FACT OF THE CASE:
A sole proprietorship business has been inherited by the legal heir on the occassion of the death of the sole proprietor. The same business is now run by the legal heir/representative. All the assets and liabilities along with stock was trasnfered to the legal heir. The legal heir has also applied for new GSTIN, because GSTIN is PAN based. The legal heir pays the GST on the supply of stock monthly after inheritance.
As per my interpretation of the GST law:
- As per para 4(c) of Schedule II, Transfer of Business Assets is treated as Supply of Goods if the goods forming part of the business carried on by a person who ceases to be taxable person, shall be deemed to be supplied by him, in the course or furtherance of business, immediately befroe he ceases to be a taxable person.
- Exceptions to this is: Business is transfered as a going concern to another person, OR, Business is carried on by a personal representative who is deemed to be a taxable person.
- Also as per Entry No. 2 of the Notification No. 12/2017, Services by the way of transfer of a going concern as a whole or an independent part thereof, has 0% rate.
- Form GST REG-10 and GSTR16 are required to be filed.
ISSUE:
- Is the legal representative of the deceased liable to pay GST on the stock as on the date immediately preceeding the death as it is defined as supply as per schedule II read with section 7?
- Can it be said to be transfer as going concern or Business is carried on by a personal representative who is ACTUALLY a taxable person?
- What are the forms required to be filed in case it's not taxable in case of going concern?
- If Form GST REG-10 and GSTR16 are required to be filed, what should be the output tax liability forming a part of the stock?
- Should tax be paid on the whole of the stock or just the stock (inputs) on which ITC has been claimed?