R. R. MISRA, J. - (1.) In this case originally the revision was heard and decided ex parte on merits as nobody had appeared on behalf of the assessee. On an application made thereafter and sufficient cause being made out the said ex parte judgment dated 8th July, 1988, was recalled and the case was directed to be reheard on 1st November, 1988. On 1st November, 1988, after the case was heard for sometime now Sri S. N. Singh learned counsel for the assessee prayed for and was allowed one month'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, which is on record. Thereafter, learned counsel for the assessee gave a statement that he does not propose to file rejoinder affidavit. Hence the case was heard on merits. This revision is directed against an order dated 17th December, 1986, passed by the Sales Tax Tribunal with regard to liability of the assessee under the Central Sales Tax Act for the assessment year 1976-77. During the said year the assessee had in its returns disclosed a net turnover of Rs. 13,78,492. 62, which was not believed by the assessing authority and a best judgment assessment was raised against it. On appeal, the Assistant Commissioner (Judicial), upheld the rejection of account books but reduced the estimate of turnover to Rs. 1,62,500. Consequently, both the assessee as well as the Department filed second appeals before the Sales Tax Tribunal, which have been dismissed by the Tribunal by the impugned order. The rejection of account books of the assessee has been upheld by the appellate authorities below on two counts. First is that the assessee did not maintain any manufacturing account and, therefore, the account books are liable to be rejected. The second ground for upholding the rejection of account books is that as a result of survey dated 24th September, 1977, a diary was found. The assessee claimed that the said diary did not belong to it but it belonged to one Sri Rajendra Kocher, who was its agent. All the authorities below have, however, after drawing an inference, taken the view that the 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 position of the assessee continued to be the same and was accepted by the department, which is clear from a perusal of a copy of the assessment order (annexure-9 to the supplementary affidavit ). No defect in the account books at all have been pointed out by any of the authorities below. In these circumstances, in my opinion, when admittedly the assessee gets its utensils manufactured through karigars there was no occasion for the assessee to maintain any manufacturing account and the account books of the assessee could not be rejected on this score as has been held by this Court in the case of Uma Shanker Vijay Shanker v. Commissioner of Sales Tax 1981 UPTC 201. Therefore, on the facts of this case and in view of the position of the account books being the same in the preceding two assessment years as well as in the succeeding assessment year and the department itself had accepted the account books in the said years, in my opinion, on the facts of this case there arises no question of rejection of account books of the assessee on this ground and the Sales Tax Tribunal is plainly in error in relying on this ground as a basis for rejection of account books. The other ground that survives for consideration is the diary recovered as a result of survey dated 24th September, 1977. Sri Rajendra Kochar was also examined in this regard in this case at the stage of assessment. He has also filed an affidavit supporting his stand. The case of the assessee was that the said diary belonged 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 the present case the assessee carried on only transactions which were liable to be taxed under the Central Sales Tax Act and there was no liability of the assessee under the U. P. Sales Tax Act. It is, therefore, clear that the assessee had either to receive orders directly or it had to take services of some agent to book orders for the assessee from out of station. I have already pointed out above that the department has not been able to find any defect in the account books of the assessee. The said account books did contain entries regarding payment to Sri Rajendra Kochar as agent, which have not been disbelieved by the authorities below. The authorities below have nowhere recorded a finding in their orders that Sri Rajendra Kochar did not act as an agent of the assessee during the year in dispute. From a perusal of the impugned order it is clear that the only ground on which the Tribunal has disbelieved the case of the assessee that the diary did not belong to it is that the said diary contained certain entries debited to Sri Rajendra Kochar. According to the Tribunal a person who maintains his personal diary would not make debit entry in his own name. Now let us test this analogy on the facts of this case. Fortunately enough, in this case the assessee has also filed a photostat copy of the entries of the said diary. The said entries have not been controverted in the counter-affidavit. A perusal of the said entries also goes to show that Sri Rajendra Kochar has made entries 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 cannot be arrived at and upheld by this Court. That apart, I also find that there are various entries with regard to hotel expenses, cigarettes, fooding, clothing, washerman, etc. , in the said diary and that even daily opening cash balances have been struck down every day. A bare perusal of the nature of entries indicates that the said diary belongs to an individual and the items of various expenses debited therein cannot be expected to find place in the account books of a businessman. I am, therefore, of the opinion that there is force in the contention advanced by the learned counsel for the assessee that the findings recorded by the Sales Tax Tribunal to the effect that the said diary belonged to the assessee and did not belong to Sri Rajendra Kochar is either perverse or arbitrary and is liable to be set aside. This is all the more so in the face of not only the plea of denial of the assessee that the diary did not belong to the assessee but the assessee had led positive evidence in the shape of its statement and affidavit of Sri Kochar to establish that in reality the said diary belonged to Sri Kochar. The positive case set up by the assessee cannot be lightly brushed aside on the analogy which I have demonstrated above and leads to inconsistent results. Therefore, taking overall picture of the entries of the diary, such a rejection of the positive case of the assessee has to be based on sound reasons. But to find out as to whom the said diary belonged, appreciation of evidence 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 observations made above. Petition allowed. .;