In re Shikhar Commodities (GST AAR Chhattisgarh)
In the instant case of the applicant, it is seen that acquiring of assets viz. Biomass Power Plant (8 MW Capacity) by way of sale of assets and properties owned by the Corporate Debtor, M/s Vandana Vidhyut Limited, in Liquidation forming part of Liquidation Estate formed by the Liquidator under Insolvency and Bankruptcy Code, 2016, through e-auction for a consideration is supply of goods and not supply of services in view of the stipulations under SCHEDULE II of Section 7 of the COST Act,2017. Thus, the instant sale of Assets and properties viz. Biomass Power Plant (8 MW Capacity) owned by Vandana Vidhyut Limited (in Liquidation), can in no way be supply of services. The case laws cited by the applicant in support of their contention appears distinguishable to the facts and circumstances of the case in hand, as here the issue involved is sale of assets as discussed above and not supply of services by way of transfer of business as a going concern.
Notification No. 12/2017- Central Tax (Rate) New Delhi, the 28th June, 2017, supra provides for exemption to intro-Slate supply of services by way of transfer of a going concern, as a whole or an independent part thereof, whereas here in the case of applicant the supply of biomass power plant is supply of goods and not supply of services in view of the stipulations under schedule II to Section 7 of CGST Act, 2017. In the case of sale of assets as a going concern which is supply of goods, as is the case here, the same is exigible to GST as applicable. Thus, Notification No. 12/2017- Central Tax (Rate) New Delhi, the 28th June, 2017 infer alia exempts services by way of transfer of business as a going concern, whereas here in applicants case it is sale of assets as a going concern initialed by the liquidator in terms of the orders issued by Hon’ble FICLT, as discussed above. Applicant appears to have misconstrued the sale of Biomass power plant by way of sale as a going concern as supply of services whereas the same is supply of goods by way of transfer as a going concern, and have thus wrongly claimed eligibility towards exemption from GST under serial no.2 of Notification no. 12/2017-Central Tax (Rate) dated 28.6.2017. Thus on the basis of documents furnished by the applicant, we come to the considered conclusion that the instant transaction by the applicant is not eligible to the benefit of Notification No. 12/2017- Central Tax (Rate) New Delhi, the 28th June, 2017 supply of goods, attracting GST at the applicable rate.
Exemption provided under serial no.2 of the Notification No.12/2017-Central Tax (Rate) dated-28.06.2017 is not applicable to the said intrastate supply of Biomass Power Plant (8 MW Capacity) as a going concern’. GST at the applicable rate is leviable on the said supply.
