ASAHI INFRASTRUCTURE & PROJECTS LTD., AKOLA V. DCIT - 6(1), MUMBAI

ITA 6134/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5520 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 17-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAVLD
• Assessee Lawyers: ANIL THAKRAR LD AR
• Keywords: Bogus purchase
• Section: 143(3); 133(6)

Judgement Text

ITA NOS.6063 & 6134/MUM/2016 ASAHI INFRASTRUCTURE & PROJECTS LTD. ASSESSMENT YEAR-2011-12 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI , , BEFORE SHRI C.N. PRASAD, JM AND SHRI MANOJ KUMAR AGGARWAL, AM I.T.A. NO.6063/MUM/2016 ( ASSESSMENT YEAR:2011-12) ASSISTANT COMMISSIONER OF INCOME TAX- CIRCLE 6(1)(2) ROOM NO.563, 5 TH FLOOR, AAYKAR BHAVAN, M.K. ROAD MUMBAI-400 020 VS. ASAHI INFRASTRUCTURE & PROJECTS LIMITED 502, ISPHANI BUILDING, 120/122 MODI STREET, FORT MUMBAI-400 001 !' # PAN/GIR NO.AAACA-8777-F ( '$ APPELLANT ) : ( %'$ RESPONDENT ) & I.T.A. NO.6134/MUM/2016 ( ASSESSMENT YEAR: 2011-12) ASAHI INFRASTRUCTURE & PROJECTS LIMITED 502, ISPHANI BUILDING, 120/122 MODI STREET, FORT MUMBAI-400 001 VS. DEPUTY COMMISSIONER OF INCOME TAX - 6(1) MUMBAI !' # PAN/GIR NO.AAACA-8777-F ( '$ APPELLANT ) : ( %'$ RESPONDENT ) REVENUE BY : RAJESH KUMAR YADAV, LD.DR ASSESSEE BY : ANIL THAKRAR, LD. AR &' DATE OF HEARING : 10/07/2018 ()*' / DATE OF PRONOUNCEMENT : 10/07/2018 2 ITA NOS.6063 & 6134/MUM/2016 ASAHI INFRASTRUCTURE & PROJECTS LTD. ASSESSMENT YEAR-2011-12 O R D E R PER BENCH 1. THESE ARE CROSS APPEALS FOR ASSESSMENT YEAR [AY] 20 11-12 WHICH CONTEST THE ORDER OF THE LD. COMMISSIONER OF INCOME -TAX (APPEALS)-12 [CIT(A)], MUMBAI, APPEAL NO.CIT(A)-12/DCIT-6(1)(2)/141/13-14 DATED 29/07/2016. THE REGISTRY HAS NOTED THAT THE REVENUE S APPEAL HAS BEEN FILED WITH A DELAY OF 3 DAYS, WHICH HAS NOT BEEN AGITATED BY LD. AUTHORIZED COUNSEL FOR ASSESSEE [AR], SHRI ANIL THAKRAR BEFORE US . KEEPING IN VIEW THE SAME, WE PROCEED TO DISPOSE-OFF THE CROSS-APPEA LS ON MERITS. 2. THE EFFECTIVE GROUNDS RAISED BY THE REVENUE READ S AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) WHILE UPHOLDING ACTION OF THE A.O. IN REJECTING THE BOOKS OF ACCOUNT U/S 145(2) OF THE I.T. ACT, IS NOT JUSTIFIED IN DELETING ADDITION MADE ON ACCOUNT OF REJECTION OF BOOKS OF ACCOUNT OF TRADING ACTIVITY. