9911796707
TMI Blog1989 (2) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... nth's time for filing a supplementary affidavit annexing thereto copies of the statement and the affidavit of Rajendra Kochar who was examined by the Sales Tax Officer in the present case in regard to a diary found as a result of survey dated 24th September, 1977. In compliance of the said order, the assessee filed an affidavit of Sri Jagdish Saran, a partner of the assessee-firm annexing thereto various documents including the statement of Sri Kochar and a photostat copy of the diary in question. In view of these fresh facts coming on the record in this Court an opportunity was given to the Standing Counsel to file a counter-affidavit, in compliance of which a counter-affidavit was also filed on behalf of the Commissioner of Sales Tax, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said diary belonged to the assessee. I have heard learned counsel for the parties. Admittedly, during the year in dispute, as is apparent from the assessment order in question, the assessee carried on business in brass materials, stainless steel goods and steel scraps and after purchasing raw materials it used to get its goods manufactured through contractors. As such, no manufacturing account was maintained, nor it was possible for the assessee to maintain the same. Admittedly, the account books of the assessee for the preceding two assessment years 1974-75 and 1975-76 were also accepted by the department. The position of account continued to be the same in the year in dispute also. In the subsequent year, i.e., 1977-78 also the account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to Sri Rajendra Kochar and did not belong to the assessee and that the said diary contained entries made by Sri Rajendra Kochar. During the course of his statement Sri Rajendra Kochar had accepted that the diary belonged to him. A copy of his statement has been filed with the supplementary affidavit filed in this Court, which shows that the department had not been able to make out anything from his statement which could demolish the plea of the assessee, in support of which an affidavit as above was also filed by Sri Kochar. Said Sri Kochar admittedly worked as an agent on behalf of more than one party including the assessee and used to go out of station and fetch orders for various assessees including the present one. Admittedly, in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not only making debits in his own name but on 12th August, 1976, there is an entry of some bank draft showing the name of M/s. Gopal Das Jwala Prasad who is the present assessee. Such an entry in the name of M/s. Gopal Das Jwala Prasad also finds place on the 19th August, 1976. There are other various entries in the name of other assessees in the said diary in question. Thus, on the basis of the analogy adopted by the Tribunal in the impugned order, it has to be held that the said diary did not belong to the assessee also because on the dates mentioned above M/s. Gopal Das Jwala Prasad had made debits in its own name in the alleged diary in question. Therefore, on the said analogy of the Tribunal, these inconsistent findings obviously canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence gets involved and since this Court cannot appreciate evidence under section 11 of the U.P. Sales Tax Act, it has become imperative to remand the case back to the Sales Tax Tribunal only on this aspect as to whether the diary in question belonged to Sri Rajendra Kochar or somebody else. In case the said diary belonged to Sri Kochar as was the case of the assessee, then there survives no other ground for rejection of account books of the assessee. In the result, the revision succeeds and is allowed with costs, which are assessed at Rs. 200 (rupees two hundred). The impugned order passed by the Sales Tax Tribunal is set aside with directions to rehear the appeals afresh and decide the same in accordance with law in the light of the obs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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