JUDGMENT
By the Court
This comes on application filed by the petitioner for the amendment of the writ petition. The petitioner wants to incorporate the prayer to challenge the order of the Commissioner (Appeals) dated 2-11-2001. It is admitted by the learned counsel that an appeal has been preferred against the said order before Tribunal and the same is pending.
It is submitted by the learned counsel since the petitioner has challenged the constitutional validity of proviso to section 234C(1) of the Income Tax Act, 1961. It has become necessary to challenge the order of the Commissioner (Appeals) as well.
2. In our view the amendment cannot be granted, as challenge to the order of Commissioner (Appeals) will amount to permitting to bypass the statutory remedy of appeal before the Tribunal. Further, it is submitted by the learned counsel that an appeal has already been preferred and the same is pending before the Tribunal. If it is so in case the Tribunal decides the case against the petitioner. He will have a further remedy under section 260A of the Income Tax Act before this court. It is submitted by Mr. Johari that in the instant writ petition he has challenged the validity of the proviso to section 234C(1) of the Act of 1961, and as such it is expedient that the entire matter on merit is also heard by this court. We are unable to agree with the submission of the learned counsel. On the contrary the petitioner can challenge the validity of the proviso to section 234(C)(1) of the Act after the decision of the Tribunal. Consequently we feel that there is no purpose of keeping this writ petition pending. We dismiss this writ petition without prejudice for the rights and contention of the petitioner on merit of the case as well as the challenge to the proviso to section 234C(1) of the Act of 1961. The challenge to the validity of the said provision is kept open. It will be open for the petitioner to challenge the same after the decision of the Tribunal if so advised.
2. In our view the amendment cannot be granted, as challenge to the order of Commissioner (Appeals) will amount to permitting to bypass the statutory remedy of appeal before the Tribunal. Further, it is submitted by the learned counsel that an appeal has already been preferred and the same is pending before the Tribunal. If it is so in case the Tribunal decides the case against the petitioner. He will have a further remedy under section 260A of the Income Tax Act before this court. It is submitted by Mr. Johari that in the instant writ petition he has challenged the validity of the proviso to section 234C(1) of the Act of 1961, and as such it is expedient that the entire matter on merit is also heard by this court. We are unable to agree with the submission of the learned counsel. On the contrary the petitioner can challenge the validity of the proviso to section 234(C)(1) of the Act after the decision of the Tribunal. Consequently we feel that there is no purpose of keeping this writ petition pending. We dismiss this writ petition without prejudice for the rights and contention of the petitioner on merit of the case as well as the challenge to the proviso to section 234C(1) of the Act of 1961. The challenge to the validity of the said provision is kept open. It will be open for the petitioner to challenge the same after the decision of the Tribunal if so advised.
OPEN