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW. THE LD. CIT(A) IS NOT JUSTIFIED IN REDUCING THE PERCENTAGE OF ESTIMAT ION OF NET PROFIT FROM 8% TO 7% ON ACCOUNT OF CONSTRUCTION RECEIPT. WHEREAS THE EFFECTIVE GROUNDS RAISED BY THE ASSESSE E READ AS UNDER:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE IN LAW: >THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) W AS JUSTIFIED IN UPHOLDING: * THE ASSESSING OFFICERS STAND OF REJECTING THE BO OKS OF ACCOUNTS AND MAKING AN ADDITION ON ESTIMATION BASIS @7% ON ACCOU NT OF CONSTRUCTION RECEIPTS. THE ASSESSMENT FOR IMPUGNED AY WAS FRAMED BY LD. DEPUTY COMMISSIONER OF INCOME TAX-CIRCLE 6(1), MUMBAI [AO] U/S 143(3) OF THE INCOME TAX ACT, 1961 ON 19/03/2014 WHEREIN THE INCOME OF THE ASSESSEE HAS BEEN ASSESSED AT RS.525.37 LACS AFTER CERTAIN A DDITIONS AS AGAINST RETURNED INCOME OF RS.300.69 LACS E-FILED BY THE ASSESSEE ON 30/09/2011 3 ITA NOS.6063 & 6134/MUM/2016 ASAHI INFRASTRUCTURE & PROJECTS LTD. ASSESSMENT YEAR-2011-12 WHICH WAS LATER REVISED TO SAME FIGURES ON 29/09/20 12. THE SUBJECT MATTER OF CROSS APPEALS BEFORE US IS ESTIMATION OF INCOME AGAINST TRADING ACTIVITIES AS WELL AS CONSTRUCTION ACTIVITIES CARRIED OUT BY THE ASSESSEE IN THE IMPUGNED AY. 3.1 BRIEFLY STATED THE ASSESSEE BEING RESIDENT CORPORATE ASSESSEE ENGAGED IN CONSTRUCTION WORK AND TRADING OF IRON & STEEL REFLECTED COMBINED NET PROFIT OF RS.3.30 CRORES AGAINST CONSTRUCTION TURNOVER OF RS.57.47 CRORES & TRADING TURNOVER OF RS.90.07 CRORES. AS EVIDENT FROM PARA 3.2 OF THE QUANTUM ASSESSMENT ORDER, THE GROSS PROFIT RATE OF TRADING ACTIVITY & CONSTRUCTION ACTIVITY HAS BEEN REFLECTED AS 0.68% & 8.28% RESPECTIVELY. THE SAME PARA RECORD A FINDING THAT THE ASSESSEE FAILED TO SUBMIT THE REQUISITE DETAILS AS CALLED FOR VIDE LETTER DATED 19/12/2013 WITH RESPECT TO CONSTRUCTION ACTIVITIES VIZ. DETAILS OF WORK DONE, MATERIAL / LABOR UTILIZED, WORK-IN-PROGRESS ETC. 3.2 TO VERIFY THE GENUINENESS OF THE PURCHASES REFL ECTED BY THE ASSESSEE, NOTICES U/S 133(6) WERE ISSUED TO TEN PARTIES, THE DETAILS OF WHICH HAVE BEEN EXTRACTED AT PARA 3.3 OF THE QUANTUM ASSESSMENT ORDER. HOWEVER, MOST OF THE NOTICES EITHER RETURNED BACK UNDELIVERE D OR NO REPLY WAS RECEIVED AGAINST THE SAME. ONLY THREE PARTIES RESPO NDED TO THE NOTICES WHICH LED THE LD. AO TO DOUBT THE GENUINENESS OF TH E PURCHASES REFLECTED BY THE ASSESSEE. A CLOSER LOOK INTO THE CONFIRMATIO N FILED BY THE PARTIES REVEALED THAT THE ASSESSEE WAS SELLING AS WELL AS P URCHASING MATERIAL FROM THE SAME PARTIES WITHOUT MAKING ANY ACTUAL PAYMENT WHICH LED THE LD. AO 4 ITA NOS.6063 & 6134/MUM/2016 ASAHI INFRASTRUCTURE & PROJECTS LTD. ASSESSMENT YEAR-2011-12 TO FORM A BELIEF THAT THE ASSESSEE WAS ENGAGED IN C IRCULAR TRADING WITH THESE PARTIES. 3.3 THE ASSESSEE, VIDE SUBMISSION DATED 18/03/2014, DEFENDED THE FINANCIAL RESULTS AND SOUGHT TIME TO COMPILE QUANTI TATIVE DETAILS OF MATERIAL CONSUMED IN CONSTRUCTION ACTIVITIES. