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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 RGST Act read with rule 41(1) of RGST RulesX X X X Extracts X X X X X X X X Extracts X X X X ..... hip of business. Certain doubts have been raised regarding the interpretation of sub-section (3) of section 18 of the Rajasthan Goods and Services Tax Act, 2017 (hereinafter referred to as the RGST Act) and sub-rule (1) of rule 41 of the Rajasthan Goods and Services Tax Rules, 2017 (hereinafter referred to as the RGST Rules) in the context of business reorganization. 2. According to sub-section (3) of section 18 of the RGST 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 liabilities, the said registered person shall be allowed to transfer the input tax credit which remains unutilized i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 RGST 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 RGST Rules states that "value of assets" means the value of the entire assets of the business, whether or not input tax credit has been availed thereon. Under the provisions of the RGST Act, a person/ company (having same PAN) is req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C-02 only in those States where both transferor and transferee are registered. b. The proviso to rule 41 (1) of the RGST Rules explicitly mentions 'demerger'. Other forms of business reorganization where part of business is hived off or business in 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 RGST Rules, 2017 shall be applicable to calculate the amount of transferable ITC? Yes, the formula for apportionment of ITC, as prescribed under proviso to sub-rule (1) of rule 41 of the RGST Rules, shall be applicable for all forms of business re-organization that results in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RGST 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, RGST, SGST/UTGST) 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 filing of FORM GST ITC-02) [Col (4) - Col (5)] Delhi 70% RGST 10,00,000 10,00,000 0 SGST 10,00,000 10,00,000 0 IGST 30,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance 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 RGST 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 "appointed date of demerger" is the date from which the scheme for demerger comes into force and it is specified in the respective scheme of demerge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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