The sale of a branch of a business as a going concern is a sale of the business as a whole within the meaning of Rule 6(d) of the Tamil Nadu General Sales Tax Rules, 1959, and is therefore exempt from sales tax.

SETHURAMAN, J.

This tax revision case arises out of an order of the Tribunal exempting the turnover in question. Under the Tamilnadu General ST Act, the assessee was finally assessed to tax on a total and taxable turnover of Rs. 1, 59, 291.31 and Rs. 1, 37, 880.15 respectively for the year 1967-68 in the assessment proceeding of the Dy. CTO dt. 3rd September, 1968. On a further scrutiny of the records, the Dy. CTO, Coimbatore, considered that out of the consideration of Rs. 19, 500 for the transfer of the branch at Ooty, the sum of Rs. 18, 929.71 representing sale value of the closing stock held at Ooty branch was wrongly exempted from payment of tax and that it was not eligible for exemption as it did not come within the scope of the provision of r. 6(d) of the Tamilnadu General ST Rules. Accordingly, notice was issued to the assessee calling for its objections, if any, to the proposed revision of assessment. It was contended by the assessee that the business at Ooty branch as a whole was sold, that the branch business was also to be considered as a business as defined under S. 2(d) of the Tamilnadu General ST Act, 1959, and that the sale value of the stock held was eligible for the exemption from payment of tax under r. 6(d) of the Tamilnadu General ST Rule, 1950. The Dy. CTO did not accept this objection, as he was of the view that only the business sold as a whole was exempted from tax. He took a sum of Rs. 18, 929.71 as the sale value of the stock and added it to the turnover for the year and assessed sales-tax accordingly. He has not set out the provision under which he acted to revise the assessment.

2. On appeal, the AAC was also of the opinion that the assessee was not eligible for exemption under R. 6(d) and that even after the sale of the Ooty branch, he was carrying on business in the head office at Coimbatore, so that it could not be considered that the assessee had sold the business as a whole. He confirmed the assessment.

3. On further appeal the Tribunal found that the entire business including furniture, fittings, and stock in trade of the Ooty branch had been transferred and that, in the circumstances, under R. 6(d) of the turnover in question was liable to be exempted. It held also that the AO could not have sat in judgment over his own order, as he had earlier given a finding in favour of the assessee. Aggrieved by this order of the Tribunal, the Dy. Commr. (CT), Coimbatore has filed this revision.

4. It is not clear under what provision the assessing authority acted to revise the assessment. The assessing authority had in the original assessment referred to the sale of the branch and granted the exemption. If the exemption was later consider to be erroneous, it could have been revised under S. 32 by the Dy. CIT, But that was not done. This is not also an error which could have been rectified under S. 55, as the error which could be rectified thereunder could only be an error apparent from the record. The error in this case cannot be said to be an error apparent from the record as would be clear from the discussion that follows. The assessing authority has not also taken action to make an assessment on the escaped turnover under S. 16 of the Act. The assessing authority has no power to review his own order independently of these provisions. We are, therefore, of the opinion that the order of the assessing authority revising his earlier order is illegal.

5. We would, however, examine the correctness of the order even on its merits. The bona fides of the sale of the branch as running concern is not in dispute. The point raised for consideration is whether the assessee is liable for exemption under R. 6(d) of the Tamil Nadu General ST Rules. That rule in so far as it is material runs as follows :

"6. The tax or taxes under S. 3, 4 or 5 shall be levied on the taxable turnover of the dealer. In determining the taxable turnover, the amounts specified in the following clauses shall, subject to the condition