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE WAS A PUBLIC LISTED COMPANY AND REGULAR ASSESSEE FOR SEVERAL YEARS AND THE ACCOUNTS WERE SUBJECTED TO STATUTORY / TAX AUDIT AND THEREFORE, THERE WAS NO JUSTIFICATION TO REJECT THE BOOKS OF ACCOUNTS. HOWEVER, NOT CONVINCED, LD. AO, WHILE REJECTING THE BOOKS U/S 145(2), ESTIMATED NET PROFIT RATE OF 1% IN TRADING ACTIVITIES AND 8% IN CONSTRUCTION ACTIVITIES WHICH RESULTED INTO AN ADDITION OF RS.2.19 CRORES I N THE HANDS OF THE ASSESSEE. 3.4 BESIDES ABOVE, THE ASSESSEE WAS SADDLED WITH AD DITION OF RS.2.73 LACS ON ACCOUNT OF CERTAIN ALLEGED BOGUS PURCHASES AND ANOTHER ADDITION OF RS.2.73 LACS ON ACCOUNT OF MISMATCH IN ANNUAL INFORMATION RETURN [AIR] DATA. 4. AGGRIEVED, THE ASSESSEE CONTESTED THE SAME WITH PARTIAL SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 29/07/2 016 WHEREIN THE LD. CIT(A), UPON FACTUAL MATRIX, DID NOT CONCUR WITH TH E STAND OF LD. AO IN REJECTING THE BOOKS OF ACCOUNTS. FINALLY, THE ESTIM ATED ADDITION ON ACCOUNT OF TRADING RESULTS WERE DELETED WHEREAS THE NET PROFIT RATE ON ACCOUNT OF CONSTRUCTION ACTIVITY WAS REDUCED TO 7% IN THE FOLLOWING MANNER:- 6.3 I HAVE CAREFULLY PERUSED THE ASSESSMENT ORDER AND THE SUBMISSION MADE BY THE APPELLANTS AR VIDE LETTER DATED 31.05.2016, 01.07. 2016 AND 29.07.2016. IT IS 5 ITA NOS.6063 & 6134/MUM/2016 ASAHI INFRASTRUCTURE & PROJECTS LTD. ASSESSMENT YEAR-2011-12 SEEN THAT APPELLANT IS ENGAGED IN TWO TYPES OF ACTI VITY, FIRST SUCH ACTIVITY IS TRADING OF IRON & STEEL, MS PLATE, MS ANGLE, G.P. SHEET ETC AND SECOND ACTIVITY IS OF CONSTRUCTION OF EWS FLATS UNDER THE SRA SCHEME OF S TATE GOVERNMENT. WITH RESPECT TO THE TRADING ACTIVITY OF THE APPELLANT, T HE APPELLANT HAS FURNISHED ALL THE RELEVANT DETAILS WHICH WERE VERIFIED BY THE AO, ONL Y ON THE BASIS OF CONFIRMATION FILED BY THE APPELLANT AND CONFIRMATION RECEIVED FR OM SOME PARTIES IN RESPONSE TO THE NOTICE ISSUED U/S 133(6), CAME TO THE CONCLUSIO N THAT THE APPELLANT WAS ENGAGED IN CIRCULAR TRADING AS AT APPEARING FROM TH E CONFIRMATION LETTERS THAT THE APPELLANT HAD PURCHASED AND SOLD THE GOODS IN SOME CASES. THE AO HAS NOT BROUGHT OUT ON RECORDS EVIDENCE TO ESTABLISH THAT T HE APPELLANT IS ENGAGED IN CIRCULAR TRADING. THE LEDGER COPY ONLY INDICATES TH E PURCHASE AND SALE AMOUNT, IT DOES NOT REFLECT THE ITEM SOLD, RATES ETC., HENCE O N THE BASIS OF LEDGER CONFIRMATION, IT CANNOT BE SAID THAT THE APPELLANT IS ENGAGED IN CIRCULAR TRADING. AT THE MOST, IT CAN BE A GOOD STARTING POINT OF INVEST IGATION. THE ADDITION CANNOT BE BASED ON SUSPICION. IN THE TRADING ACTIVITY, THE AO HAS NOT FOUND A SINGLE MISTAKE IN THE BOOKS OF ACCOUNT. THE AO HAS NOT RECORDED HI S SATISFACTION ABOUT THE CORRECTNESS OR COMPLETENESS OF THE ACCOUNTS OF APPE LLANT OR NEITHER