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2023 (3) TMI 52 - HC - Income TaxReopening of assessment u/s 147 - validity of order u/s 148A(d) - Petitioner was unable to prove that it is substantially financed by the Government in order to claim exemption under Section 10(23C)(iiiab - HELD THAT:- When the respondent themselves have accepted that the petitioner is a Section 10(23C)(iiiab) institution entitled for exemption in respect of the subsequent Assessment Years 2016-17, 2017-18 and 2018-19, they cannot now contend that the petitioner has not been able to establish that they are an educational institution solely for the purpose of education and not for the purpose of making profits. Admittedly, the petitioner is a Deemed University in existence from 1957 onwards which is catering to the needs of several lakhs of students and is having a huge infrastructure. Therefore, the reasons given by the respondent for passing the order under Section 148A(d) are arbitrary and illegal and has been passed by total non application of mind. Here is the case, where, by total non application of mind to the fact that in respect of subsequent Assessment Years 2016-17, 2017-18, 2018-19, it has been accepted by the respondent that the petitioner is a Section 10(23C)(iiiab) institution and is entitled for exemption, the impugned Assessment Order has been passed. However, the re-opening of the assessment pertains to the Assessment Year 2015-16, which is arbitrary and illegal. Therefore, the Anshul Jain decision [2022 (10) TMI 3 - SC ORDER] relied by the learned Standing counsel for the respondent has no applicability for the facts of the instant case. As per judgment Red Chilli International Sales [2023 (1) TMI 674 - SC ORDER] it is very clear that this Court is having the power to consider a challenge being made to an order passed under Section 148 A(b) of the Income Tax Act. For the foregoing reasons, the impugned order passed u/s 148A(d) and the consequential notice have to be quashed and the writ petition will have to be allowed. Decided in favour of assessee.
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