LAXMAN FERTILISERS Vs. STATE OF ORISSA

JUDGEMENT

(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 :

(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.) 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 steeled 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 :