trust in the year 2008, the respondent authority could even infer a profit motive in the same and could deny such approval under section 10(23C) of the Act and, therefore, he has rightly passed the order dated January 27, 2010. 5. He submitted that since illegality in admission was committed by the petitioner trust in the year 2008, the respondent authority could even infer a profit motive in the same and could deny such approval under section 10(23C) of the Act and, therefore, he has rightly passed the order dated January 27, 2010. 5. Having heard the learned counsel, this court is of the opinion that since the question of legality of the admissions made by the petitioner trust is still a matter sub judice before the apex court, of course, the Rajasthan High Court has held against the petitioner trust that such admissions were not made in accordance with law, vide judgment of the learned single judge as aforesaid and affirmed by the Division Bench, it cannot be said finally yet that the petitioner has committed any such illegality and no such opinion could be formed by the learned Chief Commissioner of Income-tax so long as the matter is pending before the Supreme Court of India and is not decided against the petitioner trust. 6. Right to litigate a particular issue in the court of law is a legal right of any institution or a charitable trust, who is seeking exemption from Income-tax for which sanction is required by the competent authority within the parameters like no profit motive, or object of education of the trust, etc., laid down under section 10(23C) of the Act which are relevant and not the admission procedure undertaken by the petitioner trust. Nexus between the profit motive and the alleged illegal admission is too remote and cannot be presumed without any other adverse material on record against the assessee, for drawing such adverse inference. The learned Chief Commissioner of Income-tax, vide order dated January 27, 2010, has only assigned one single reason as stated above to deny the approval under section 10(23C) of the Act. The relevant portion of the impugned order dated January 27, 2010 is reproduced hereunder for ready reference : "11. It is also apparent that the trust is not satisfying essential condition for exemption under section 10(23C)(vi) and (via). As per the relevant clause, any income received by any person on behalf of any university or other educational purposes. Moreover, the income earned should be applied wholly and exclusively to the objects for which it is established, i.e., for educational purpose. As per the relevant clause, any income received by any person on behalf of any university or other educational purposes. Moreover, the income earned should be applied wholly and exclusively to the objects for which it is established, i.e., for educational purpose. In the institution's case, the hon'ble High Court has held that the admissions made for the academic year 2008-09 were illegal. The purpose of education would not be served, if the education is for students who have been illegally admitted. The purpose of education as contemplated in the section would be served only if the students have been legally admitted and not otherwise. The spending of funds on education of students who have been admitted illegally will not amount to application of income for the purpose of education. In the trust's case, neither the condition regarding existence for the purpose of education nor the application of funds for the objects, are being fulfilled. 12. Keeping in view the above discussion and the decision of the hon'ble High Court, I hereby reject the trust's application for approval under section 10(23C)(vi) and (via) for the assessment year 2008-09 onwards. (Sd.) . . . Mukesh Bhanti, Chief Commissioner of Income-tax, Udaipur." 7. The subsequent order granting such approval passed on January 17, 2011, subject to usual conditions reads as under : "In exercise of the powers conferred on me by sub-clause (vi) of clause (23C) of section 10 of the Income-tax Act, 1961 (43 of 1961), read with rule 2CA of the Income-tax Rules, 1962, I, the Chief Commissioner of Income-tax, Udaipur, hereby accord approval to M/s. Geetan jali University Trust, Udaipur (PAN : AAATG9525E) for the purpose of the said section for the assessment year 2010-11 and onwards subject to the conditions mentioned hereunder :" 8. If the alleged illegal admissions made by the petitioner trust in the year 2008-09 could be a valid criteria or relevant consideration for denying the approval under section 10(23C) of the Act, such alleged illegal admissions continued in the subsequent years also as those students continued to be in the college for subsequent years also and the same authority on the same set of facts, once denied the approval and subsequently granted such approval for the subsequent years. This incongruity in the two orders itself repels the argument of learned counsel for the respondent-Revenue. 9. This incongruity in the two orders itself repels the argument of learned counsel for the respondent-Revenue. 9. In the opinion of this court also, this ground alone as such could not be relevant and a valid basis for refusing the approval under section 10(23C) of the Act to the petitioner trust especially since the matter is still pending before the hon'ble Supreme Court. Of course, the authority concerned is free to apply his mind and take into account the relevant consideration while deciding the case of the petitioner trust under section 10(23C) of the Act as laid down in the provisions of section 10(23C) itself and if there are other grounds made out of rejection of its case under section 10(23C) of the Act or say if the hon'ble Supreme Court of India also holds against the petitioner, the authority concerned may be justified in denying the exemption under section 10(23C) of the Act. 10. Consequently, the present writ petition is allowed and setting aside the impugned order annexure 16 dated January 27, 2010, passed by the learned Chief Commissioner of Income-tax under section 10(23C) of the Act, the said authority is left free to decide afresh the said proceedings for the assessment year 2008-09 and onwards till the assessment year 2010-11 by passing fresh speaking order under section 10(23C) of the Act for the assessment year 2008-09 to the assessment year 2010-11 after affording opportunity of hearing to the petitioner trust. No order as to costs. *******