BERI, C.J.—This is an application under sec. 64(3) of the Estate Duty Act, 1953 (hereinafter called The Act) for directing the Income-tax Appellate Tribunal Jaipur Bench (hereinafter called The Tribunal) to state the case and to refer two questions of law arising out of its order dated December, 10, 1971, in the Estate Duty Appeal No. 3 of 1971-1972 to this Court which the Tribunal had refused to do by its order dated April 27, 1972. 2. Shri Manilal Shivlal of Kota (hereinafter called the deceased) died on February 9, 1965 and his widow Smt. Shanta Ben is the accountable person for the purposes of the Act. The deceased carried on business as the sole distributor of a reputed brand of bidi under the name of Chandulal Jagjivendas & Co., Bhawani Mandi. In 1953 a partnership firm of the same name was constituted. The partners of this firm were the deceased and his brother Purshottamdas Patel. Their shares were 75 per cent and 25 per cent respectively. From the assessment year 1963-64, however, their shares were changed and became 56 per cent and 44 per cent respectively. 3. While assessing the value of the estate of the deceased the Assistant Controller of the Estate Duty valued the good-will of the deceaseds share in the partnership at Rs. 2,00,000/- and added it in the dutiable deceased of the estate. This figure of Rs. 2,00,000/- was rounded up. The principle applied for calculating the value of good will was that three years super profits were first ascertained and therefrom were deducted (a) the interest on the capital invested and (b) the salaries of the partners nationally fixed. The share of the profits of the deceased for the preceding five years was at Rs. 5,00,000/-. The Assistant Controller calculated the value of the goodwill at three years super profits after deducting six per cent interest on the capital employed and Rs. 12,000/- as salary of the applicant out of the profits and thus he rounded up the figure at Rs. 2,00,000/-. 4. In between the period of January 26, 1950 to March 31, 1951, the deceased carried the business as a sole proprietor. He had paid sales tax in the sum of Rs. 1,17,287. The deceased had disputed this liability and it appears that the matter was under consideration and was settled later. The amount, however, was refunded on 16-2-1962. 2,00,000/-. 4. In between the period of January 26, 1950 to March 31, 1951, the deceased carried the business as a sole proprietor. He had paid sales tax in the sum of Rs. 1,17,287. The deceased had disputed this liability and it appears that the matter was under consideration and was settled later. The amount, however, was refunded on 16-2-1962. It was credited to the profit and loss account of the partnership fiim and was divided among the partners according to their share at that point of time which was 75 per cent and 25 per cent. What fell to the share of Purshottamdas Patel came to Rs. 29,322. At the time of the assessment of the firm to the income-tax for the year 1962-63, the Income-tax Officer had taken this refund amount as income of the firm but on an appeal by the assessee firm the Appellate Assistant Commissioner accepted the contention of the appellant that only the deceased was entitled to the refund and not the firm and therefore deleted the addition of the refund amount of Rs. 1,17,287/- from the income of the firm. On this basis the Assistant Controller of the Estate Duty included the entire amount of Rs. 1.17,287/- in the estate of the deceased. An appeal was taken by the accountable person and the Zonal Appellate Controller of Estate Duty by his order dated January 7, 1971 held that the valuation of good-will by the Assistant Controller at three years super profits was fair and proper. He, however held that the profit of the year 1962-63 had included an amount of Rs. 1,17,287/- received by way of refund of sales-tax due earlier but this amount could not be included while calculating the good-will. On the question of Rs. 29,32/- the Zonal Appellate Controller affirmed the order of the Assistant Controller. 5. A second appeal by the accountable person was taken to the Tribunal and it was held that since the share of the deceased the firm was only 56 per cent at the time of his death the valuation of deceaseds share and good-will should be calculated at fifty six per cent only. It was further held that 2 years purchase at super profits basis after the allowance of interest at twelve percent and remuneration of partners at Rs. 12,000/- per annum should be considered as fair and reasonable. On the point of Rs. It was further held that 2 years purchase at super profits basis after the allowance of interest at twelve percent and remuneration of partners at Rs. 12,000/- per annum should be considered as fair and reasonable. On the point of Rs. 29,322/- the Tribunal held that since the whole of the refund amount was kept in the partnership business one fourth share of this amount fell to the share of the other partner namely Purshottamdas Patel and therefore the whole amount could not belong to the deceased. The Tribunal accordingly deleted the sum of Rs. 29,322/- from the estate of the deceased. 