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TMI BlogClarification in respect of apportionment of input tax credit (ITC) in cases of business reorganization under section 18 (3) of WBGST Act read with rule 41(1) of WBGST RulesX X X X Extracts X X X X X X X X Extracts X X X X ..... transfer of ITC in the event of merger, demerger, amalgamation or change in the constitution/ownership of business. Certain doubts have been raised regarding the interpretation of sub-section (3) of section 18 of the West Bengal Goods and Services Tax Act, 2017 (hereinafter referred to as the WBGST Act) and sub-rule (1) of rule 41of the West Bengal Goods and Services Tax Rules, 2017 (hereinafter referred to as the WBGST Rules) in the context of business reorganization. 2. According to sub-section (3) of section 18 of the WBGST Act, "Where there is a change in the constitution of a registered person on account of sale, merger, demerger, amalgamation, lease or transfer of the business with the specific provisions for transfer of liabiliti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion Clarification a. (i) In case of demerger, proviso to rule 41 (1) of the WBGST Rules provides that the input tax credit shall be apportioned in the ratio of the value of assets of the new units as specified in the demerger scheme. However, it is not clear as to whether the value of assets of the new units is to be considered at State level or at all-India level. Proviso to sub-rule (1) of rule 41 of the WBGST Rules provides for apportionment of the input tax credit in the ratio of the value of assets of the new units as specified in the demerger scheme. Further, the explanation to sub-rule (1) of rule 41 of the WBGST Rules states that "value of assets" means the value of the entire assets of the business, whether or not input tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to file FORM GST ITC - 02 in all States where it is registered? No. The transferor is required to file FORM GST ITC-02 only in those States where both transferor and transferee are registered. b. The proviso to rule 41 (1) of the WBGST Rules explicitly mentions "demerger‟. Other forms of business reorganization where part of business is hived off or business is transferred as a going concern etc. have not been covered in the said rule. Wherever business reorganization results in partial transfer of business assets along with liabilities, whether the proviso to rule 41(1) of the WBGST Rules, 2017 shall be applicable to calculate the amount of transferable ITC? Yes, the formula for apportionment of ITC, as prescribed unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CGST, WBGST and IGST credit) should not exceed the amount of ITC to be transferred, as determined under sub-rule (1) of rule 41 of the WBGST Rules [refer 3 (c) (i) above]. However, the transferor shall be at liberty to determine the amount to be transferred under each tax head (IGST, CGST, WBGST) within this total amount, subject to the ITC balance available with the transferor under the concerned tax head. This is shown in the illustration below: (1) (2) (3) (4) (5) (6) State Asset Ratio of Transferee Tax Heads ITC balance of Transferor (pre-apportionment) as on the date of filing FORM GST ITC-02) Total amount of ITC transferred to the Transferee under FORM GST ITC-02 ITC balance of Transferor (post-apportionment) after filin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the WBGST Act along with sub-rule (1) of rule 41 of the WBGST Rules would imply that the apportionment formula shall be applied on the ITC balance of the transferor as available in electronic credit ledger on the date of filing of FORM GST ITC - 02 by the transferor. (ii) Which date shall be relevant to calculate the ratio of value of assets, as prescribed in the proviso to rule 41 (1) of the WBGST Rules, 2017? According to section 232 (6) of the Companies Act, 2013, "The scheme under this section shall clearly indicate an appointed date from which it shall be effective and the scheme shall be deemed to be effective from such date and not at a date subsequent to the appointed date". The said legal provision appears to indicate that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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