P. VENKATARAMA REDDI, J.

( 1 ) THIS Tax Revision Case and the writ petition are before us pursuant to the reference made to the Full Bench by a Division Bench consisting of M. N. Rao, J (as he then was) and T. N. C. Rangarajan, J. , before whom these cases came up for hearing initially. Seriously doubting the correctness of the Division Bench decision of this Court in Coramandal Lubricants v. Commissioner of Commercial Taxes, A. P. , 102 STC 274, and expressing their prima facie view of the issue involved, the learned Judges framed the following question for answer by the Full Bench: "whether in a transaction of sale of an undertaking as a going concern with all assets and liabilities for a lump sum without stipulating any price for individual items, the assessing authority could consider that there was a sale of goods within the meaning of Section 2 (n) read with Sections 2 (h) and 2 (s) for charging the same to tax under Section 5 of the APGST Act. "

( 2 ) AFTER referring to the definitions of goods , sale and turn-over and the charging Section of the Act, the learned Judges observed as follows:"a conjoint reading of the above three provisions leads to the prima facie conclusion that in respect of sale of a going concern with all its assets and liabilities comprising movables and immovables including stock in trade and other goods, no sales tax could be levied on the value of the stock in trade and other goods as if the transaction was one of sale of goods, especially when the sale-deed does not mention separate price for these items. Further, what was intended to be sold was not goods or other stock in trade but the concern in its entirety. In other words, the transaction is one of winding up of business. After the sale of the business, the assessee would no longer be continuing its business transactions. "

( 3 ) THE learned Judges referred to the decision of the Supreme Court in Commissioner of Income Tax v. Mugneeram Bangur and Company, 57 ITR 299.

( 4 ) THE relevant facts leading to the filing TRC and the writ petition by the same assessee are as follows: the petitioner-Company, which started its business of manufacturing and sale of fertilisers in 1966 also set up a cement manufacturing plant at a different place in the year 1982. Thus, at the material point of time, the petitioner was owning and managing a fertiliser division and a cement division. Having found that the cement division became economically unviable and that it would be in the best interests of the company to sell the cement division as a whole, issued tender notice on 2-4-1990 inviting offers for the purchase of the undertaking comprising cement division as a going concern on "as is and where is basis". Pursuant thereto, the India Cement Limited made an offer on 23-4-1990 for the purchase of the cement division undertaking as going concern. It culminated into an agreement entered into between the petitioner and India Cement Ltd. , on 9-6-1990. The preamble to the Agreement says that the vendor had agreed to sell and the purchaser had agreed to purchase "for the consideration and upon the terms and conditions hereinafter set out, the entire undertaking of the vendor comprising its cement division as a going concern on "as is and where is" basis. The Agreement defines the undertaking as the operations and activities of the Cement Division of the vendor as a going concern including: (1) The Cement plant and the free-hold lands and the premises situated in Chilamkur village, Cuddapah district together with all buildings and structures constructed thereon; (2) The mines and mining leases on or in respect of the said land; (3) All plant, machinery, equipments, capital work in progress, vehicles, furniture and fixtures; (4) All plant, machinery both at the factory site and at the vendor s divisional office at Secunderabad; (5) Net current assets as defined in the agreement; (6) All the industrial and other licences held by the vendor relating to the cemen