STATED THAT THE APPELLANT HAS NOT FOLLOWED THE ACCOUNTING STAND ARD AS NOTIFIED WAS BEING REGULARLY FOLLOWED BY THE APPELLANT. IN SOME CASES, NOTICES ISSUED WERE RECEIVED UNSERVED IS A CORRECT FACT BUT IT WAS EXPLAINED BY THE APPELLANT TO THE AO THAT THE ADDRESS ARE LAST KNOWN ADDRESS OF THE SUPPLIERS AND THE APPELLANT WAS IN THE PROCESS OF IDENTIFYING THEIR ADDRESSES. THE AO THER EAFTER HAS NOT MADE ANY INVESTIGATION NOR ANY DEFECT WERE NOTICED BY HIM IN THE BOOKS OF ACCOUNT. UNDER THESE CIRCUMSTANCE, I DO NOT FIND MERIT IN REJECTIN G THE BOOKS OF ACCOUNT OF TRADING ACTIVITY OF THE APPELLANT ONLY ON THE BASIS OF SUSP ICION. FOR REJECTING THE BOOKS OF ACCOUNT IT IS INCUMBENT ON THE AOS PART TO RECORD THAT THE BOOKS ACCOUNT IN EITHER NOT CORRECT OR NOT COMPLETE. IN THE INSTANCE CASE, THE AO HAS NOT FOUND ANY DEFECT IN THE BOOKS OF ACCOUNT OR HAS NOT RECOR DED REASON TO ESTABLISH THAT FROM THE BOOKS TRUE PROFIT CANNOT BE DEDUCED FROM T HE BOOKS OF ACCOUNTS. THEREFORE, REJECTION OF BOOKS OF ACCOUNT OF TRADING ACTIVITY IS NOT CALLED FOR AND ACCORDINGLY ADDITION MADE ON ACCOUNT OF REJECTION O F BOOKS OF ACCOUNT OF TRADING ACTIVITY IS DIRECTED TO THE DELETED. WITH RESPECT TO THE CONSTRUCTION ACTIVITY OF THE AP PELLANT, THE AO SPECIFICALLY CALLED FOR CERTAIN DETAILS VIDE SHOW C AUSE NOTICE DATED 11.03.2014 WHICH WAS REPRODUCED IN PARA 3.5 OF THE ASSESSMENT ORDER. IN THAT NOTICE THE AO HAS SPECIFICALLY NOTED THAT QUANTITATIVE DETAILS IN RESPECT OF CONSTRUCTION BUSINESS ARE NOT FURNISHED. THE AO FURTHER NOTED THAT IN THE SHOW CAUSE NOTICE THAT NON- FURNISHING OF QUANTITATIVE & OTHER DETAILS IN RESPE CT OF CONSTRUCTION BUSINESS COUPLED WITH THE FACTS THAT NOTICED U/S 133(6) WERE RETURNED UNSERVED LEAD TO THE CONCLUSION THAT BOOKS OF ACCOUNT WERE NOT MAINTAINE D IN A PROPER MANNER. IN RESPONSE TO THE SHOW CAUSE, THE APPELLANT VIDE LETT ER DATED 18.03.2014 EXPRESSED ITS INABILITY TO SUBMIT QUANTITATIVE DETA ILS OF MATERIAL CONSUMED IN 6 ITA NOS.6063 & 6134/MUM/2016 ASAHI INFRASTRUCTURE & PROJECTS LTD. ASSESSMENT YEAR-2011-12 RESPECT OF CONSTRUCTION BUSINESS BEFORE THE AO. THE AO CONSIDERED THE APPELLANT'S SUBMISSION BUT IT WAS NOT ACCEPTED ON T HE FOLLOWING GROUNDS 1 THE APPELLANT IS NOT ABLE TO FURNISH ITEM-WISE DE TAILS OF WORK DONE AND ITEM-WISE & WORK WISE UTILIZATION OF MATERIAL & LABOUR INPUT. 2 THE APPELLANT HAS NOT PRODUCED DAY TO DAY STOCK R EGISTER SHOWING PURCHASE, SALE AND CONSUMPTION OF MATERIAL. 3 LABOUR REGISTER WAS FURNISHED BUT WORK WISE UTILI ZATION OF LABOUR HAS NOT BEEN FURNISHED 4 NOTICES ISSUED U/S 133(6) HAVE COME BACK UNSER VED AND IN TWO CASES NO REPLY WAS RECEIVED. UNDER THESE CIRCUMSTANCE, THE AO REJECTED THE BOOKS OF ACCOUNT AND ESTIMATED THE NET PROFIT AT THE RATE OF 8% OF CONSTRUCTION AC TIVITY. 