- (1.) 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 of Income-tax (Appeals), dated November 1, 2001. It is admitted by learned counsel that an appeal has been preferred against the said order before the Income-tax Appellate Tribunal and the same is pending.
(2.) IT is submitted by learned counsel that since the petitioner has challenged the constitutional validity of a proviso to Section 234C(1) of the Income-tax Act, 1961, it has become necessary to challenge the order of the Commissioner of Income-tax (Appeals) as well. In our view the amendment cannot be granted, as challenge to the order of the Commissioner of Income-tax (Appeals) will amount to permitting to bypass the statutory remedy of appeal before the Income-tax Appellate Tribunal. Further, it is submitted by learned counsel that an appeal has already been preferred and the same is pending before the Income-tax Appellate Tribunal. If it is so in case the Appellate 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 the merits is also heard by this court. We are unable to agree with the submission of learned counsel. On the contrary the petitioner can challenge the validity of the proviso to Section 234C(1) of the Act after the decision of the Income-tax Appellate Tribunal. Consequently, we feel that there is no purpose in keeping this writ petition pending. We dismiss this writ petition without prejudice to the rights and the contention of the petitioner on the merits 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 Income-tax Appellate Tribunal, if so advised.;