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TMI Blog2019 (2) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... has long term as well as current liabilities. The applicant proposes to merge as GOING CONCERN with M/s. Bimal Aluminium Pvt. Ltd., Yamunanagar, having GSTN 06AAACB6210G1Z9. That consequent to merger the proprietorship firm M/S B. M Industries, owned by the applicant, shall cease to exist and its all present and future assets, liabilities, rights, claims, businesses, etc., shall be taken over by M/s. Bimal Aluminium Pvt. Ltd. All future liabilities of GST, as and when arise, shall be met by M/s. Bimal Aluminium Pvt. Ltd., in normal course of business. After merger, M/S B. M. Industries shall apply for cancellation of registration in form GST-REG-16, within 30 days as prescribed. 2. The applicant submits that as per Rule 41 of CGST/HGST Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of M/s. B.M. Industries with M/s. Bimal Aluminium Pvt. Ltd. would be for consideration based on the valuation of assets & liabilities on the date of merger. Consequent upon merger of M/s. B.M. Industries all assets and liabilities shall be taken over by M/s. Bimal Aluminium Pvt Ltd and business of M/s. B.M. Industries would continue to run under the ownership of M/s. Bimal Aluminium Pvt. Ltd with regularity and permanency. The merger or takeover is for the complete business of M/s. B.M. Industries as a whole involving transferring of all assets & liabilities to M/s. Bimal Aluminium Pvt. Ltd and not for part of the assets. (b). Section 7 of the CGST Act 2017 defines the scope of supply. As per sub section 1, the supply includes sale, tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax calculated at the rate as specified in the corresponding entry in column (4) of the table. As per Sr. No.2 of the said notification, services by way of transfer of going concern, as a whole or an independent part thereof, have been exempted. Similar notification No 47/ ST 2 dated 30-06-2017 has been issued by the Haryana Government under HGST Act 2017. 6. The applicant also placed reliance on the advance ruling given by the Authority for Advance Rulings, Karnataka having Advance Ruling No KAR ADRG 06 of 2018 Dated 23/04/2018 = 2018 (5) TMI 1651 - AUTHORITY FOR ADVANCE RULING - KARNATAKA, in the case of Rajashri Foods (P) Ltd. The applicant has submitted that the facts and circumstances of the applicant's case are identical to the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITC lying as balance in electronic credit ledger of the going concern. In this regard, it is observed that Section 18 (3) of the CGST/HGST Act, 2017, provides as under: "(3) Where there is a change in the constitution of a registered person on account of sale, merger, demerger, amalgamation, lease or transfer of the business with the specific provisions for transfer of liabilities, the said registered person shall be allowed to transfer the input tax credit which remains unutilised in his electronic credit ledger to such sold, merged, demerged, amalgamated, leased or transferred business in such manner as may be prescribed." Further, Rule 41 of the CGST/HGST Rules, 2017, provides as under: "RULE 41. Transfer of credit on sale, merger, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lying in his electronic credit ledger to the transferee. Here it is to be noted that these provisions pertain to transfer of unutilized input tax credit. These provisions are not applicable to un-utilized balance lying in electronic cash ledger. 9. It is further observed that Section 7 of the CGST/HGST Act, 2017, defines the scope of supply, which includes sale, transfer, barter, exchange made for a consideration in the course of or for furtherance of business and also provides vide clause (d) to sub-section (1) that the activities to be treated as supply of goods or services as referred to in Schedule ll. As per Schedule II of the CGST/HGST Act 2017, para 4 pertain to transfer of business assets and clause (c) of para 4, provides as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ACT. 2017 12.1. The applicant, on merger of his proprietorship firm as a going concern with a private limited company, is not liable to pay tax under CGST/SGST Act on the fixed assets and currents assets including stocks of raw material, semi-finished and finished goods. 12.2. The input tax credit available in the credit ledger account proprietorship firm shall be transferred to the respective credit ledger account of the private limited company, consequent upon merger, subject to the provisions of Section 18(3) of the CGST/HGST Act, 2017 and Rule 41 of the CGST/HGST Rules, 2017. 12.3. The provisions of Section 18(3) of the CGST/HGST Act, 2017 and Rule 41 of the CGST/HGST Act, 2017, are not applicable to the balance in lying in electron ..... X X X X Extracts X X X X X X X X Extracts X X X X
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