6.4 THE APPELLANT DURING APPELLATE PROCEEDINGS STAT ED THAT THE APPELLANT IS PUBLIC LIMITED COMPANY LISTED AT THE BOMBAY STOCK EXCHANGE SINCE LAST 25 YEARS. REGULAR BOOKS OF ACCOUNT ARE MAINTAINED AND ARE DUL Y AUDITED UNDER THE PROVISION OF THE COMPANIES ACT, 1956 AND INCOME TAX ACT, 1961, AND ANNUAL RESULT ARE PUBLISHED IN NEWSPAPER AND ALSO CIRCULAT ED TO SHAREHOLDERS AS PER STATUTORY PROVISION. THE APPELLANT FURTHER STATED T HAT IT IS NOT POSSIBLE TO MAINTAIN A STOCK REGISTER TO RECORD ITEM-WISE MOVEMENT OF MA TERIAL THAT IS USED IN CONSTRUCTION PROCESS. ITEMS LIKE CEMENT, STEEL SAND / GRANULES ETC ARE PROCURED AS PER REQUIREMENT AT THE SITE AND CONSUMPTION IS ENTI RELY DEBITED TO THE WORK III PROGRESS A/C. THIS SYSTEM IS GENERALLY FOLLOWED IN THE CONSTRUCTION INDUSTRIES. THE APPELLANT STATED THAT EXCEPT FOR THE ABSENCE OF STOCK REGISTER, THERE IS NO FINDING BY THE AO TO THE EFFECT THAT THE ACCOUNTS W ERE NOT CORRECT AND COMPLETE OR THE ASSESSING OFFICER WAS OF THE OPINION THAT THE I NCOME COULD NOT BE DEDUCED FROM THE DULY AUDITED ACCOUNTS MAINTAINED BY APPELL ANT AND HENCE THE BOOKS OF ACCOUNT COULD NOT BE REJECTED. THE APPELLANT ALSO R ELIED ON CERTAIN CASE LAWS. 6.5 I HAVE CAREFULLY PERUSED THE ASSESSMENT ORDER A ND THE SUBMISSION OF THE APPELLANT. IT IS SEEN THAT THE AO, NOWHERE IN THE A SSESSMENT ORDER, POINTED OUT ANY DEFECTS FROM THE BOOKS OF ACCOUNTS PRODUCED BEF ORE HIM. THE REJECTION OF AUDITED BOOKS OF ACCOUNT WERE ON ACCOUNT OF NON-SUB MISSION OF ITEM WISE WORK DONE & WORK WISE UTILIZATION OF MATERIAL & LABOUR I NPUT. NON MAINTENANCE OF DAY TO DAY STOCK REGISTER, AND IN SOME CASE NOTICES ISS UED U/S 133(6) WERE RETURNED UNSERVED. THE AO HAS NOT POINTED OUT ANY SPECIFIC D EFECTS OR DISCREPANCY AT ALL IN THE BOOKS OF ACCOUNT MAINTAINED BY THE APPELLANT . THE APPELLANT ARGUED THAT EXCEPT STOCK REGISTER ALL THE BOOKS OF ACCOUNTS WER E MAINTAINED. THERE WAS NO FINDING OF THE AO THAT THE TRUE PROFIT CANNOT BE DE DUCED FROM THE BOOKS OF ACCOUNT MAINTAINED BY THE APPELLANT OR THAT THE ACC OUNTS WERE NOT CORRECT OR COMPLETE. IT IS ALSO SEEN THAT THE AO HAS NOT GIVEN ANY BASIS FOR THE ESTIMATION OF 8% OF NET PROFIT. THE JURISDICTIONAL HON'BLE ITAT I N THE APPELLANT'S CASE FOR A.Y. 2007-08, NOTED THAT THE PROVISION OF SECTION 44AD/4 4AF OF THE ACT APPLY ONLY TO PRESUMPTIVE ASSESSMENT, WHERE THE TURNOVER IS RS 40 LACS OR LESS AND NOT THE 7 ITA NOS.6063 & 6134/MUM/2016 ASAHI INFRASTRUCTURE & PROJECTS LTD. ASSESSMENT YEAR-2011-12 CASE, WHERE TURNOVER IS MORE THAN THAT. IT IS TRUE