6. Feeling aggrieved by the Tribunals order aforesaid the Controller of Estate Duty Rajasthan Jaipur made application for reference under sec. 64(1) under the Estate Duty Act requiring the Tribunal to refer to this Court the following questions of law arising out of its order dated December 10, 1971 : (1) Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the share of good-will of deceased may be arrived at on the basis of two years purchase of super profits in the place of three years as fair and reasonable without assigning any reason ? (2) Whether on facts and in the circumstances ol the case the Tribunal was right in holding that the amount of Rs. 29,322/- is deductible from the estate of the deceased when the entire amount of refund of Sales tax belonged to the deceased even if it is presumed that the decision of the A. T. that the sum of Rs 29,322/- belonged to Shri Purshottamdas, the other partner is correct despite the fact that the provisions of sec. 10 of the Estate Duty Act, 1953 are applicable? (The grammar of the question has been left untouched). 7. The Tribunal by its order dated April 27, 1972, rejected the reference application. The first question was not referred because the Tribunal held that it was a question of fact. The second question was declined to be referred for the reason that the ground regarding the applicablity of sec. 10 of the Act was not raised before the Tribunal and, therefore, the question could not be said to arise from the order of the Tribunal to refer the question the Controller of Estate Duty Rajasthan Jaipur has come up before us under sec. 10 of the Act was not raised before the Tribunal and, therefore, the question could not be said to arise from the order of the Tribunal to refer the question the Controller of Estate Duty Rajasthan Jaipur has come up before us under sec. 64(3) of the Act. 8. Mr. L. R. Mehta, learned counsel for the accountable person urged that the first question relating to the good-will wherein the Tribunal had varied the percentage for the purposes of its calculation is largely and basically a question of fact. 9. Mr. S. K. Mal Lodha, however, urged that the mode of calculation of goodwill involved basic principles of law and accountancy and was essentially a question of law. 10. Let us examine the decided cases to which our attention was invited. 11. In Jogta Coal Co. Ltd. vs. Commr. of Inc. Tax(l) where their Lordships of the Supreme Court observed that the question whether on the interpretation of the sale deed it could be said that any good-will was purchased by the appellant and whether the Income-tax Officer was compelled to go behind the sale deed and adopt his own value for the assets were question of law which could be referred to the High Court. In S. C. Cambatta & Co. (Pvt.) Ltd. vs. Commr. of E. P. T. (2) The Supreme Court again observed that whether the good-Will of the subsidiary company was calculated in accordance with law did arise and the High Court ought to have directed the Tribunal to refer it treating it to be a question of law. In R. Ranganayaki Ammal vs. Controller of R. D. (Mad.) (3) the question referred to the High Court was whether on the facts and in the circumstances of that case the basis adopted for the valuation of the good-will was in accordance with law. This was considered to be a question of law and answered as such by the Madras High Court. In Commr. of Inc. Tax vs. K. Rathanam Nadar(4), the concept of good-will has been discussed at some length by the Madras High Court and the principle regarding its evaluation has been considered to be a mixed question of law and fact. This was considered to be a question of law and answered as such by the Madras High Court. In Commr. of Inc. Tax vs. K. Rathanam Nadar(4), the concept of good-will has been discussed at some length by the Madras High Court and the principle regarding its evaluation has been considered to be a mixed question of law and fact. The aforesaid authorities leave no doubt in our mind that the mode of assessing the value of good-will of a firm is prima facie a question of law or at least a mixed question of law and fact and deserves to be referred to this Court for answer under sec. 64(3) of the Act. 12. The second question was split by the learned counsel for the department in two parts. The first part reading : Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the amount of Rs. 29,322/- is deductible from the estate of deceased when the entire amount of refund of sales tax belonged to the deceased; And the second part according to the learned counsel included in the question was that— Even if it is presumed that the decision of A.T. that the sum of Rs. 29,322/- belonged to Shri Purshottamdas, the other partner was correct despiie the fact that the provisions of sec 10 of the Estate Duty Act, 1953 are applicable. 