SUSHMA MALHOTRA,BHOPAL V. COMMISSIONER OF INCOME TAX (APPEAL)NFAC, DELHI

ITA 94/IND/2025

AI Insights

The case involves Smt. Sushma Malhotra, represented by her legal heir Shri Vinay Malhotra, appealing against the order of the Commissioner of Income-Tax (Appeals) - NFAC, Delhi, for the Assessment Year 2007-08. The primary contention was the absence of a valid assessment order, which was crucial for the jurisdiction of the CIT(A) to adjudicate the appeal. The ITAT noted that the records did not conclusively show the existence of an assessment order, leading to the decision to remand the case for further verification.

• Counselvise Citation: [2026] 140 COUNSELVISE.COM (IT) 847466 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2026
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Indore
• Assessment Year: 2007-2008
• Appeal Filed On: 19-01-2025
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Department Lawyers: FORREVENUEDREWUSTOTHEFOLLOWINGPORTIONOF; FORREVENUEFILEAREPORTFROMAOABOUT; SHRIASHISHPORWAL
• Keywords: Set aside; Opportunity of being heard
• Section: 144

Judgement Text

"Page 1 of 6 आयकरअपीलीयअिधकरण, इंदौरɊायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI B.M. BIYANI, ACCOUNTANT MEMBER AND SHRI PARESH M. JOSHI, JUDICIAL MEMBER ITA No.94/Ind/2025 Assessment Year:2007-08 Sushma Malhotra, (L/H: Shri Vinay Malhotra) L-55, Shanker Nagar, Bhopal बनाम/ Vs. ITO 3(4), Bhopal (Assessee/Appellant) (Revenue/Respondent) PAN: ABIPM8225C Assessee by None Revenue by Shri Ashish Porwal, Sr. DR Date of Hearing 19.03.2026 Date of Pronouncement 25.03.2026 आदेश/ O R D E R Per B.M. Biyani, A.M.: Feeling aggrieved by order of first appeal bearing DIN: ITBA/NFAC/S/250/2024-25/1070571012(1) dated 22.11.2024 passed by learned Commissioner of Income-Tax (Appeals)-NFAC, Delhi [“CIT(A)”] u/s 250 of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2007-08, the assessee has filed this appeal. The said order passed by CIT(A) is here- in-after referred as “impugned order”. 2. At the outset, we would like to make a mention that the assessee “Smt. Sushma Malhotra” has already deceased and the present appeal before ITAT Printed from counselvise.com Sushma Malhotra (L/H: Shri Vinay Malhotra) ITA No. 94/Ind/2025 – AY 2007-08 Page 2 of 6 is filed and being pursued by deceased assessee’s husband-cum-legal heir “Shri Vinay Malhotra”. 3. Shri Vinay Malhotra appeared in person on some previous occasions before this very bench and made submissions. Today, when the case is called none appeared nor any adjournment application is filed on behalf of assessee/appellant. The Ld. DR, however, is ready to represent the revenue/respondent. We, therefore, proceeded to decide the appeal ex-parte qua the assessee/appellant on merit after considering the material available on record and after hearing the Ld. DR. 4. Shri Vinay Malhotra, the Legal Heir, raised a preliminary legal contention during his previous appearance before bench that no assessment-order was ever passed by Assessing Officer and therefore the Ld. CIT(A) has erred in passing impugned order of first-appeal. He submitted that in the absence of a valid assessment-order in existence, the appellate proceedings taken up by Ld. CIT(A) was without jurisdiction. He, therefore, prayed that the impugned order passed by Ld. CIT(A) must be set aside and appropriate relief be given to assessee. 5. Per contra, the Ld. DR for revenue drew us to the following portion of impugned order and submitted that the CIT(A) has mentioned the details of institution of appeal by assessee before him as well as the details of assessment-order passed by AO u/s 144 giving rise to appeal before him: Printed from counselvise.com Sushma Malhotra (L/H: Shri Vinay Malhotra) ITA No. 94/Ind/2025 – AY 2007-08 Page 3 of 6 6. We have considered submissions of both sides and carefully perused the documents held in case file. Accordingly, we find as under: (i) The CIT(A) has passed impugned order ex-parte to assessee for non- prosecution. In Para 3 of impugned order, the CIT(A) has also mentioned