Case Law Details
In re Deputy Commissioner of Central Tax in case of M/s. Shilpa Medicare Limited (GST AAAR Andhra Pradesh)
M/s. Shilpa Medicare Limited, Vizianagaram, A.P and M/s. Shilpa Medicare Limited, Bangalore unit are holders of the same PAN and they are distinct persons. Hence, the provisions of Para 4(c) of Schedule II of CGST Act, 2017 do not apply in this case. It doesn’t qualify to be a ‘going concern to another person’. Transfer of unutilised ITC doesn’t arise as the transaction is classified as ‘supply of goods’ between distinct persons.
On perusal of the information at hand, it is observed that the main issue of contention is whether the transfer of business of M/s. Shilpa Medicare Limited unit, Vizianagaram, Andhra Pradesh-531162 vide GST No.37AADCS8788FlZR, to M/s. Shilpa Medicare Limited, Bengaluru, Karnataka – 562117, vide GST No.29AADCS8788FlZO, is a supply of goods or services or both. The AAR has taken the stance that the activity is a going concern and classified it to be a supply of service, whereas the appellant contested it as supply of goods.
After careful examination of the competing arguments of the Lower Authority and the Revenue we come to a conclusion that there is consensus on the issue that it is a ‘supply’ primarily, and hence we take upon the question for further scrutiny, whether it is a supply of goods or services or both.
Now we examine, in the instant case, whether transaction is qualified to be business being transferred as a going concern to ‘another person’ or not. In terms of section 25 (4) and section 25 (5) of CGST Act, 2017.
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