ORDER : Bhargav D. Karia, J. 1. This tax appeal under Section 260A of the Income Tax Act, 1961 (for short “the Act, 1961”) is at the instance of the Revenue and is directed against the order passed by the Income Tax Appellate Tribunal, Rajkot under “E” Court at Ahmedabad dated 27th May, 2019 in the ITA No.420/Rjt/2018 for the A.Y.2010-11. 2. The Revenue has proposed the following question as the substantial question of law arising out of the impugned order passed by the Tribunal; “Whether in the circumstances and the facts of the case and in law, the Appellate Tribunal has erred in deleting the addition of Rs.3,46,66,804/- on account of under invoicing of exports of iron ores?” 3. The brief facts of the case are that the respondent-assessee is a Company engaged in the business of manufacturing of beneficiated bauxite & trading of iron ore. The assessee had filed its return of income on 17th October, 2011, declaring total income at Rs.8,58,585/- The return of income was processed under Section 143(1) of the Act. 4. It appears that the Union of India got information that certain companies have extracted excess minerals and ores from the mines situated in Odisha, Goa and Jharkhand etc. The Inquiry Commission of Justice M.B. Shah was appointed to find out extra exploitation of mines whereby extra minerals were being extracted by the Companies and exported it by under-invoicing. 5. On the basis of the report given by Justice M.B. Shah Commission, it has come to the notice of the Department that the respondent-assessee was one of such exporters who had exported 44,000 WMT's of iron ore. Therefore, the Assessing Officer, on the basis of such report, came to the conclusion that the export price was quoted at 30% lessser than the base value. Accordingly, he recorded reasons demonstrating escapement of income and reopened the assessment. 6. The Assessing Officer, therefore, made an addition on the basis of the aforesaid report of Justice M.B. Shah Commission. 7. The Assessee, thereafter, challenged the assessment order by filing the appeal before the CIT (A). The CIT (A), however, rejected the appeal filed by the assessee. 8. Being dissatisfied, the assessee carried the matter further in appeal before the Income Tax Appellate Tribunal. The Appellate Tribunal, after taking into consideration the submissions made by the assessee, confirmed the decision of the CIT (A) for reopening the assessment. The CIT (A), however, rejected the appeal filed by the assessee. 8. Being dissatisfied, the assessee carried the matter further in appeal before the Income Tax Appellate Tribunal. The Appellate Tribunal, after taking into consideration the submissions made by the assessee, confirmed the decision of the CIT (A) for reopening the assessment. The Tribunal, however, on merits of the case, reversed the findings of the CIT (A) by observing as under; “15. We have considered rival submissions and gone through the record carefully. Short question for our adjudication is, whether solely on the basis of Hon'ble Mr. Justice M.B. Shah Commission report can it be construed that the assessee has exported iron ore by under-invoicing the price, which requires to be added in the taxable income ? 16. First contention raised by the Ld. counsel for the assessee was that the assessee has maintained proper books of accounts, which were audited and its books have not been rejected. Section 145 provide the mechanism how to compute the income of the Assessee. According to Sub-section 1, the income chargeable under the head profit and gains of business or profession or income from other source shall be computed in accordance wth the method of accountancy employed by an Assessee regularly, subject to sub-section 2 of Section 145 of the Act. Sub-section 2 provides that the Central Government may notify in the official gazette from time to time, the Accounting Standard required to be followed by any class of Assessee in respect of any class of income. Thus, it indicates that income has to be computed in accordance with the method of accountancy followed by an Assessee i.e. cash or mercantile, such method has to be followed keeping in view the Accounting Standard notified by the Central Government from time to time. Sub clause 3 provides a situation, that is, if the Assessing Officer is unable to deduce the true income. On the basis of method of accountancy followed by an Assessee than he can reject the book result and assess the income according to his estimation or according to his best judgment. The Assessing Officer in that case is required to point out the defects in the accounts of Assessee and required to seek explanation of the Assessee qua those defects. The Assessing Officer in that case is required to point out the defects in the accounts of Assessee and required to seek explanation of the Assessee qua those defects. If the assessee failed to explain the defects than on the basis of the book result, income cannot be determined and Assessing Officer would compute the income according to his estimation keeping in view the guiding factor for estimating such income. 17. In light of the above, if we peruse the record, then it would reveal that the Ld. AO has nowhere expressed his inability to deduce true income from the books of the assessee. He has not rejected the book results for determining the suppressed sales. The next contention raised by the Ld. counsel for the assessee was that in order to substantiate genuineness of its transaction, it has submitted the following documents: (i) Copy of Sales Purchase contract of iron ore no. IOF- 2010-01 Dated: 04-01 -2010. (ii) Copy of Letter of Credit No. M16AR1001RS00203 Dtd. 07/ 01/2010. (iii) Copy of Shipping bill & Custom Duty Challan no. 6404 Dtd.21/01/2010. (iv) Copy of Bill of Lading No. GOA/RMIPL/101 DTD.23/01/2010. (v) Copy of Certificate of Analysis by SGS India Private Limited Dtd. 25-01-2-2010. (vi) Copy of Invoice No. RMIPL/ IOF/ 2009-10/01 & 02 Dated: 27/01/2010 & 29/03/2010 respectively. (vii) Copy of Bank Realisation Credit Advise dtd. 28/01/2010 & 29/03/2010. (viii) Copy of Shipment advice in terms of Clause 46A of Letter of Credit. 