Burden of proof in HUF business disputes: department must show family ownership before applying sales tax aggregation.

The Tribunal erred in shifting the burden to the assessee to prove that the later concern was separate, because there is no legal presumption that a business carried on in an individual coparcener's name belongs to the Hindu undivided family. The party asserting that an individual business is really a family business must prove that position. As no material showed that family funds or family business was used for the later concern, section 4(5) of the Orissa Sales Tax Act could not be applied on the assumption that both businesses were the same. The later business was therefore not shown to be HUF business.

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Issues: Whether the Tribunal was right in placing the burden on the assessee to prove that the later business was his separate business so as to attract section 4(5) of the Orissa Sales Tax Act.

Analysis: The record showed that the earlier business had been accepted by the department as belonging to a Hindu undivided family, but there was no legal presumption that a business carried on in the name of an individual coparcener belonged to the family. The burden lay on the party asserting that an individual business was really a family business. The Tribunal erred in requiring the assessee to prove the negative, instead of requiring the department to support its stand that the later business also belonged to the Hindu undivided family. In the absence of material showing that family funds or family business carried on the later concern, section 4(5) could not be applied on the assumption that both concerns were the same.

Conclusion: The Tribunal wrongly placed the burden on the assessee, and the later business was not shown to be the Hindu undivided family business.

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