13. In regard to the first part of the question the finding of the Tribunal is that because the partnership had taken over all the assets and liabilities of deceaseds individual business and, therefore, one fourth of the amount of the refund of the sales tax rightly belonged to the other partner, namely. Purshottamdas Patel. In regard to the second part of the question with reference to sec. 10 of the Act, the Tribunal held that such a question was never raised before it and, therefore, it did not arise from the order of the Tribunal. 14. Mr. Lodha urged that the expression was right in holding was comprehensive enough to include all attacks on the legality of the conclusion reached by the Tribunal. 10 of the Act, the Tribunal held that such a question was never raised before it and, therefore, it did not arise from the order of the Tribunal. 14. Mr. Lodha urged that the expression was right in holding was comprehensive enough to include all attacks on the legality of the conclusion reached by the Tribunal. In particular the learned counsel urged that there was no evidence to show that the partnership firm which came into being in 1953 had inherited all the assets and liabilities of the sole proprietary concern of the deceased and, therefore, in view of the principles laid down in Sree Meenakshi Mills Ltd. vs. Commr. of Inc. Tax(5) a case which was decided with no evidence did raise a question of law. He also invited our attention to Commr. of inc. Tax vs. Seindia Steam Navigation Co. Ltd.(6) I. T. Commr. B&O vs. S. P. Jain(7) India Cements Ltd. vs. Commr. of Inc. Tax (S. C.)(8) and Commr. of lnc. Tax vs. Kamal Singh Rampuria (S. C.) (9). In regard to second part of the question the learned counsel urged that the expression was right in holding whether the provisions of sec. 10 of the Estate Duty Act 1953 were applicable or not was implied and no reference to the section was necessary. It merely related to one aspect of the question. 15. Mr. L. R. Mehta, however, urged that at no stage in this estate duty case it was urged on behalf of the Department that a question of law arose because the Tribunal decided a question without any evidence on record and in view of the principles laid down in 1. T. Commr. vs. S. S. Navigation Go. Ltd.(6), the well known Seindia case, it is a question which is covered by the fourth principle enunciated in that judgment, namely, 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 finding given by it. The learned counsel further urged that Scindias case(6) has been followed in India Cement vs. I. T. Commr. Madras(10). I. T. Commr. vs. Meenakshi Mills Madurai(ll). M. M. Ipoh vs. I. T. Commr. Madras(12). Ml. A. Jabbar vs. I. T. Commr. A. P. (13), I. T. Commr. West Bengal II. vs. Anusuya Devi(14), I. T. Commr. The learned counsel further urged that Scindias case(6) has been followed in India Cement vs. I. T. Commr. Madras(10). I. T. Commr. vs. Meenakshi Mills Madurai(ll). M. M. Ipoh vs. I. T. Commr. Madras(12). Ml. A. Jabbar vs. I. T. Commr. A. P. (13), I. T. Commr. West Bengal II. vs. Anusuya Devi(14), I. T. Commr. U. P. vs. M/s. Madangopal(15), Lakshmiratan Cotton Mills vs. I. T. Commr. U. P.(16) I. T. Commr. W. B. vs. I. C. 1.(17), I. T. Commr. B&O vs. Kirkend Coal Co.(18), G. F. Dealers vs. I. T. Commr. Calcutta(19) and Karnani Properties Ltd. vs. I.T. Commr. W. B.(20). Mr. L. R. Mehta endeavoured to distinguish I. T. Commr. B&O vs. S. P. Jain(7) where the facts according to him were altogether different. On the question of the aspect the learned counsel cited the authorities reported in Indore M. U. Mills vs. I. T. Comm.(Cent.)Bom.(21) Sundram & Co. vs. I. T. Commr. Madras(22) and Bhanji Bhagwandas vs. I. T. Commr. Madras(23) and urged that the aspect of a legal question is merely a facet thereof and is not a different in its question. 16. Learned counsel for the Revenue filed before us at our direction a copy of the reference application under sec. 64(1) of the Act along with its enclosures for our consideration whether the question of complete lack of evidence was ever raised before the Tribunal. 