18. All these documents are available on paper book. The Ld. counsel for the assessee also produced extract of Customs Act specifically section 28. He submitted that the assessee has presented the above documents to the custom authorities; it had paid export duty on declared export price value, which has been finally assessed by the custom authorities. Certificate to this effect is available on page 110.66 of the paper book, wherein Shri P.K. Shanna, Superintendent of Customs, Customs House, Marmagoa had issued a letter dated 28.4.2010 intimating the assessee qua finalization of provisional assessed shipping bill no.5024727 dated 15.1.2010 vide vessel MV Bonasia. Vide this shipping bill, the assessee has exported 44,000 MTs of iron ore. According to section 28 of the Customs Act, the limitation to recover duty by rejection of declared value has expired. Vide this shipping bill, the assessee has exported 44,000 MTs of iron ore. According to section 28 of the Customs Act, the limitation to recover duty by rejection of declared value has expired. Hence, the assessed duty has become final, and no question of under-invoicing under Custom Act can be raised now, Consequently, there cannot be any inquiry under-Income Tax Act. 19. It was also pointed out that during the course of reassessment proceedings or in the remand report submitted before the Ld. CIT(A), the A0 unable to lay his hand on any evidence exhibiting under-invoicing by the assessee. The AO is solely harboured upon Commission’s report. It is pertinent to observe that a charge of suppressed sales carried out by the assessee has been raised by the AO against it. It is the duty of the AO to prove the prima facie that such a charge can be leveled against the assessee, only thereafter it can be called for disproving that. The AO assumed charge and thereafter put a negative burden upon the assessee to prove that it has not exported iron ores by under-invoicing. This cannot be enforced in law. It is the AO who has to first prove the factum of under-invoicing done by the assessee with the support of reliable evidence in law.With regard to the alleged report of Hon’ble M. B. Shah Commission, it was contended that this report was challenged before the Hon’ble Supreme Court by way of writ petition. Government of India and other law enforcement agencies took the stand that on the basis of this report they are not going to take any action, rather they will investigate the issue further. This stand of Solicitor General as well as Advocate General appearing for the State of Goa have been noted down by the Hon’ble Supreme Court in the judgment, which is reflected in para 10. It is worth to take note of this finding as under : “10. Mr. This stand of Solicitor General as well as Advocate General appearing for the State of Goa have been noted down by the Hon’ble Supreme Court in the judgment, which is reflected in para 10. It is worth to take note of this finding as under : “10. Mr. Mohan Prasaran, learned Solicitor General for the Union of India, on the other and, submitted that as the notification dated 22.11.2010 of the Central Government appointing the Justice Shah Commission under Section 3 of the Commissions of Inquiry Act, 1952 would show, reports were received from various State Governments of widespread mining of iron ore and manganese ore in contravention of the MMDR Act, the Forest (Conservation) Act, 1980 and the Environment (Protection) Act, 1986 or other Rules and Licenses issued thereunder and for this reason, the Central Government appointed the Justice Shah Commission for the purpose of making inquiry into these matters of public importance. He submitted that after the Justice Shah Commission submitted the report pointing out various illegalities, the Union Government has kept the environment clearances in abeyance and it will legal action on the basis of its own assessment of the facts and not on basis of the facts as found in the Justice Shah Commission’s report. Similarly, Mr. N.S. Nadkarni, the Advocate General appearing for the State of Goa, submitted that Atmaram after going through the report of the Justice Shah Commission, the State Government has suspended all mining and transportation of ores and no legal action will be taken against the mining lessees on the basis of the findings in the Justice Shah Commission’s report unless due opportunity is given to the mining lessees to place their defence against the findings of the Justice Shah Commission. 11. We find that Section 8B of the Commissions of Inquiry Act, 1952 provides that if a person is likely to be prejudicially affected by the inquiry, the Commission shall give to that person a reasonable opportunity of being heard and to produce evidence in his defence and Section 8C of the Commissions of Inquiry Act, 1952 provides that every such person will have a right to cross-examine and the right to be represented by a legal practitioner before the Commission. As the State Government of Goa has taken a stand before us that no action will be taken against the mining lessees only on the basis of the findings in the report of the Justice Shah Commission without making its own assessment of facts and without first giving the mining lessees the opportunity of hearing and the opportunity to produce evidence in their defence, we are not inclined to quash the report of the Justice Shah Commission on the ground that the provisions of Sections 8B and 8C of the Commissions of Inquiry Act, 1952 and