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2020 (7) TMI 345 - AAR - GSTClassification of Supply - transfer (sale) of ongoing business / unit - supply of goods or supply of services or supply of goods services - Research & Development work in Active Pharmaceutical Ingredient (API) & formulation molecules & manufacture of formulation products in small quantity for R & D purpose - SI.No.2 of the Notification No. 12/2017-Central Tax (Rate) dated 28.6.2017 - transfer of unutilized credit - HELD THAT:- In the instant case the activity of the ‘transfer’ is made for a consideration, but neither in the course of the business nor for the furtherance of the business. A going concern is a onetime affair made where the business is sold including assets in entirety or an independent part thereof. Even though this transaction does not amount to a ‘supply’ as per definition, but qualified to be one under the scope of supply as it is backed by the term ‘includes’ in Section 7(1) of the CGST Act, 2017. Thus, in the broadened interpretation of the term ‘includes’, this activity is brought under the scope of supply. Whether ‘ongoing concern’ is to be treated as ‘supply of goods’ or ‘supply of services’? - HELD THAT:- The definition of services qualifies ‘anything other than goods’ as service. In this context it is obvious that the ‘going concern’, which was excluded form list of ‘supply of goods’ as discussed above, would automatically fall under ‘supply of services’ - Further, the description of services under SI.No.2 of Chapter 99 of Notification No. 12/2017 - Central Tax (Rate) dated 28.6.2017 provides for “Services by way of transfer of a going concern, as a whole or an independent part thereof’ as nil rated. Hence, the transaction is not liable to tax. Whether the applicant can file GST ITC-02 return and transfer unutilised ITC from Vizianagaram, Andhra Pradesh unit to Bengaluru, Karnataka Unit? - HELD THAT:- In case of sale or transfer, the transferor can transfer unutilised input tax credit to the transferee, which is lying in his electronic credit ledger, by filing Form GST ITC-02. The transaction would amount to supply of services - the transaction would cover SI.No.2 of the Notification No.12/2017- Central Tax (Rate) dated 28.6.2017 - the unutilised ITC from Vizianagaram, Andhra Pradesh unit to Bengaluru, Karnataka Unit can be transferred by filing GST ITC-02.
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