that the appeal was found deficient and a deficiency letter Printed from counselvise.com Sushma Malhotra (L/H: Shri Vinay Malhotra) ITA No. 94/Ind/2025 – AY 2007-08 Page 4 of 6 dated 30.12.2020 was issued to assessee to remove various deficiencies. However, the assessee did not submit any response. (ii) A copy of income-tax return filed by deceased assessee for AY 2007-08 on 31.03.2008 showing taxable income of Rs. 1,52,050/- and self- assessment payment of Rs. 2,500/- is available. This return is acknowledged by official seal of ITO-1(1), Bhopal. (iii) The Legal Heir filed an application under RTI Act, 2005 to Bhopal office of Income-tax Department seeking copy of assessment-order passed in case of deceased assessee whereupon the ITO-3(4), Bhopal- cum-CPIO has passed order dated 02.01.2025 u/s 7(1) of RTI Act, 2025. In the order so passed, the ITO-3(4), Bhopal-cum-CPIO has given information that due to multiple transfers of deceased assessee’s PAN data to different authorities of income-tax department, the case record is not traceable. (iv) The bench directed the Ld. DR for revenue file a report from AO about existence of assessment-order. The Ld. DR has submitted that the AO has reported that the documents are not available and his office is trying best to find the same. 7. Therefore, from the records placed before us, although it is discernible that the deceased assessee filed her income-tax return of AY 2007-08 to Income-tax Department but the position of the existence or otherwise of Printed from counselvise.com Sushma Malhotra (L/H: Shri Vinay Malhotra) ITA No. 94/Ind/2025 – AY 2007-08 Page 5 of 6 assessment-order passed by AO u/s 144 as mentioned by CIT(A) in impugned order [re-produced above in earlier Para 5 of this order] is not clearly borne out. The Legal Heir has taken a categorical plea that there exists no assessment-order. 8. The scheme of the Act clearly provides that the jurisdiction of CIT(A) arises only when an appeal is filed against an order passed by AO as enumerated u/s 246A of the Act. Therefore, existence of an appealable-order is a foundational requirement for assumption of jurisdiction by CIT(A). If, in fact, no assessment-order has been passed by AO, there would be no order which could form the subject-matter of appeal before CIT(A). In such a situation, the CIT(A) would lack jurisdiction to adjudicate the first-appeal. Conversely, if an assessment order has been passed, the CIT(A) would be competent to decide the appeal in accordance with law. Therefore, in our considered view, this issue goes to the root of the matter and requires proper verification. In the interest of justice, we deem it appropriate to set aside the impugned order of the Ld. CIT(A) and restore matter again to the file of Ld. CIT(A) with a direction to first verify whether or not a valid assessment-order was passed by Ld. AO, which was capable of being appealed against. If it is found that such an order existed, the Ld. CIT(A) shall adjudicate the appeal afresh in accordance with law after providing adequate opportunity of being heard to the Legal Heir. However, if it is found that no such assessment- order existed, the Ld. CIT(A) shall pass appropriate order qua the Printed from counselvise.com Sushma Malhotra (L/H: Shri Vinay Malhotra) ITA No. 94/Ind/2025 – AY 2007-08 Page 6 of 6 maintainability of appeal. While passing order, the CIT(A) shall be at liberty to call report from AO’s office as thought fit. We expect the Ld. CIT(A) to deal the case of assessee with utmost judicious mind and pass order preferably within a period of 3 months from date of receipt of this order so that the Legal Heir is not put to any difficulty. 9. Resultantly, this appeal is allowed for statistical purpose. Order pronounced in open court on 25/03/2026 Sd/- Sd/- (PARESH M. JOSHI) (B.M. BIYANI) JUDICIAL MEMBER ACCOUNTANT MEMBER Indore िदनांक/Dated : 25/03/2026 Patel/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order E COPYAssistant Registrar Income Tax Appellate Tribunal Indore Bench, Indore Printed from counselvise.com "