THAT THE APPELLANT HAS NOT MAINTAINED STOCK REGISTER AND ALSO EXPRESSED ITS IN ABILITY TO MAINTAIN THE SAME. KEEPING OF STOCK REGISTER IS OF GREAT IMPORTANCE WI THOUT WHICH BOOKS OF ACCOUNT CANNOT BE HELD AS COMPLETE. THE CONSUMPTION OF MATE RIAL ONLY CAN BE VERIFIED FORM THE STOCK REGISTER- IN THE INSTANCE CASE THE A PPELLANT HAS NOT MAINTAINED THE STOCK REGISTER AND IS ALSO NOT ABLE TO FURNISH THE NEW ADDRESS OF PARTIES WHOSE NOTICES U/S 133(6) WERE UNSERVED WHICH ITSELF LEADS TO NO VERIFICATION OF THE PURCHASE AND ITS CONSUMPTION FOR THE CONSTRUCTION A CTIVITY OF THE APPELLANT. HENCE, THE REJECTION OF BOOKS OF ACCOUNT WITH RESPE CT TO THE CONSTRUCTION ACTIVITY BY AO IS FOUND TO BE CORRECT. NOW THE QUESTION ARIS ES AS TO HOW THE ESTIMATION WAS MADE. NEITHER THE AO NOR THE APPELLANT HAS GIVE N ANY BASIS OF ESTIMATION. HENCE, TO MEET NET PROFIT FROM THE CONSTRUCTION ACT IVITY. HENCE. AO IS DIRECTED TO DELETED THE ADDITION IN EXCESS OF 7% OF THE CONSTRU CTION RECEIPT. THEREFORE, THE GROUND OF APPEAL NO. 1 IS PARTLY ALLOWED. AGGRIEVED, THE ASSESSEE AS WELL AS REVENUE IS IN FU RTHER APPEAL BEFORE US. 5. THE LD. DEPARTMENTAL REPRESENTATIVE, SHRI RAJESH KUMAR YADAV, CONTESTED THE STAND OF LD. CIT(A) IN GRANTING RELIE F TO THE ASSESSEE WHEREAS THE LD. AUHTORIZED REPRESENTATIVE [AR] FOR ASSESSEE , SHRI ANIL THAKRAR, PLACED RELIANCE ON THE ORDER OF THIS TRIBUNAL IN AS SESSEES OWN CASE FOR AY 2007-08, ITA NO. 5760/MUM/2012 DATED 20/07/2016, A COPY OF WHICH HAS BEEN PLACED ON RECORD. 6.1 WE HAVE CAREFULLY HEARD THE RIVAL CONTENTIONS A ND PERUSED RELEVANT MATERIAL ON RECORD. THE UNDISPUTED FACT REMAIN THAT THE ASSESSEE HAS FAILED TO SUBMIT THE QUANTITATIVE DETAILS OF THE TRADING O PERATIONS AS WELL AS DETAILS OF CONSTRUCTION ACTIVITIES CARRIED OUT BY HIM DURIN G THE IMPUGNED AY. THE LD. AR IS MERELY HARPING ON THE POINT THAT THE ASSE SSEE WAS A LISTED PUBLIC COMPANY AND THEREFORE, THE BOOKS COULD NOT BE REJECTED BY L D. AO AND THE PROFITS COULD NOT BE ESTIMATED BY LOWER AUTHORITIES . WE ARE NOT CONVINCED WITH THE SAME SINCE THE COMPLETE ONUS TO SUBSTANTIA TE THE FINANCIAL RESULTS 8 ITA NOS.6063 & 6134/MUM/2016 ASAHI INFRASTRUCTURE & PROJECTS LTD. ASSESSMENT YEAR-2011-12 WAS ON ASSESSEE WHICH HE HAS FAILED TO DISCHARGE. R ATHER THIS ARGUMENT PUT MORE ONUS ON ASSESSEE TO SUPPORT THE TRANSACTIO NS CARRIED OUT BY HIM WITH DOCUMENTARY EVIDENCES AND PLAUSIBLE EXPLANATIO N. FURTHER, IN TERMS OF SECTION 44AA, THE ASSESSEE WAS REQUIRED TO KEEP AND MAINTAIN BOOKS OF ACCOUNTS AND OTHER DOCUMENTS AS MAY ENABLE THE LD. AO TO COMPUTE THE TOTAL INCOME IN ACCORDANCE WITH THE PROVISIONS OF T HE ACT. THEREFORE, LD. CIT(A), IN OUR OPINION, ERRED IN SHIFTING THE ONUS UPON LD. AO TO PROVIDE RELIEF TO THE ASSESSEE SINCE EVEN THE PRIMARY ONUS OF SUBSTANTIATING THE TRANSACTIONS REMAINED UN-DISCHARGED BY THE ASSESSEE . 