Sankar Prasad Mitra, J.
1. This is a reference under Section 27(3) of the Wealth-tax Act, 1957. The questions on which the Tribunal has been directed to state the case are as follows:
'(1) Whether, on the facts and the circumstances of the case, the value of the goodwill of the assessee as stated in the valuers' report, dated 22nd July, 1963, was calculated in accordance with law
(2) Whether, on the facts and in the circumstances of the case, the' decision of the valuers as stated in the said report without any reason in support of it was in accordance with law
(3) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in disposing of the appeal on the basis of the said decision of the valuers '
2. The assessment year is 1958-59, the relevant valuation date being the 31st December, 1957. The Wealth-tax Officer computed the value of the respondent's net assets on a global basis in terms of Section 7(2)(a) of the Wealth-tax Act by deducting the liabilities from the assets as appearing in the respondent's balance-sheet drawn on 31st December, 1957. In the balance-sheet ' goodwill ' has been shown on the assets side at a figure of Rs. 10 lakhs. The Wealth-tax Officer included this ' goodwill' in the aggregate value of the assets.
3. Before the Appellate Assistant Commissioner it was contended inter alia, that the value of the goodwill should have been excluded from the computation of the net wealth of the company. The Appellate Assistant Commissioner, following his order relating to the respondent's appeal for the year 1957-58, rejected such contention and confirmed the action of the Wealth-tax Officer.
4. Counsel for the respondent argued before the Tribunal that the goodwill was nil and, as such, the Appellate Assistant Commissioner was not justified in sustaining the addition of the sum of Rs. 10 lakhs. He submitted that the question of disputed value of the goodwill should be referred to the arbitration of two valuers under the provisions of Section 24(6) of the Act. These provisions are as follows :
' 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 the disputed value to the arbitration of two valuers, one of (sic) 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 (4) 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. In accordance with the above provisions, the Tribunal by its order dated the 2nd April, 1963, referred the question of valuation of the 'goodwill ' to two valuers being the nominees of the respective parties. The valuers submitted a unanimous report on the 22nd July, 1963, stating that the value of the 'goodwill ' as on the 31st December, 1957, was 'nil'. Conformably to the valuers' decision the Tribunal directed that the value of the 'goodwill' should be taken at 'nil' in the assessment of the relevant year.
6. In this court, counsel for the Commissioner of Wealth-tax has ably argued that the valuers' order of report or decision should be set aside on the ground that it contains no reasons in support of the finding that the value of the 'goodwill ' was ' nil '. As this was a matter of first impression, we were particularly anxious to express our opinion on this point but our difficulty is that under Section 27 of the Act our jurisdiction is limited only to questions of law arising out of the order of the Tribunal. In Commissioner of Income-tax v. Scindia Steam Navigation Co. Ltd., : 42ITR589(SC) , the Supreme Court has clearly laid down that when a question of law is neither raised before the Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the findings given by it.
7. In the instant case the Tribunal's order does not show that the point was considered by it and in the documents included in the paper book also there is no indication that the point was raised before the Tribunal, In these circumstances, we have looked into the petition and the affidavit-in-opposition filed in this court for a reference under Section 27(3) of the Act. In the petition filed on the 19th March, 1966, it is not stated that the point urged by learned counsel for the Commissioner before us was raised. On the contrary, in the affidavit-in-opposition of Parbati Charan Gangully affirmed on the 29th August, 1966, paragraph 12 runs thus.:
' I further say that question Nos. 1 and 2 as suggested by the applicant do not arise out of the order of the Tribunal as the said questions were Hot raised before the Tribunal nor has the Tribunal dealt with the said questions in its order......'
8. The department did not file any affidavit-in-reply to controvert the averments aforesaid. And when the final order was made by the court for a reference under Section 27(3), counsel appearing 'for the department didnot have it recorded also that the averments in the affidavit-in-oppositionwere not admitted.In these premises, we are unable to entertain in this reference questions Nos. 1 and 2 and decline to answer them. So far as question No. 3is concerned, the respondent is right in contending that the Tribunal'sorder cannot be challenged in view of the provisions of Section 24(6) and theTribunal had to make an order conformably with the valuers report. Theanswer to this question is, therefore, in the affirmative and in favour of therespondent. Each party will bear and pay its own costs.
A.N. Sen, J.
9. I agree.