JUDGMENT PRAKASH KRISHNA, J. - The above revision is directed against the order dated October 23, 2007 passed by a single member Bench of Trade Tax Tribunal, Varanasi in Second Appeal No. 73 of 2007 connected with Second Appeal No. 153 of 2007 relating to assessment year 2001-02 whereby and whereunder the Tribunal has allowed the appeal filed by the Department and dismissed the appeal of the dealer - applicant and restored the assessment order in its entirety. The dealer - applicant is carrying on the business of sale and purchase of machinery parts. For the assessment year 2001-02 it produced the account books before the assessing officer for verification. The assessing officer rejected the account books on the basis of a document being bill No. 7099 dated March 13, 2002. The plea of the applicant that the said bill does not relate to it was not accepted by the order dated March 29, 2006. In the said bill a sale transaction of Rs. 12,760 is recorded. On the basis of the said document, the assessing officer assessed the suppressed taxable turnover to the tune of Rs. 21,00,000. The said order was challenged in Appeal No. 490 of 2006 before the first appellate authority who by the order dated February 6, 2007 allowed the appeal in part by reducing the suppressed turnover to Rs. 10,00,000. The Department as well as the dealer both preferred separate second appeal before the Tribunal which have been disposed of by a common order under revision. The Tribunal as mentioned above has set aside the order of the first appellate authority and restored that of the assessing officer. The learned counsel for the applicant submits that the authorities below including the Tribunal were not justified to reject the account books which have been maintained by the dealer truly and correctly in the ordinary course of business. On the basis of only one document, namely, cash memo No. 7090 dated March 13, 2002 for Rs. 12,760 the account books of the appellant were rejected. The said document was not recovered or found from the business place or from any other place having connection with the dealer. The mobile squad, Varanasi while checking recovered the said purcha from a third party. A request made by the applicant to summon the said third party for cross-examination was not acceded to by the Department. The said document was not recovered or found from the business place or from any other place having connection with the dealer. The mobile squad, Varanasi while checking recovered the said purcha from a third party. A request made by the applicant to summon the said third party for cross-examination was not acceded to by the Department. This amounts to violation of principle of natural justice. The Department should have produced the said third party for cross-examination if it was going to rely upon the document. In the alternative, it was submitted that there being no nexus of the estimated turnover with the entry in the purcha, the assessed turnover is highly arbitrary. The learned standing counsel on the other hand submits that the third party could not be produced for cross-examination as it was not a registered dealer and the turnover assessed by the Tribunal is basically a question of fact which cannot be interfered with in the revision filed under section 11 of the U.P. Trade Tax Act. Considered the respective submissions of the counsel for the parties and perused the record. Although in the memo of revision three questions of law have been raised but the learned counsel for the applicant during the course of argument submitted that the following questions of law are involved in the revision. "(i) Whether, on the fact and circumstances of the case, the Tribunal was justified in rejecting the account books of the applicant without providing opportunity to cross-examine the person from whose possession the alleged cash memo was seized and in not confronting the document to the applicant ? (ii) Whether, on the facts and circumstances of the case, the Tribunal was justified in law in upholding the order of the Assistant Commissioner (Trade Tax), Sector 7, Varanasi increasing the sales turnover of the revisionist beyond twenty per cent in view of the decision of the honourable court in Purana Toha Bhandar Auraiya v. C.T.T., U.P. ?" The Tribunal has not noticed any defect in the maintenance of the account books of the applicant. There is no finding by the authorities that the applicant has not maintained the account books truly and correctly in the ordinary course of the business. It is not the case of the Department that the return filed by it was either incorrect return of turnover or incomplete. There is no finding by the authorities that the applicant has not maintained the account books truly and correctly in the ordinary course of the business. It is not the case of the Department that the return filed by it was either incorrect return of turnover or incomplete. The only ground which has been found favour is that the mobile squad, Varanasi recovered a cash memo No. 7090 dated March 13, 2002 for Rs. 12,760 from the possession of the third party and the said entry could not be verified from the account books maintained by the applicant. The case of the applicant noticed above, was that the said cash memo was not issued by it and has no connection with its business. The authorities below on the fact that the said transaction does not find place in the accounts of the dealer, have drawn an adverse inference against. The question is whether there was any justification to draw an adverse inference on this fact-situation. Reliance was placed on a decision of Commissioner of Sales Tax v. Faqir Chand Hazari Mal [1981] UPTC 656 by the learned counsel for the applicant in support of his submission. Section 7 of the U.P. Trade Tax Act casts legal obligation on every dealer who is able to pay tax under the Act to submit return of his turnover within the specific time. Under