6.2 PROCEEDING FURTHER, IT IS EVIDENT FROM QUANTUM ASSESSMENT ORDER THAT MOST OF THE NOTICES ISSUED U/S 133(6) TO CONFIRM TH E PURCHASES TRANSACTIONS ELICITED NO SATISFACTORY RESPONSE AND FEW CONFIRMAT IONS, AS RECEIVED, DEMONSTRATED THAT THE ASSESSEE WAS ENGAGED IN CIRCU LAR TRADING. NO PLAUSIBLE EXPLANATION, IN THIS REGARD, IS AVAILABLE ON RECORD. NO QUANTITATIVE DETAILS COULD BE FILED BY THE ASSESSEE WITH RESPECT TO TRADING DONE BY HIM AND FURTHER NO DETAILS WITH RESPECT TO CONSTRUCTION ACTIVITIES AS CALLED FOR BY LD. AO WERE FURNISHED BY THE ASSESSEE. IN SUCH A SI TUATION, LD. AO WAS LEFT WITH NO OPTION BUT TO REJECT THE BOOKS AND ESTIMATE THE INCOME OF THE ASSESSEE ON SOME REASONABLE BASIS. THE SAME IS EVID ENT FROM THE FACT THAT LD. FIRST APPELLATE AUTHORITY HAS ALSO CONFIRMED TH E STAND OF LD. AO IN ESTIMATING THE INCOME FROM CONSTRUCTION ACTIVITIES. 6.3 SO FAR AS THE TRIBUNALS ORDER FOR AY 2007-08 I S CONCERNED, WE FIND THAT THE SAME COULD NOT HELP THE ASSESSEE IN ANY MA NNER SINCE THE MATTER 9 ITA NOS.6063 & 6134/MUM/2016 ASAHI INFRASTRUCTURE & PROJECTS LTD. ASSESSMENT YEAR-2011-12 IS FACTUAL ONE AND SECONDLY, IN THAT YEAR, LD. AO, BY MISTAKE, ESTIMATED THE ADDITIONS BY INVOKING THE PROVISIONS OF SECTION 44A D/44AF, WHICH IS NOT THE CASE HERE. FURTHER, THE STATUS OF ASSESSMENT / APPE LLATE PROCEEDINGS FOR INTERVENING AYS I.E. 2008-09 TO 2010-11 HAS NOT BEE N PLACED BEFORE US TO APPRECIATE THE POSITION THEREIN. 6.4 KEEPING IN VIEW THE FACT THAT THE ASSESSEE IS CORPORATE ASSESSEE AND SUBJECTED TO STATUTORY AUDITS AND THEREFORE, THE BO OKS COULD NOT REJECTED IN A LIGHT MANNER, THE MATTER STAND REMITTED BACK TO T HE FILE OF LD. AO FOR RE- ADJUDICATION WITH A DIRECTION TO THE ASSESSEE TO SU BSTANTIATE THE TRANSACTIONS CARRIED OUT BY HIM BY WAY OF TRADING A S WELL AS BY WAY OF CONSTRUCTION ACTIVITIES FAILING WHICH LD. AO SHALL BE AT LIBERTY TO ADJUDICATE THE ISSUE ON THE BASIS OF MATERIAL / EXPLANATION AV AILABLE ON RECORD. THE ORDER OF LD. FIRST APPELLATE AUTHORITY, TO THAT EXT ENT, STANDS REVERSED. 7. RESULTANTLY, BOTH THE APPEALS STAND ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH JULY, 2018 SD/- SD/- (C.N.PRASAD) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 10.07.2018 SR.PS:-THIRUMALESH 10 ITA NOS.6063 & 6134/MUM/2016 ASAHI INFRASTRUCTURE & PROJECTS LTD. ASSESSMENT YEAR-2011-12 ' COPY OF THE ORDER FORWARDED TO : 1. ()*+,- ' THE APPELLANT 2. 123,- ' THE RESPONDENT 3. 73873 9: ; ()*+ < ' THE CIT