M.S. Menon, J.
1. This is a petition under Section 66(2) of the Indian Income-tax Act, 1922, for requiring the Income-tax Appellate Tribunal (Madras Bench)to state a case and refer the same to this, court. The assessment year concerned is 1950-51 (accounting period: year ending 31-3-1950) and the questions of law which according to the petitioner arise out of the order of the Appellate Tribunal in I. T. A. No. 582 of 1955-56 are:
(1) Whether in the circumstances of the case there was any material for holding that a sum of Rs. 30,000 out of Rs. 60.000 invested in the partnership business started by the assessee's sons on 18-8-48 was income received by the asses-see from undisclosed sources in the accounting year ended 31-3-50? (2) whether there was no onus on the Income-tax Department to show that there were some source from which the assessee could make this income during the period of 41/2 months '.
2. The second question was not specified in the petitioner's application to the Appellate Tribunal under Section 66 (1) of the Indian Income-tax Act, 1922. and does not therefore arise for consideration. As stated in Mehta Parikh and Co. v. Commr. of Income-tax : 24ITR207(Bom) :
'the jurisdiction of the High Court under Section 66 (2) only arises when on an application being made under Sub-section (1) the Appellate Tribunal refuses to state the case on the ground that no question of law arises. Therefore there must be a refusal by the Tribunal to state the case and it is only when there is such a refusal that the assessee or the Commissioner may apply to this Court and if this Court is not satisfied with the correctness of the decision of the Appellate Tribunal then this Court can require the Tribunal to state the case and to decide it. But we have no jurisdiction to ask the Tribunal to state a, case on a particular question of law when the assessee himself has never asked the Tribunal to refer such a question to the High Court.'
3. We are satisfied that the first of the two questions, however, does arise and that we should require the Income-tax Appellate Tribunal (Madras Bench) to state the case and to refer it under Section 66 (2) of the Indian Income-tax Act, 1922.