Govindan Nair, C.J.
1. All these references arise from the proceedings of the Tribunal in dealing with the question of fixation of the duty payable on the estate of deceased, Abdul Khader, who passed away on March II, 1964. Sub-section (6) of Section 63 was put into operation, and as there was dispute regarding the value of the property, an objection was raised by the appellant and the question was referred to two valuers, one nominated by the appellant and the other by the respondent. It appears that they acted each on his own and filed separate reports regarding the value of the property; the valuer nominated by the revenue on March 15, 1970, fixing the value at Rs. 16,84,000 and the respondent's nominee on January 7, 1970, fixing the value at Rs. 14,12,700. It was pointed out to the valuers that they should act jointly, inspect the properties jointly and then give their opinion. The valuers thereafter acted in unison, inspected the properties and filed their report on October 6, 1970, fixing the value at Rs. 14,11,000, the two valuers agreeing to the value. When the appeal came up for hearing before the Tribunal on October 20, 1970, an objection was raised on behalf of the revenue that the report dated October 6, 1970, which was jointly filed by the two valuers, was prepared by them without hearing the revenue and that, therefore, the said report should not be accepted. The Tribunal then directed that the revenue should be heard. After giving an opportunity to the revenue, the valuers, by letter dated March 10, 1971, stated that the earlier report dated October 6, 1970, required no modification. Yet another objection was raised before the Tribunal in regard to the acceptance of the report dated October 6, 1970, by contending that in view of the difference of opinion as is evident from the reports dated March 15, 1970, and January 7, 1970, the Tribunal should have acted under the proviso to Section 63(6) and should have referred the matter to a third valuer. By order dated October 7, 1971, this objection was overruled by the Tribunal. The Tribunal was moved by the revenue to refer the question :
'Whether, on the facts and in the circumstances of the case, the order of the Appellate Tribunal rejecting the request of the revenue to refer the matter of valuation to the third valuer is proper and valid 'to this court. The Tribunal referred that question to this court and that is the subject-matter of T.C. No. 274 of 1972.
2. After overruling the objection based on the proviso raised by the revenue, the Tribunal proceeded to deal with the appeal, accepted the valuation report of the two valuers dated October 6, 1970, and disposed of the appeal in terms of the values fixed by the valuers. Against the said order, an application was made by the revenue, and it was prayed that four questions may be referred to this court. The Tribunal referred only two questions and those are the questions in T.C. No. 8 of 1973, which read thus:
'1. Whether, on the facts and circumstances of the case, the valuation reports of the two valuers, dated October 6, 1970, and the subsequent letter dated March 10, 1971, stating that their earlier reports, dated October 6, 1970, need no revision or amendment can be considered and acted upon by the Appellate Tribunal with a view to pass an order in appeal in conformity therewith ?
2. Whether the Tribual was right in law in refusing to go into the validity and the correctness of the valuers' report on the ground that the report was an award under the Arbitration Act and questions relating to the validity of such an award could be agitated only before the court and not before the Appellate Tribunal ?'
3. Then this court was moved to compel the Tribunal to refer the two questions which the Tribunal refused to refer, and according to the direction of this court, those questions were also referred to this court and those questions form the subject-matter of T.C. No. 61 of 1975. These questions are the following :
'1. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal's refusal of the department's request to refer the matter of valuation to the third valuer is proper and valid in law and is also a reasonable view to take ?
2. Whether, on the facts and in the circumstances of the case and on the materials on record, the Tribunal was justified in law in fixing the value of the properties disputed before the arbitration of two valuers at Rs. 14,11,000 for the purpose of assessment to estate duty ?'
4. It is necessary to read Sub-sections (5) and (6) of Section 63 of the E.D. Act, 1953:
'(5) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it think fit, and any such orders may include an order enhancing the estate duty payable or penalty:
Provided that no order enhancing the estate duty payable or penalty shall be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement. (6) Where the appellant objects to the valuation of any property, the Appellate Tribunal may, and if the appellant so requires, shall, refer the question of disputed value to the arbitration of two valuers, one of whom shall be nominated by the appellant and the other by the respondent, and the Tribunal shall, so far as that question is concerned, pass its orders under Sub-section (5) conformably to the decision of the valuers:
Provided that if there is a difference of opinion between the two valuers, the matter shall be referred to a third valuer nominated by agreement, or failing agreement, by the Appellate Tribunal, and the decision of that valuer on the question of valuation shall be final.'
5. From a reading of these Sub-sections it is clear that the power of the Tribunal to 'pass such orders as it thinks fit' as is seen from Sub-section (5) of Section 63, is controlled by the later part of Sub-section (6) of Section 63, where the Tribunal is required, so far as the question regarding the valuation is concerned, to pass its orders under Sub-section (5) 'conformably to the decision of the valuers'.
6. As regards T.C. No. 274 of 1972 is concerned, we do not think that a reference should have been made at all, for, the reference seems to have been made from an order passed on application for certain procedure being adopted. That order by no means could be said to be an order disposing ofthe appeal under Section 63(5). That being so, there is no scope for making an application for reference and we consider the reference to be incompetent. We, accordingly, decline to answer the question raised in T.C. No. 274 of 1972.
7. Now, turning to the first question in T.C. No. 8 of 1973, in the light of what we have said earlier in the judgment, the answer should be in the affirmative. We answer the question accordingly. The Tribunal could have acted on the report submitted by the valuers dated October 6, 1970, and that is what they did. This is correct.
8. What we have said in regard to question No. 1 would necessarily lead to the conclusion that question No. 2 has also to be answered against the revenue. The Tribunal was right in law in refusing to go into the validity and the correctness of the valuers' report. We need not consider the reasoning of the Tribunal and the reference to the Arbitration Act, since we are only concerned with the decision of the Tribunal. The E.D. Act contains its own provisions for the final decision in the matter of valuation and the portions of Sub-section (6), which we have already emphasised, as well as the proviso to Sub-section (6) leaves the matter beyond doubt that the Tribunal is bound to proceed on the basis of the decision of the valuers on the question of valuation. This question, therefore, is also answered against the revenue and in favour of the assessee.
9. Now, passing on to T.C. No. 61 of 1975, we answer question No. 1 against the revenue. The reports filed separately by the valuers on January 7, 1970, and March 15, 1970, cannot be treated to be reports at all as the valuers are bound to act in unison and not separately, though, while acting together, as a body they may differ. We consider that there was only one report in the case and that was the one dated January 6, 1970, which was a joint report filed by the two valuers. This being so, there is no question of the proviso coming into operation. The Tribunal could and should act under Sub-section (6).
10. The Tribunal being obliged to act on the valuation fixed by the valuers it was right in fixing the valuation at Rs. 14,11,000 which was the value fixed by the valuers in their report dated January 6, 1970. We, therefore, answer question No. 2 in T.C. No. 61 of 1975, by stating that the Tribunal was justified and acted correctly in law in fixing the value at Rs. 14,11,000.
11. We answer the questions referred in T.C. Nos. 8 of 1973 and 61 of 1975 on the above terms. We direct the revenue to pay the costs of the accountable person and fix the counsel's fee at Rs. 350 one set.