Conversion of Proprietorship into Partnership Firm

[ROHIT GOEL]

Dear Sirs,

One of our client intends to convert their existing Proprietorship firm into a partnership concern. Their existing balance sheet consists of Immovable properties, Computers and other office equipments. As per planned process of transfer, entire business will be transferred as such and assets will be contributed as Capital in the said firm at their book values.

As per Clause 4(c) of Schedule-2 of the CGST Act, 2017, in case a business is transferred as a going concern, the transfer of assets would not result in a supply. However, I do not think going concern is defined in the Act. Therefore, do you believe such transfer at book values of all assets would suffice the condition of going concern?

Further, I believe as per section 18(3) of the Act r.w. Form ITC-02, the ITC as of date of transfer could be transferred. Are there any restrictions to the same as to what nature of ITC could not be transferred?

Your guidance will be highly valued.

AI Summary

Going concern transfer of a business can avoid supply classification while enabling transfer of unutilized GST credit under prescribed procedures.
Conversion of a proprietorship into a partnership transferred as a going concern is not a supply under Schedule II clause 4(c) if the transaction constitutes a functioning business transfer. Rule 41 requires FORM GST ITC-02 to be filed for transfer of unutilized ITC, a CA/cost accountant certificate confirming provision for liabilities, and transferee acceptance on the portal for credit to be credited; transferred inputs and capital goods must be recorded by the transferee and de-merger apportionment follows asset value.