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2022 (5) TMI 181 - AAR - GSTClassification of supply - sale as a going concern - transfer of the business of the CRF unit - supply of goods or supply of services or supply of goods and services? - Entry No. 2 of the Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 - HELD THAT:- In the instant case, admittedly the applicant has entered into an agreement which inter alia involves transfer of goods forming part of the assets of the business. In a standalone manner, such transfer shall be treated as supply of goods in terms of clause (a) of Entry No. 4 of Schedule II - the applicant intends to sell his entire CRF unit where the purchaser agrees to take over the assets as well as the liabilities of the said CRF unit along with the employees and their benefits. Such transfer of a unit of a business cannot be treated as supply of goods since business cannot be said to be a movable property so as to qualify as ‘goods’ as defined in clause (52) of section 2 of the GST Act. Further, anything other than goods, money and securities falls within the meaning of ‘services’ as defined in clause (102) of section 2 of the GST Act. To qualify as a ‘going concern’, the business must not have ‘intention or necessity of liquidation or of curtailing materially the scale of the operations’. In this context, it is mentioned that the applicant has not furnished any documentary evidences from the auditor with regard to the ‘entity's ability to continue in operation for the foreseeable future‟ in absence of which we are unable to conclude that the applicant has neither the intention nor the necessity of liquidation or of curtailing materially the scale of the operations. The transaction of transfer of business unit of the applicant involved in the instant shall be treated as a supply of services - transaction would be covered under Entry No. 2 of the Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 subject to fulfillment of the conditions to qualify as a going concern.
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