R.N. Misra, J.
1. On an application by the assessee under Section 24(2) of the Orissa Sales Tax Act, this Court directed the Tribunal to state a case and refer the following question for the opinion of the Court:
Whether, in the facts of the case, the Tribunal has not gone wrong in placing the burden on the assessee to establish that the business in question was separate business of his ?
2. S.K. Rathor as proprietor of a firm M/s. Karsan Rice Mills was given registration certificate No. CUIE 153. Rathor started a new business by the name and style of M/s. Laxman Fertilisers with effect from 20th January, 1973 and obtained a new registration bearing No. CUIE 1832. For the quarter ending 31st March, 1973, the turnover of the new business came to Rs. 25,166.60. The assessing officer assessed him for this quarter and raised a demand by applying Section 4(5) of the Act. The assessee took the stand that the earlier business of M/s. Karsan Rice Mills belonged to the H.U.F. of which he was a member. Description as proprietor in the earlier certificate of registration was apparently a mistake and the department had ample material before it for treating the earlier business to be of the H.U.F. As the present business was his own, there was no scope for holding that both the businesses belonged to the same concern and Section 4(5) of the Act was applicable.
3. The assessee's contention having been negatived in the forums below, the assessee appealed to the the Tribunal. The Tribunal held :.In this case the appellant, Karsan Rice Mills, is liable to pay tax under this Act. The proprietor Sri S.K. Rathor of the said Karsan Rice Mills had started this new business under the style of M/s. Laxman Fertilisers. Then as per the proviso (sic) to Section 4(5) this newly started business shall be liable to pay tax from the date of commencement of the business. Of course, the appellant has obtained registration certificate on individual status showing as a proprietary concern. It is not disputed that Karsan Rice Mills has been granted registration certificate as H.U.F. But it was for the proprietor of the present firm to prove that without nucleus of the joint family business the present new business has been started. Though there was no bar for a member of the H.U.F. concern to start a new business while the H.U.F. was going on continuing the old business, the proprietor of the new business should prove that the funds of the joint family business were not utilised and this new business was started independent of such funds. In this case no such proof has been adduced by the proprietor of the appellant-firm. Therefore, the forums were justified in holding that the present firm is an additional business of Karsan Rice Mills....
4. Before us there was some amount of dispute as to the correctness of the statement in the Tribunal's order that the earlier certificate of registration was granted to the H.U.F. business. Since the learned standing counsel was vehement in his submissions, we called upon him to produce the records of registration. He produced some papers, but not the application made by the dealer in the earlier matter. There is abundant material in the record to hold that the department had accepted the earlier business to belong to the H.U.F. There is no presumption in law that the business of a coparcener in his own name is of the H.U.F. Law is settled beyond dispute that burden lies on the party who alleges that a business of the individual coparcener belongs to the H.U.F. to establish it. The Tribunal clearly went wrong in placing the burden on the assessee. It would have been appropriate to look for evidence from the side of the department in support of the stand that the present business also belonged to the H.U.F. Apparently, it is the business of an individual coparcener. The certificate of registration is to that effect. There is no material at all to support the stand that the pre-existing H.U.F. is also the proprietor of the present business-a premise on which Section 4(5) of the Act becomes applicable. We would accordingly answer the question by saying:
In the facts of the case, the Tribunal has gone wrong in placing the burden on the assessee to establish that the business in question was separate business of his.
There would be no order for costs.
N.K. Das, J.
5. I agree.