17. We have given our anxious consideration to the rival contentions submitted before us. The question that emerges for consideration is whether it is open to the Revenue to attack the legality of the conclusion reached by the tribunal on the first part of the second question namely on the ground that there was no evidence to show that the partnership firm inherited all the assets and liabilities of the sole proprietory concern of deceased Manilal. In Meenakshi Mills Ltd. vs. Commr. of I.T. (11) it has of course been laid down that a finding of fact is open to attack u/s. 66(1) of the I.T. Act. 1922 as erroneous in law if there is no evidence to support it or if it is perverse. There is no quarrel regarding this dictum laid down by their Lordships of the Supreme Court. But in the application under sec. 1922 as erroneous in law if there is no evidence to support it or if it is perverse. There is no quarrel regarding this dictum laid down by their Lordships of the Supreme Court. But in the application under sec. 64(1) of the Act submitted on behalf of the Department no such question of law was sought to be raised on the ground that there was no evidence that the assets of the sole proprietory firm including the amount of sales-tax refunded had devolved upon the partnership firm. The question, therefore, that arises is whether in the absence of any foundation laid in this regard is it open to the Department to raise a new point which was not raised before the tribunal. The position in this behalf is very well settled by a chain of Supreme Court decisions. In Commissioner of Income-tax vs. Scindia Steam Navigation Company Limited(6) it has been held that the power of Court to direct a reference under sec. 66(2) of the Income-tax Act 1922 is subject to two limitations, (1) the question must be one which the tribunal was bound to refer it (2) the Court cannot direct the tribunal to refer the question unless it is one which arises out of the order of the Tribunal and was specified by the applicant in his application under sec. 66(1). The Supreme Court has succinctly summarised the position under four propositions as follows : (i) When the question is raised before the tribunal and dealt with by it, it is clearly one arising out of its order. (ii) When a question of law raised before the tribunal but the tribunal fails to deal with it, it must be deemed to have been dealt with by it and is, therefore, one arising out of its order. (iii) When a question is not raised before the tribunal but the tribunal deals with it that will also be a question arising out of its order. (iv) 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. (iv) 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. The dictum laid down in this leading case i. e. Commissioner of Income tax vs. Scindia Steam Navigation Company Ltd.(6) has been reaffirmed in India Cement Ltd. vs. Commissioner of Income-tax Madras(8) and Commissioner of Income-tax vs. Kamal Singh Rampuria(9). In India Cements Ltd. vs. Commr. of Inc. Tax (S.C.)(9) it has held that in a reference, the High Court must accept findings of fact made by the Appellate tribunal and it is for the person who has applied for a reference to challenge these findings first by an application under sec. 66(1) of the Income-tax Act, 1922. If he has failed to file an application under sec. 66(1) expressly raising a question about the validity of the findings of fact, he is not entitled to urge before the High Court that the findings are vitiated for one reason or another. In Commissioner of Income-tax vs. Kamal Singh Rampuria(7) the Supreme Court has again laid down that in a reference the High Court must accept the findings of facts reached by the Appellate tribunal and it is for the party who applied for a reference to challenge those findings of fact first, by an application under sec. 66(1) of the Income Tax Act, 1922. If the party concerned has failed to file an application u/s. 66(1) of the Income Tax Act, 1922 expressly raising the question about the validity of the finding of fact, he is not entitled to erge before the High Court that the finding was vitiated for any reason. From the above authorities of the Supreme Court, it will appear that the law is well settled on the point It is incumbent on the party to challenge finding of fact first by an application to the tribunal itself and if the party had failed to do so it is no longer open to it to challenge the finding of the Tribunal before the High Court on the ground that the finding was vitiated for any reason. Admittedly in this case the Department did not challenge the finding of the tribunal in its application under sec. Admittedly in this case the Department did not challenge the finding of the tribunal in its application under sec. 64(1) of the Act before the tribunal and, therefore, it is no longer open to it to attack the validity of the order of the tribunal on the ground which was never raised before the tribunal itself. The reason for this is obvious. If the ground had been taken before the tribunal and if it was a correct one the tribunal may have been persuaded to refer this question to this Court. Moreover if the ground was not correct, the tribunal might have indicated as to on what basis it concluded that the entire assets and liabilities were taken over by the partnership firm. In our opinion, the present case is governed by the fourth proposition of law laid down in Scindia Steam Navigation Company Ltd.