B. K. MEHTA,, J. ( 1 ) MEHTA J. Rule. Mr. G. N. Shah appears for the Commissioner of Income-tax the respondent herein and waives service of the Rule. ( 2 ) RULE is made absolute for the following reasons The applicantassessee was the Karta of smaller HUF of Rameshchandra Jivanji Bhavsar. There was also a bigger HUF of Jivanji Govindji Bhavsar consisting of Jivanji his wife Jashoda Rameshchandra the present applicant and Pramilaben the applicants wife. In 1958 the said Jivanji died and the bigger HUF was reduced to a single co-parcenary with two female members. In S. Y. 2026 corresponding to assessment year 1970-71 a partial partition was claimed to have taken place between Rameshchandra and his widowed mother Jashoda in respect of the business capital of the bigger HUF of Jivanji Govindji Bhavsar. The said partial partition was recognised by the Income tax Officer under sec. 171 of Income-tax Act by his order of 15/11/1971 The applicant Rameshchandra and his mother Jashoda formed a partnership by bringing in capital received by him on the said partial partition which had taken place at the end of S. Y. 2025 that is 9/11/1969 The assessee Rameshchandra was assessed in the status of HUF from assessment years 1970-71 to 1974-75 and in respect of assessment year 1975 also the return was filed by him showing the HUF status and the income from share in the said partnership firm. This was on the basis that Rameshchandra had wife and sons constituted smaller HUF and the share obtained on partition would belong to his smaller HUF as distinguished from the bigger HUF of Jivanji Govindji Bhavsar. The said bigger HUF did not file any return of income after the partial partition which took place at the and of S. Y. 2025 right upto assessment year 1974-75 as there was nil income from the property below the taxable limit. However from S. Y. 2030 that is assessment year 1975-76 Rameshchandra as a Karta of bigger HUF of Jivanji Govindji Bhavsar started business in grains and filed the return. According to the assessee therefore there were two HUF -one bigger HUF of Jivangi Govindji Bhavsar and another smaller HUF of Rameshchandra which existed simultaneously according to the assessee. However from S. Y. 2030 that is assessment year 1975-76 Rameshchandra as a Karta of bigger HUF of Jivanji Govindji Bhavsar started business in grains and filed the return. According to the assessee therefore there were two HUF -one bigger HUF of Jivangi Govindji Bhavsar and another smaller HUF of Rameshchandra which existed simultaneously according to the assessee. It was further contended on behalf of the assessee that that the partial partition effected by him and his mother regarding the business assets of the bigger HUF was valid. The Income-tax Officer held that there were no two HUF in existence and only the HUF which was in existence was of smaller HUF of Rameshchandra particularly because the bigger HUF had merged into smaller HUF in view of the fact that there was only one co-parcener and that the widowed mother had obtained her share in the co-parcenary property under sec. 6 of the Hindu Succession Act and so no longer further entitled to share on partition. He accordingly clubbed the income of both the HUFs in the assessment of the applicant assessee. ( 3 ) IN appeal to the Appellate Assistant Commissioner the Incometax Officers order was upheld. In further appeal to the Tribunal it was contended by the assessee that the partial partition was valid and in any case the order of the Income-tax Officer recognising this partial partition under sec. 171 could not be ignored unless it was set aside in appropriate proceedings and therefore it was not possible to assess the income of the original HUF as if the original HUF had continued to exist. An alternative contention was advanced that in any case the arrangement between the assessee and his mother was a valid family arrangement and therefore it should be given effect to. The Tribunal held that the partition between mother and son was not valid. The Tribunal also negatived the contention of treating this as a family arrangement. Inspite of this finding the Tribunal allowed the appeal upholding the contention that the order of the Income-tax Officer recognising the partial partition could not have been ignored and that the order operated till it was set aside in appropriate proceedings. The appeal of the assessee was therefore who by allowed with the result that the business income earned by the bigger HUF could not be clubbed with the income of the smaller HUF. The appeal of the assessee was therefore who by allowed with the result that the business income earned by the bigger HUF could not be clubbed with the income of the smaller HUF. In that state of affairs the applicant having succeeded wholly in appeal before the Tribunal could not have sought the reference. The Commissioner however sought the reference from the Tribunal under sec. 256 (1) of the incometax Act on the question as to whether the Tribunal was right in allowing the appeal by holding that till the order of the Income-tax Officer recognising the partial partition was set aside in appropriate proceedings it operated for all intents and purposes and therefore the income of bigger HUF could not have been clubbed with the smaller HUF. In that the applicant-assessee sought reference of two questions on the points of validity of partial partition and in any case it was a family arrangement which were negatived by the Tribunal. The Tribunal rejected application of the Commissioner under sec. 256 (1) with the result there was no occasion for the Tribunal to refer these two cross questions to this court. The Commissioner however moved this Court by the present Income-tax Application No 79 of 1983 seeking the order calling for the reference under sec. 256 (2) of the 1961 Act. This Court has made the Rule absolute calling for the statement of case as prayed for by the Commissioner. At the stage when the Tribunal was drawing up the statement of case for reference as directed by this Court the present applicant again approached the Tribunal for referring the two cross questions to this court along with the question called for by this Court at the instance of the Commissioner. The Tribunal found it difficult for stating the two cross questions as prayed for by the applicant without clarification in that behalf by this Court since this Court had called for the reference of one single question as prayed for by the Commissioner. It is in these circumstances that the present Misc. Civil Application has been moved by the applicant. ( 4 ) WE are of the opinion that the legal position has been clearly enunciated and settled by the decision of the Supreme Court in CIT Kerela v. V. Damodaran (1980) 121 ITR 572. After explaining the scheme of sec. It is in these circumstances that the present Misc. Civil Application has been moved by the applicant. ( 4 ) WE are of the opinion that the legal position has been clearly enunciated and settled by the decision of the Supreme Court in CIT Kerela