A business transfer classified as a 'slump sale' is not considered a 'sale of goods' under the MVAT Act, meaning no VAT liability arises from such transaction.

JUDGMENT

G. S. Kulkarni, J. - This petition under Articles 226 and 227 of the Constitution of India challenges an order dated 31 March, 2021 passed by respondent no.2-Joint Commissioner of State Tax (for short, "reviewing authority") under Section 25 of the MAHARASHTRA VALUE ADDED TAX ACT , 2002 (for short "MVAT Act") exercising the review jurisdiction. By the impugned order, respondent no.2 has reviewed the order dated 16 March, 2015 passed by the assessing officer finalizing the petitioner's assessment for the financial year 2010-11. Consequent to the impugned order, a notice of demand dated 31 March, 2021 is issued to the petitioner under Section 32 of the MVAT Act, which is also assailed by the petitioner.

2. Thus, the primary question which arises for consideration in the present proceedings is as to whether the respondents in the facts of the case could tax sale of the petitioner's 'Base Domestic Formulation Business' as a "going concern" (slump sale) under the provisions of the MAHARASHTRA VALUE ADDED TAX ACT , 2002.

A. Facts:-

3. The facts as discerned from the petition are:- During the financial year 2010-11, the petitioner entered into a Business Transfer Agreement dated 21 May, 2010 (for short "BTA") with one M/s. Abbott Healthcare Pvt. Ltd. (for short "Abbott Healthcare") to sell, assign, transfer, convey and deliver to Abbott Healthcare "the Base Domestic Formulations Business" (comprised of Healthcare Solutions business and the mass market branded formulation - (Truecare business) on a "going concern" basis for a total cash consideration of Indian Rupees equivalent of US $ 3.72 billion.

4. Under the BTA, for the limited purpose of adjudication of stamp duty, a bifurcation of the part consideration was provided in terms of Article 3 read with Schedule 3.3 of the BTA.

5. On 08 September, 2010, the petitioner and Abbott Healthcare entered into an amendment agreement to the BTA, to also include remaining tangible and intangible assets, in terms of which the consideration payable for the acquisition of the said business as a going concern, was increased to US $ 3.80 billion.

6. The petitioner was subjected to assessment for financial year 201011 under Section 23 of the MVAT Act. An assessment order dated 16 March, 2015 was passed, inter alia holding that the transaction contemplated and effected under the BTA, was a transfer of a business "on a going concern basis" and hence, not e