1981 (2) TMI 246

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..... as not traceable therefore assessee could not be fastened with liability of entries in the diary and its account book could not be rejected on this ground. 2. The controversy whether reliance could be placed on entries in account book or diaries of third persons without producing them to cross-examination stands concluded by the decision of Supreme Court in State of Kerala v. K. T. Shaduli and Nalakutti Yusuf, 1977 UPTC 353. This was not disputed by the learned Standing Counsel. But he argued that it was precisely for this reason that appellate authority had accepted the contention of assessee and remanded the case for decision afresh after affording opportunity to the assessee therefore the revising authority committed an error in setti .....

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..... ufficient and department may not be considered as defaulter in not accepting assessee's request yet the question is, does it entitle department to seek fresh opportunity. Assessment is the responsibility of the department. The burden to prove that sale and purchase is taxable lies on it. While determining it the department can rely on evidence which is admissible and pass the order after affording opportunity to dealer, The word admissible may not be understood in the strict sense of Evidence Act but it cannot admit of any doubt that no material can be relied with which the assessee is not confronted. Confronting does not mean telling the assessee that a document is on record. For instance if reliance is placed on account books or diary .....

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..... ount book of the assessee. II may arise either when recorded stock is more or less than actual stock found at time of survey. If it is less then it is obvious that entries are not made in ordinary course of business and sale and purchase of assessee cannot be said to be verifiable. But similar is not the position when stock recorded is more. While construing a provision of law the normal human dealing cannot be ignored. If a dealer is so dare devil as to make entries at an exaggerated figure and effect sale or purchase of goods to avoid payment of tax, as suggested by Standing Counsel and undertake grave risk it cannot be determinative of normal course. The revising authority therefore did not commit any error in holding that difference in .....

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