v. V. Damodaran (1980) 121 ITR 572. After explaining the scheme of sec. 256 of the Income-tax Act 1961 which shortly stated enables an aggrieved party by the order of the Tribunal to seek reference. An aggrieved party is obviously that party which is aggrieved by the order of the Tribunal under sec. 254 deciding the appeal against it. In a given case the Tribunal under sec. 254 may decide the appeal partly against one party and partly against the other. In such cases each of the aggrieved parties have to seek reference and one aggrieved party cannot seek reference in respect of the decision of the Tribunal by which he is aggrieved in an application where the other party which is also aggrieved by the decision seeks reference. In other words an aggrieved party by the decision of the Tribunal under sec. 254 cannot seek reference in his capacity of non-applicant. However there may be cases where the Tribunal might have who by allowed the appeal on one or the other contention though negative some of the contentions urged in support of the appeal. In such cases the appellant before the Tribunal whose appeal has been allowed cannot be said to be an aggrieved party and cannot seek reference. However when the other party which is really aggrieved by the decision of the Tribunal in such cases seeks reference the appellant whose appeal has been allowed can move the Tribunal for making reference of the cross questions in respect of those contentions which have been negatived by the Tribunal (see Damodarans case (supra) at p. 578-79 ). The present case before us falls in that second category where the appeal of the assessee was wholly allowed on one point namely the order of the Income-tax Officer recognising the partial partition was good for all intents and purposes since it was not set aside and therefore could not have been ignored while rejecting the other contentions in support of the appeal namely on the validity of the partial partition and in any case to treat it as a family arrangement. We are of the opinion that the applicant-assessee is entitled to seek questions on these two points. Mr. G. N. Shah appearing for the Commissioner opponent before us urged that in as much as the assessee has not come under sec. 256 (2) before us when the Tribunal did not refer his cross questions while dismissing the application of the Commissioner for reference under sec. 256 (1) is not now competent to seek the direction from this Court by this Misc. Civil Application. We are afraid that the intention is not wellfounded for the obvious reason that the assessee was pot an aggrieved party who could have sought reference under sec. 256 (1) an therefore when his cross questions could not be referred to us since there was no occasion for the Tribunal to refer because the Tribunal has dismissed the application of the Commissioner for rephrases under sec. 256 (1) the assessee could not have come under 256 (2) at that stage. In the alternative Mr. Shah submitted that even if the Court is of the opinion that the Tribunal should refer the two cross questions as required by the assessee no directions is that behalf should be given since that would be tantamount to exercising the power under sec. 256 (2) without proper application made in that behalf which application could not have been moved for the obvious reason a its incompetence. In support of this contention Mr. Shah relied on this following observation made by the Supreme Court in V. Damodarans case (supra) at p. 578-79"in either case the party who is aggrieved and who desires a reference to the High Court must file a reference application for that purpose. It is not open to him to make a reference application filed by the other party the basis of his claim that a question of law sought by him should be referred. The second category consists of cases where the order made by the Appellate Tribunal under sec. 254 operates entirely in favour of one party although in the course of making the order the Appellate Tribunal may have negatived some points of law raised by that party. Not being a party aggrieved by the result of the appeal it is not open to that party to file a reference application. 254 operates entirely in favour of one party although in the course of making the order the Appellate Tribunal may have negatived some points of law raised by that party. Not being a party aggrieved by the result of the appeal it is not open to that party to file a reference application. But on a reference application being filed by the aggrieved party it is open to the non-applicant ill the event of the Appellate Tribunal agreeing to refer the case to the High Court to ask for a reference of those question of law also which arise on its submissions negatived in appeal by the Appellate Tribunal. It is as it were recognising a right in the winking party to support the order of the Appellate Tribunal also on grounds raised before the Appellate Tribunal but negatived by it". ( 5 ) WE do not find any compelling reason or any point in the above para which should deter us from issuing necessary directions calling upon the Tribunal to set out the two cross questions as required by the assessee. The observation which has been emphasised by us in the above paragraph does not warrant that it is only at the stage when an application for reference under sec. 256 (1) is made that this power of referring the cross questions can be exercised by the Tribunal In our opinion reading the observation in that limited way would defeat the very purpose which has been set out in the last lines of the paragraph set out above. The ultimate purpose is to enable a non-applicant to seek questions of law raising out of the order of the Tribunal under sec. 256. No doubt the part which has been emphasised in the above paragraph refers to the stage when the cross questions can be also referred for advice but to restrict that stage to the point of time when an application for reference is made before the Tribunal under sec. 256 is not warranted. The stage of making application is at the time when the aggrieved party makes an application for reference whether it is at the Tribunals level under sec. 256 (1) or at the High Courts level under sec. 256 (2 ). The power of the High Court under sec. 256 is not warranted. The stage of making application is at the time when the aggrieved party makes an application for reference whether it is at the Tribunals level under sec. 256 (1) or at the High Courts level under sec. 256 (2 ). The power of the High Court under sec. 256 (X) for directions to the Appellate Tribunal to state a case setting out the question of to ar seeking the advice thereon is coextensive with the power of the Tribunal to state a case under sec. 256 (1) (vide New Jahangir Vakil Mills Ltd. v. C I T (1959)37 ITR 11 and C I T v. Scindia Steam Navigation Co. Ltd. (1961) 42 ITR 589 ). In that view of the matter therefore we are of the opinion that this application should be allowed and the Rule is made absolute accordingly with no order as to costs. Application allowed. .