Transfer of business qualify as a ‘going concern’ if not have Intention or necessity of liquidation or of curtailing materially the scale of operations’

In re Jayesh Popat (GST AAR West Bengal)

Whether the transaction of transfer of business by the applicant shall be treated as a supply of services and would be covered under Serial No. 2 of the Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017?

It therefore appears that to qualify as a ‘going concern’, the business must not have Intention or necessity of liquidation or of curtailing materially the scale of the operations’. In this context, we like to mention that the applicant has furnished before us copy of Audit report under section 44AB of the Income-tax Act, 1961′ related to the period from 01.04.2020 to 31.03.2021. However, we do not find any comments from the auditor in respect of the entity’s ability to continue in operation for the foreseeable future’. We are, therefore, unable to conclude that the applicant has neither the intention nor the necessity of liquidation or of curtailing materially the scale of the operations.

In view of the above discussions, AAR rule that The transaction of transfer of business of the applicant involved in the instant case shall be treated as a supply of services. The transaction would be covered under Serial No. 2 of the Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 [corresponding West Bengal State Notification No. 1136 F.T. dated 28.06.2017] subject to fulfilment of the conditions to qualify as a going concern.

FULL TEXT OF THE ORDER OF AUTHORITY FOR ADVANCE RULING, WEST BENGAL

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