There are two ways businesses are conducted in India; organic or inorganic. An organic way necessitates organising the internal resources to promote growth and help in the future development and expansion of the enterprise. On the other hand, an inorganic process involves a complete restructuring. This restructuring is done in sync with outside forces, like competition, diversification, and alliances, to set the pace for planned growth. The restructuring of a business also occurs in the transfer of ownership, especially if a company experiences financial challenges. Such a type of restructuring involves modifying the capital structure or the business model to make necessary changes in the company's current operations to drive more growth.
Did you know? In the event of a slump sale, all the assets (movable and immovable), stocks-in-trade, licences, contracts, intellectual properties, debtors, creditors as well as the employees of the business are transferred to the purchaser.
What is a Slump Sale Under GST?
Section II (42C) of the Income Tax Act of 1961 states that a "Slump Sale involves transferring one or more than one commercial activities of an organisation. It is done without assigning the value to the individual assets and liabilities.
It involves:
-
A sale of one or more than one undertaking
-
All assets and liabilities of the undertaking have to be transferred
-
An individual value cannot be assigned to assets and liabilities which are sold together for a certain amount of money
In this case, the cumulative value of the enterprise's total assets is the net worth, in the manner in which the details are provided in their books of account. The term 'going concern' is widely associated with a slump sale. When a slump sale takes place, the enterprise in question is considered a 'going concern,' i.e. continuance of its operation for a possible future. It also indicates that the said enterprise is not considering liquidation of its assets, nor is it aimed at the curtailment of its operations. The GST Act does not recognise the term 'going concern'.
Also Read: Meaning and Scope of Supply under GST
Concept of Slump Sale Under GST and the Impact of GST
What does the word 'supply' mean under the GST Act? The GST Act clearly states that GST is only applicable when there is a distinct supply of goods and services.
Section 7 of the CGST, i.e., the Central Goods and Services Tax, states the following
The supply of goods and services includes the following: Transfer, sale, exchange, barter, rental, lease, licence as well as disposal, involved in continuance of the business. A 'slump sale' is not a transaction during the operational course of the business nor the persistence of the business.
CGST Act - Section 7 (II) clearly states that the extent of supply extends beyond the continuance of the business. As a result, the transfer of the business, known as a 'going concern', will be considered 'supply' under GST.
Does this constitute goods and services? Given below are the specific sections of the Income Tax Act which give clarity on the same
CGST Act -Section II (52): The word, goods, implies the following
- Property that is movable excluding money and securities (though not income that includes actionable claim).
- Grass as well as the growing of crops.
- Agreement to detach all things attached to the land and all things considered as part of the land before the supply or under a contract of supply.
CGST Act - Section II (102) - Defines the words' service' as follows:
- Goods
- Money and securities (though includes actions related to using money or converting money by cash, i.e. from one currency, denomination or form to a different currency, denomination, or form will attract charges accordingly.
Also Read: Place of Supply of Goods under GST
CGST Act - Schedule II - Clause 4 (c)
When a person is no longer considered liable to pay taxes, then any items which are in any way, a part of the company's assets will have to be supplied by him in the course of the continuance of his business. It will have to be done as soon as he stops being liable for tax payment.
However, this clause will not apply if:
- The concerned business is being transferred as a going concern to another individual
- The business is managed ahead by a personal representative liable to tax payments.
Anything apart from goods is considered as 'services'. Any business that is handed over as a 'going concern' is excluded from the list of supply of goods. It makes the transfer of a business a 'going concern' and supply of service, and GST is imposed on the same. Thus, the transfer of a going concern is exempted under GST, whether as a whole or a part thereof. The transfer of business assets, however, will have GST implications.
Meaning of Mixed Supply Under GST
CGST Act - Section II (74) states that 'mixed supply' denotes the following:
Composite supply: When a person liable for tax payments supplies goods and services to a beneficiary, the goods and services are delivered to the beneficiary in a distinct combination. If the concerned elements in the mix do not qualify as goods or services, this will not be considered a mixed supply under GST.
Conclusion
When a business is transferred from one owner to another, the transaction requires an accurate evaluation to understand if the transfer is a going concern or not. A GST analysis (India) clearly states that it shall be exempt from GST if it is a going concern. In simple words:
- Transfer of business – is a supply of service
- Transfer of business assets – is a supply of goods
- When a business is transferred as a going concern – it is a supply of service and exempt from GST.
We hope this article has given you an insight into what slump sale under GST implies and its various aspects. Do you have issues with payment management and GST? Install the Khatabook app, a friend-in-need and one-stop solution for all issues related to income-tax or GST filing, employee management and more. Try it today!