the principles of natural justice have not been complied with. At the same time, we cannot also direct prosecution of the mining lessees on the basis of the findings in the report of the Justice Shah Commission, if they have not been given the opportunity of being heard and to produce evidence in their defence and not allowed the right to cross-examine and the right to be represented by a legal practitioner before the Commission as provided in Sections 8B and 8C respectively of the Commissions of Inquiry Act, 1952. “20. In the light of the above, let us examine the report. Whether it can be used against the assessee and solely on the basis of it, it can be established that the assessee has under-invoiced its export. According to the Ld. counsel for the assessee, the methodology adopted by the Commission itself is improper and its comparison is misplaced. Under invoicing has been worked out qua the assessee at page no.236. Before that we would like to take note of three-four serial numbers in order to appreciate the error. We would like to make comparative analysis of certain exports made by other assessees. It is pertinent to note that the assessee has exported FD grade 58 iron ore. Therefore, we take note of rate of this grade noticed by the Commission with regard other parties. For example, Sesa Goa Ltd., has exported FE grade 58 vide two shipping bills bearing no. 5024395 and 5024397 on 10.12.2009. The rates were 2179.04 WMT. On the same day, this concern has exported same qualityof iron ore at the rate of 3008.73. Thereafter, Commission noticed export was made by the Sesa Goa Ltd. on 15.12.2009 FE grade 58 at the rate of 2222 per MT. 5024395 and 5024397 on 10.12.2009. The rates were 2179.04 WMT. On the same day, this concern has exported same qualityof iron ore at the rate of 3008.73. Thereafter, Commission noticed export was made by the Sesa Goa Ltd. on 15.12.2009 FE grade 58 at the rate of 2222 per MT. The next rate noticed by the Hon’ble Commission on 15.12.009 pertained to Chowgule & Co. P. Ltd. It relates to FE grade 58 and this concern exported at the rate of 2492.98. On 12.1.2010 Sesa Goa again exported FE 588 grade at the rate of 2120.76. The rates of the assessee which have been considered by the Hon’ble Commission are of 15.1.2010, FE 58 grade at the rate of Rs.2604/-. If all these rates are being compared, then it would reveal that on 10.12.2009, the Commission has accepted reasonable rate at 3008/- and compared other rates from this. But on 15.12.2009 it accepted the rate at 2492. It worked out under-invoicing by Rs.270 per WMT when rates of Sesa Goa and Chowgule were compared. Chowgule exported at the rate of 2492 per WMT. Sesa Goa exported the same grade of iron ore at 2222.26 per WMT. Under-invoicing has been worked at the rate of 270 per MT. For benchmarking, rate of Rs.2492 was considered as reasonable rate. If this rate is being compared with the rates of the assessee on 15.1.2010, then rate of assessee was Rs.2604/-. It is higher than the Chowgule & Co. In that case Chowgule & Co. should also be considered for under-invoicing. But it was not recommended. Apart from this discrepancy, the assessee has contended that rates considered by the Hon’ble Commission for compression were adopted on 15.1.2010. The assessee has entered into an agreement for export on 4.1.2010. The rates of 4.1.2010 should have been compared. The Commission has accepted two different rates in the case of Seasa Goa i.e. on 15.12.2009 and 10.12.2009. In other words, in time span of 5 days, if two different rates can be accepted as reasonable, and benchmarking was considered at 2492 per MT then why it is not possible that at the time of business, sale agreement with the importer rates applicable on 4.1.2010 were not according to the market conditions. There is no comparative price stated by the Commission on 4.1.2010. It is also important to note that value cannot be judged on one factor only. There is no comparative price stated by the Commission on 4.1.2010. It is also important to note that value cannot be judged on one factor only. Price depends on many factors and terms of sale contract. It is also pertinent to observe that the assessee is a trader and not a miner. It has purchased goods from the open market and exported. It has exported a single shipment to world renowned large multi-national company and it is not a sister concern of the importer. The goods were sold at arms length. It has purchased royalty paid iron ore and evidence to this effect has been brought to our notice and available on page no.113 to 129 of the paper book. Therefore, we are of the view that report which has been termed by the Commission itself as tentative report could be setting the investigation machinery in motion. But it cannot be treated equivalent to a decree which is required to be executed as it is, more so, in the light of finding recorded by the Hon’ble Supreme Court and the stand taken by the respective States. The AO has miserably failed to collect any evidence against the assessee demonstrating the fact that it has under-invoiced its export and therefore, received unaccounted sale proceeds. The undisclosed sales cannot be worked out on the basis of this report, and no addition required to be made in the absence of any evidence. We allow this fold of contention raised by the assessee and delete the addition.” 9. Thus, the Tribunal has taken into consideration the applicability of the report of the Justice M.B. Shah Commission so as to make addition of the alleged amount under-invoicing by the Assessing Officer. 10. We are in agreement with the findings recorded by the Tribunal, referred to above, and, therefore, no question of law, much less the substantial question of law arises. Accordingly, the appeal is dismissed with no order as to costs.