In another instance, considering whether a branch of a publishing house would have separate goodwill and if the said branch could be construed as an independent undertaking, it was held that each branch of a publishing house constituted as a separate undertaking since the branches were being transferred lock, stock, and barrel. It was further held that in such case, it was possible for each of such branch to have separate goodwill which would depend on a host of factors such as popularity, performance, circulation, peculiarities of the region, etc. Herein, the goodwill of such undertaking would form part of the transfer of the undertaking. On a similar note, the ITAT while considering the liberty awarded to the parties in deciding which assets and liabilities may form part of an undertaking, proclaimed that the intent is not to direct a businessman on how to conduct their business, and it is up to the transferee to determine the usage of the assets which form part of the undertaking. By way of the mere reason that some of the assets forming part of the transfer had not been utilized by the transferor prior to the transfer, the same cannot be said to have an effect on the merit of such unit being regarded as an undertaking.
Source: Barandbench
