Page 122 - GSTL_20th August 2020_Vol 39_Part 3

336 GST LAW TIMES [ Vol. 39
4. Questions raised before the authority :
(1) Whether the transaction would amount to supply of goods or sup-
ply of services or supply of Goods & Services?
(2) Whether the transaction would cover Sl. No. 2 of the Notification
No. 12/2017-Central Tax (Rate), dated 28-6-2017?
(3) Can we file GST ITC-02 return and transfer unutilised ITC from
Vizianagaram, Andhra Pradesh unit to Bengaluru, Karnataka Unit?
On Verification of basic information of the applicant, it is observed that the ap-
plicant falls under Central jurisdiction, i.e. Superintendent, Vizianagaram South,
Vizianagaram CGST Division. Accordingly, the application has been forwarded
to the jurisdictional officers and a copy marked to the State tax authorities to of-
fer their remarks as per the Sec. 98(1) of CGST/APGST Act, 2017.
In response, no remarks are received from the jurisdictional officer con-
cerned, but the State tax authorities responded mentioning that there are no pro-
ceedings lying pending or passed relating to the applicant on the issue, for which
the Advance Ruling sought by the applicant.
5. Applicant’s interpretation of law and facts :
The applicant refers to Notification No. 12/2017-Central Tax (Rate),
dated 28th June, 2017, Column No. 3 of the table which gives the description of
the services. Serial Number 2 of the Notification provides for “Services by way of
transfer of a going concern, as a whole or an independent part thereof”. This indicates
that the activity of transfer of a going concern constitutes a supply of service. The
Notification further provides Nil rate of Tax on such a supply.
The applicant requested for a clarification whether the transfer of capital
assets would cover Sl. No. 2 of the above-mentioned Notification.
6. Record of personal hearing :
The authorized representatives of the applicant, Sri Muralidhar, tax con-
sultant appeared for Personal Hearing on 23-10-2019 and reiterated the submis-
sion already made in the application.
7. Discussion and findings :
We have examined the issues raised in the application and the submis-
sions made by the authorised representative of the applicant as well, regarding
the classification, tax liability of the transaction involved and the transferability
of unutilised input tax credit in the case of ongoing concern.
The issue at hand is to decide whether the transaction of the applicant
would amount to supply of goods or supply of services or supply of goods &
services.
From the record we find that the business of the applicant i.e., Shilpa
Medicare Limited of Andhra Pradesh unit, as a whole along with the capital as-
sets is being transferred as going concern to Shilpa Medicare Limited of Karna-
taka Unit for a monetary consideration. The applicant had submitted no docu-
mentary evidence proving that the transaction is a going concern except for his
categorical declaration in the application as such. Taking into consideration the
facts as put forth by the applicant, the following series of observations are made
to arrive at a conclusion finally.
Now we look into the issue whether this transaction would constitute a
‘supply’ primarily.
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