2022 (4) TMI 1087 - AAR - GST

Transfer of business between two GST registrations of same PAN holder constitutes supply under Schedule I

The AAR Maharashtra held that transfer of business by way of merger between two GST registrations of the same PAN holder constitutes supply under GST law ... Supply or not - supply of goods or not - transaction of transfer of business by way of merger of two GST registrations/ distinct persons - merger between distinct persons - transfer of business as going concern or not - transaction of transfer of business by way of merger of two GST registrations/ distinct persons would constitute ‘supply of services’ or not - applicability of SI. No. 2 of Notification no. 12/2017-C.T. (R) dated 28.06.2017 - transfer of unutilized credit balance. Whether the transaction of transfer of business by way of merger of two GST registrations/ distinct persons would constitute ‘supply’ under the GST law? - HELD THAT:- As per Sr. No. 2 of Schedule I to the CGST Act, 2017, ‘supply of goods or services or both between related persons or between distinct persons as specified in section 25 of CGST Act, 2017, when made in the course or furtherance of business shall be treated as supply, even if made without consideration’ - Section 7(1A) of amended CGST Act 2017, mentioned as above, prescribes that, certain activities or transactions constitute a supply in accordance with the provisions of sub-section (1), they shall be treated either as supply of goods or supply of services as referred to in Schedule II - thus, there is a rendering of ‘supply’ in the subject case. Whether the transaction of transfer of business by way of merger of two GST registrations/ distinct persons would constitute ‘supply of goods’ under the GST law? - Whether the transaction of transfer of business by way of merger of two GST registrations/ distinct persons would constitute ‘supply of services’ under the GST law? - HELD THAT:- Change in constitution of the business is essential otherwise, it cannot be said that there is transfer of business as a going concern - The concept of ‘distinct persons’ has been introduced under GST law wherein the establishments of a person with separate registrations within the same State/UT are considered as distinct person”. In the subject case, M/s Crystal Crop Protection Limited, Nagpur and M/s Crystal Crop Protection Limited, Akola, as units are holders of the same PAN and they are merely distinct persons. Hence, the case at hand doesn’t qualify to be a “going concern to another person” as units are holders of the same PAN and they are merely distinct persons - the provisions of Para 4 (c) of Schedule II of CGST Act, 2017 do not apply in this case. Therefore, the impugned supply will be treated only as supply of goods and therefore there is no supply of services in the instant case. Whether merger between distinct persons would qualify as ‘transfer of business as going concern’ under the purview of GST Law? - HELD THAT:- The question raised by the applicant is not covered under the provisions of Section 97 of the CGST Act, 2017 - this question not answered. In case the Applicant merges the business of Akola registration, then can the Applicant claim credit balance appearing in Akola registration via Form GST ITC 02A in Nagpur registration? - HELD THAT:- The question is not admitted, hence not answered. If the transaction qualifies as ‘supply of services’, whether the said transaction would get covered under SI. No. 2 of the Notification no. 12/2017-Central Tax (Rated) dated 28 June 2017, and therefore not liable to GST? - HELD THAT:- The impugned transaction is not a supply of services and therefore this question is not taken up for discussion and hence not answered. Issues Involved:1. Whether the transaction of transfer of business by way of merger of two GST registrations/distinct persons would constitute 'supply' under the GST lawRs.2. Whether the transaction of transfer of business by way of merger of two GST registrations/distinct persons would constitute 'supply of goods' under the GST lawRs.3. Whether merger between distinct persons would qualify as 'transfer of business as going concern' under the purview of GST LawRs.4. Whether the transaction of transfer of business by way of merger of two GST registrations/distinct persons would constitute 'supply of services' under the GST lawRs.5. If the transaction qualifies as 'supply of services', whether the said transaction would get covered under SI. No. 2 of Notification no. 12/2017-C.T. (R) dated 28.06.2017, and therefore not liable to GSTRs.6. Whether Nagpur registration can file Form GST ITC-02 and transfer unutilized credit balance to Akola registrationRs.7. In case the Applicant merges the business of Akola registration, then can the Applicant claim credit balance appearing in Akola registration via Form GST ITC 02A in Nagpur registrationRs.Detailed Analysis:Issue 1: Supply under GST LawThe Authority confirmed that the transaction of transfer of business by way of merger of two GST registrations/distinct persons constitutes 'supply' under the GST law. This is based on Section 7(1) of the CGST Act, 2017, which includes all forms of supply of goods or services or both, such as sale, transfer, barter, exchange, license, lease, rental, or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business. Moreover, Schedule I of the CGST Act specifies that supply between related persons or distinct persons is treated as supply even if made without consideration.Issue 2: Supply of GoodsThe Authority determined that the transaction constitutes 'supply of goods' under the GST law. This conclusion is based on the provisions of Section 7(1A) of the amended CGST Act 2017 and Part 4(c) of Schedule II, which states that the transfer of business as a going concern does not amount to the supply of goods. However, since the transaction is between distinct persons holding the same PAN, it does not qualify as a transfer of business as a going concern to another person.Issue 3: Transfer of Business as Going ConcernThis issue was not answered as it is not covered under the provisions of Section 97 of the CGST Act, 2017.Issue 4: Supply of ServicesThe Authority concluded that the transaction does not constitute 'supply of services' under the GST law. The reasoning is that since the transfer of business on a going concern basis does not constitute the supply of goods, it should be treated as the supply of services. However, the transaction between distinct persons holding the same PAN does not qualify as a transfer of business as a going concern to another person.Issue 5: Exemption under Notification No. 12/2017-C.T. (R)This issue was not answered because the transaction does not qualify as the supply of services, as determined in Issue 4.Issue 6: Transfer of Unutilized Credit BalanceThe Authority answered in the negative, stating that Nagpur registration cannot file Form GST ITC-02 to transfer the unutilized credit balance to Akola registration. This conclusion is based on the interpretation of Section 18(3) of the CGST Act, 2017, which allows the transfer of input tax credit only when there is a change in the constitution of the registered person on account of sale, merger, demerger, amalgamation, lease, or transfer of the business.Issue 7: Claiming Credit Balance via Form GST ITC 02AThis question was not admitted at the time of the application and therefore was not answered.Conclusion:The Authority concluded that the transaction of transfer of business by way of merger of two GST registrations/distinct persons constitutes 'supply' and 'supply of goods' under the GST law but does not constitute 'supply of services.' Consequently, the transaction is not exempt under Notification No. 12/2017-C.T. (R). Additionally, the transfer of unutilized credit balance via Form GST ITC-02 is not permissible.