(6). The learned counsel for the Department urged that the case is governed by proposition No. (2) laid down in Scindia Steam Navigation Company. We have very closely examined all the four propositions laid down in Scindia Navigation Co. Ltd., case and we are clearly of the opinion that the present case is governed by proposition No. (iv). The Department did not agitate the ground that there was no evidence that the entire assets and liabilities of the sole proprietory concern of the deceased were taken over by the partnership firm. Consequently it is not open to the Department to agitate this ground before us which was never raised in its application under sec. 64(1) of the Act. 18. Mr. Lodha invited our attention to Income-tax Commissioner B & O V.S.P. Jain(7), with a view to show that the later decision of Supreme Court has taken a view which ran counter to the view laid down in aforesaid three Supreme Court cases We have minutely examined this decision. This decision does not directly deal with the question which has been pointedly raised before us. This decision does not directly deal with the question which has been pointedly raised before us. It only lays down that where the Tribunal has arrived at a finding based on no evidence or where the finding is inconsistent with the evidence or contradictory of it or acted on material partly relevant and partly irrelevant or where the tribunal draws upon its own imagination, imports facts and circumstances not apparent from the record or bases its conclusion on mere conjectures or surmises, the finding so arrived is vitiated in law. This is) exactly the principle Said down in Meenakshis ease. This case does not directly deal with the point which is before us. The case is, therefore, clearly distinguishable and is of no assistance to the learned counsel for the Department. Likewise Sundaram & Co. vs. I. T. Commissioner Madras(22) and Bhanji Bhagwan Das vs. I. T. Commissioner Madras(23) are not directly on the point as they relate to the aspect of the question raised before the Tribunal and are, therefore, clearly distinguishable. We need not discuss the other cases cited by Mr. L. R. Mehta which repeat or follow the dictum laid down in Scindias case. Suffice it to say that the petitioner in his application under sec. 64(1) of the Act did not expressly assail the finding of the tribunal that the assets of the sole proprietory concern devolved upon the partnership concern on the ground that there was no evidence. It is therefore, not open to the Department to assail the order of the tribunal on that ground as the point in the circumstances cannot be said to arise out of the order of the tribunal. 19. We, therefore, refuse to refer part 1 of the question No. 2 as stated earlier. 20. In regard to the second part of the second question the tribunal has observed that sec. 10 of the Estate Duty Act was not referred by the Revenue at the stage of the hearing of the appeal or before the tribunal. It has further been observed by the tribunal that no mention of it either was made in its order. The tribunal has noted that there is no warrant for the conclusion that taking over of the assets and liabilities of the partnership amounted to transfer or gift so as to attract sec. 10 of the Estate Duty Act. It has further been observed by the tribunal that no mention of it either was made in its order. The tribunal has noted that there is no warrant for the conclusion that taking over of the assets and liabilities of the partnership amounted to transfer or gift so as to attract sec. 10 of the Estate Duty Act. It may be that the application of sec. 10 may be implied in the order of tribunal but it only relates to gift which was not the question canvassed before the tribunal. In these circumstances, it cannot be said that the second part of the question arises out of the order of the tribunal. 21. For the reasons set out earlier we decline to direct the tribunal to refer the question No. 2 to this Court. This question in our opinion is plainly not a question of law which arises in the circumstances of the case. The tribunal is, therefore, directed to refer the following question No. 1 for our answer under sec. 64(3) of the Act. "Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the share of good will of deceased may be arrived at on the basis of two years purchase of super profits in the place of three years as fair and reasonable without assigning any reason ?" 22. There will be no order as to costs.