the said section, a dealer is required to maintain account books truly and correctly in the course of business. Under sub-section (2) of section 7 if the assessing authority after making such enquiry as he considers it necessary is satisfied that the return submitted by the dealer is correct and complete he shall assess the tax on the basis thereof. If the assessing authority finds that the return of turnover submitted by the assessee is incorrect or incomplete, the assessing authority shall, after making such inquiry as he considers necessary, determine the turnover of the dealer to the best of his judgment and assess the tax on the basis thereof, as provided by sub-section (3) of section 7 of the Act. Under the proviso to sub-section (3) of section 7, the onus lies on the dealer to prove the correctness and completeness of the return submitted by it and for that purpose it has to be given a reasonable opportunity. Under the proviso to sub-section (3) of section 7, the onus lies on the dealer to prove the correctness and completeness of the return submitted by it and for that purpose it has to be given a reasonable opportunity. It has been judicially held that this opportunity includes an opportunity to cross-examine. It is also equally settled that the account books of a dealer should not be rejected lightly. The assessing officer gets jurisdiction to make a best judgment assessment only on the conditions as mentioned in sub-section (3) of section 7, i.e., where the return submitted by a dealer is "incorrect" or "incomplete". The apex court in State of Kerala v. K. T. Shaduli Yusuff [1977] 39 STC 478; [1977] UPTC 363 has held that fulfilment of one of these two requirements is therefore a condition precedent to the conferment of jurisdiction by the assessing officer to make assessment to the best of his judgment. It further provides that the requirement is that the assessee should be given a reasonable opportunity of being heard. The phrase as occurred in the Kerala General Sales Tax Act embodying the audi alteram partem rule, more or less the similar phrase namely "shall be given a reasonable opportunity of proving the correctness and completeness of any return" has been used in the proviso to sub-section (3) of section 7 in the U.P. Trade Tax Act and therefore the law laid down by the apex court is fully applicable to section 7(3) of the Act, also. In Commissioner of Sales Tax v. Faqir Chand Hazari Mal [1981] UPTC 656, this court placing reliance upon the judgment of the apex court in the case of State of Kerala v. K. T. Shaduli Yusuff [1977] 39 STC 478 (SC); [1977] UPTC 363 held that assessment is the responsibility of the Department. The burden to prove that sale and purchased taxable lies on it. While determining it the Department can rely on evidence which is admissible and pass the order after affording opportunity to the dealer. The burden to prove that sale and purchased taxable lies on it. While determining it the Department can rely on evidence which is admissible and pass the order after affording opportunity to the dealer. Explaining the word "admissible" it has been provided therein that it should not be understood in the strict sense of the Evidence Act "but it cannot admit of any doubt that no material can be relied with which the assessee is not confronted." The above ratio is fully applicable to the facts of the present case in as much as from the very beginning the applicant has come out with the case of categorical denial with respect of purcha, i.e., cash memo No. 7090. In spite of demand for cross-examination put forward by the applicant, the Department failed to produce the third party from whose possession the said purcha was recovered on the pretext that the said third party is un unregistered dealer. If the Department intended to place any reliance upon the said purcha it was incumbent upon it to have produced the said person for cross-examination by the applicant. Due to non-production of such third party for cross-examination, the said purcha cannot be treated as a material to discard the book version of the dealer - applicant. At the most, the recovery of purcha may create a doubt about the correctness of the account books of the applicant but this cannot be a ground for the rejection of the account books. Suspicion howsoever strong, cannot take place of evidence, is well-settled principle of law. The authorities should have examined the account books more thoroughly, to deduct incorrectness, if any, therein. In view of the above discussion, I am of the view that the said purcha could not be treated as a material to reject the book version of the dealer - applicant, specially when the said purcha was not recovered from the possession of the applicant and was allegedly recovered from the possession of the third party who had no connection with the applicant. The authorities below including the Tribunal, thus were not justified in not accepting the book version of the applicant. Their finding in this regard is vitiated as it has been based on no legal evidence. Viewed as above, it is held that the Tribunal was not justified in restoring the assessment order and upholding the rejection of the account books. The authorities below including the Tribunal, thus were not justified in not accepting the book version of the applicant. Their finding in this regard is vitiated as it has been based on no legal evidence. Viewed as above, it is held that the Tribunal was not justified in restoring the assessment order and upholding the rejection of the account books. The first question is decided accordingly and the second question does not require any adjudication. The revision succeeds and is allowed. The order of the Tribunal dated October 23, 2007 is set aside and the appeal filed by the applicant before the Tribunal stands allowed and the appeal of the Department stands dismissed. The revision is allowed with cost of Rs. 2,000.