JUDGMENT

SHAH J.-The High Court of Judicature at Bombay refused to call upon the Income-tax Appellate Tribunal to state a case and to submit questions of law arising out of the order of the Tribunal. The assessee appeals to this court with special leave.

In November, 1947, the assessee migrated from Pakistan to India and set up a money-lending business in Bombay. The assessee opened a set of books in the name of his wife Gopi Bai, and made credit entries therein totalling Rs. 7,85,712 between 1947 and 1952. In proceedings for assessment of income-tax, the Income-tax Officer accepted the claim of the assessee that out of the amount credited, Rs. 4,51,843 represented the value of assets brought by the assessee when he migrated to India and rejected his claim for the balance. The Income-tax Officer, in proceedings for reassessment commenced under section 34 of the Income-tax Act, brought to tax Rs. 79,989 in the assessment year 1948-49, Rs. 1,89,800 in the year 1949-50 and Rs. 64,880 in the year 1952-53. The Appellate Assistant Commissioner accepted the case of the assessee that the three amounts were part of the assets brought with him either in cash or as jewellery when the assessee migrated to India. The Income-tax Appellate Tribunal confirmed the order of the Appellate Assistant Commissioner in so far as it related to the assessment years 1948-49 and 1949-50. But the Tribunal held that the assessee had failed to prove the claim that Rs. 55,293, out of the amount of Rs. 64,880 assessed to tax in 1952-53, represented the value of ornaments, which the assessee claimed were sold by him after the death of his wife, Gopi Bai. The Tribunal accepted the claim of the assessee that the balance of Rs. 9,537 represented cash gifts received by Ishwari Bai. The Tribunal accordingly set aside the order of the Appellate Assistant Commissioner and directed that Rs. 55,293 be brought to tax in the assessment year 1952-53.

The assessee then applied to the Tribunal praying that a statement of the case be drawn up and the following questions arising out of the order of the Tribunal be submitted to the High Court :

"(a) Whether there was evidence before the Tribunal to hold that the credit of Rs. 55,293 in the account of the wife of the assessee did not represent the sale proceeds of her gold ornaments?

(b) If the answer to question No. 1 is in the affirmative, whether the sum of Rs. 55,293 could be held as the undisclosed income of the assessee himself ?

The Tribunal rejected the application holding that they had not accepted the case of the assessee about the sale of the ornaments of Gopi Bai.

The assessee then applied to the High Court of Bombay for an order under section 66(2) of the Indian Income-tax Act directing the Tribunal to state a case and refer the questions of law arising out of the order of the Tribunal. The High Court rejected the application.

It appears from the order of the Appellate Assistant Commissioner that the assessee had produced considerable documentary evidence in support of his case that in May, 1947, a quantity of gold jewellery was given by him to a refinery for melting and that 518 tolas of gold were sold by him on May 17, 1951. It was the case of the assessee that gold jewellery melted was out of the "outmoded ornaments" of Gopi Bai, his first wife. The Appellate Assistant Commissioner, in dealing with the claim for excluding Rs. 55,293 from the amount brought to tax on reassessment observed :

"......the appellant has filed a copy of the voucher for the sale proceeds of 518 tolas of gold sold after the refinement to Ambalal Amichand of Bombay on May 17, 1951. The sale proceeds are duly supported with vouchers as also with the melting charges paid and also with a list of the ornaments received by her from several relatives...... On the face of the overwhelming evidence produced by the appellant, I am unable to understand the Income-tax Officer s contentions that the credits did not represent the sale proceeds of gold or th