Home Case Index All Cases GST GST + AAAR GST - 2020 (11) TMI AAAR This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (11) TMI 1039 - AAAR - GSTClassification of supply - supply of goods or supply of services or supply of Goods & Services? - transaction would cover SI.No.2 of the Notification No. 12/2017-Central Tax (Rate) dated 28.6.2017 or not? - permissibility to file GST ITC-02 return and transfer unutilised ITC from Vizianagaram, Andhra Pradesh unit to Bengaluru, Karnataka Unit? - In the instant case, whether transaction is qualified to be business being transferred as a going concern to 'another person' or not? - HELD THAT:- The concept of distinct person has been newly introduced under GST law. In brief, the establishments of a person with separate registrations whether within the same State/UT or in different States/UTs are considered as 'distinct person. 'A supplier is required to obtain registration in every State/ UT from where he makes taxable supply provided his aggregate turnover exceeds a specified threshold limit. The case at hand doesn't qualify to be a 'going concern to another person', as M/s. Shilpa Medicare Limited, Vizianagaram, A.P and M/s. Shilpa Medicare Limited, Bangalore unit are holders of the same PAN and they are distinct persons. Hence,the provisions of Para 4 (c) of Schedule II of CGST Act, 2017 do not apply in this case. Hence, it is treated as deemed supply of goods. The subsequent questions of applicability of SI.No.2 of the Notification No.12/2017- Central Tax (Rate) dated 28.6.2017 and the transfer of unutilised ITCdon't arise as the transaction is classified as 'supply of goods' between distinct persons. Can ITC-02 be filed for transfer of ITC from the Vizianagaram Unit to the Karnataka Unit? - HELD THAT:- There is no supply of service but a supply of goods (assets of the Vizianagaram Unit to the Unit in Karnataka State). Therefore, the question of transfer of ITC would not arise - In the instant case, there is no evidence of “change in the constitution of the registered person”. A change in the constitution would envisage a change from say a proprietorship entity to a Partnership or a Company, or from a Partnership to a Company; or change in the constitution of the Shareholders, etc. There is no such thing happening in this case. M/s. Shilpa Medicare Limited, Vizianagaram is one and the same entity as M/s. Shilpa Medicare Limited, Bangalore, Karnataka. There is no change in the constitution of the entity as required under Section 18 (3) of the CGST Act and therefore the provisions for transfer of ITC under Section 18 (3) would not be permissible in this case. Further, the GST law comprising of the Central GST Act, the Integrated GST Act and State / UT GST Acts, does not envisage the transfer of ITC in the form of CGST and SGST / UTGST accumulated in one State to another State. The scope of the AP GST Act cannot extend beyond the territory of the State of Andhra Pradesh. Similarly, the KSGST Act cannot extend beyond the borders of the State of Karnataka. Credit (ITC) accumulated under a particular State GST Act cannot be utilized in another State as there is no such provision under the extant law. Therefore, due to the exclusivity of ITC earned in a State, M/s. Shilpa Medicare Limited, Vizianagaram are not entitled to transfer the ITC earned in the State of Andhra Pradesh to themselves in the State of Karnataka. Hence, the facility of transfer of Credit using Form ITC-02 is not available in this case.
|