GST on Securitisation Transactions

Nidhi Bothra

Sikha Bansal

Transitioning into GST, assessing its impact on business and taking appropriate measures to bring about tax neutrality/ efficiency are the prime concern for all and sundry. GST also has an impact on the securitisation transactions in India which now happens to be Rs. 84,000 crores odd industry. In this Chapter we are broadly trying to deal with GST impact on securitisation of standard as well as non-performing assets and its various facets.

In India, securitisation is undertaken through the PTC route (issuance of pass-through certificates or direct assignments. The distinction is not relevant when we talk about securitisation of non-performing assets through asset reconstruction companies.

A.  GST implications on PTC transactions

The implications of GST will have to be mulled over at each stage of the securitisation  transaction. A securitisation transaction will have the following facets:

  1. Assignment of receivables by the originator to an SPV
  2. SPV acquiring receivables on discount
  3. SPV issuing PTCs to investors and servicing PTCs over the term
  4. Originator receives servicing fees for collections/ recovery of receivables
  5. Originator receives excess interest spread (EIS) in the transaction after servicing of the investors with the receivables collected.

There is one more issue of whether the SPV will be considered as a related person as defined under the CGST Act.

Below is a detailed analysis.

i.          Requisites of Taxability under GST

Section 9 of the CGST Act provides for levy and collection of CGST on all intra-State supplies of goods or services or both.

Hence, there must be “goods” or “services” or “both”, and the same shall be supplied.

“Goods” are defined in section 2(52) as –

“(52) “goods” means every kind of movable property other than money and securities but includes actionable claim, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before supply or under a contract of supply;”

“Services” are defined in section 2(102), as –

““services” means anything other than goods, money and securities but includes activities relating to the use of money or its conversion by cash or by any other mode, from one form, currency or denomination, to another form, currency or denomination for which a separate consideration is charged;”

Money, is therefore, excludible from the scope of “goods” as well as “services”.

Section 7 details the scope of the expression “supply”. According to the section, “supply” includes “all forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business.” However, activities as specified in Schedule III of the said Act shall not be considered as “supply”.

It may be noted here that “Actionable claims, other than lottery, betting and gambling” are enlisted in entry 6 of Schedule III of the said Act; therefore are not exigible to GST.

The discussion below studies the nature of “receivables” and seeks to determine whether assignment of receivables will be treated as a supply of goods or services within the purview of the GST law.

Nature of “Receivables”

There is no doubt that a “receivable” is a movable property. “Receivable” denotes something which one is entitled to receive. Receivable is therefore, a mirror image for “debt”. If a sum of money is receivable for A, the same sum of money must be a debt for B. A debt is an obligation to pay, a receivable is the corresponding right to receive.

A “debt” is a sum of money which is now payable or will become payable in the future by reason of a present obligation, depitum in praesenti, solvendum in future.  See, Web v. Stendon, (1883) 11 Q.B.D. 518, 572; Kesoram Industries and Cotton Mills Ltd. v. CWT, 1966 AIR 1370 : 1966 SCR (2) 688.

Coming to the definition of “money”, it has been defined under section 2(75) as follows –

“money” means the Indian legal tender or any foreign currency, cheque, promissory note, bill of exchange, letter of credit, draft, pay order, traveller cheque, money order, postal or electronic remittance or any other instrument recognised by the Reserve Bank of India when used as a consideration to settle an obligation or exchange with Indian legal tender of another denomination but shall not include any currency that is held for its numismatic value.”

The definition above enlists all such instruments which have a “value-in-exchange”, so as to represent money. A debt also represents a sum of money and the form in which it can be paid can be any of these forms as enlisted above.

So, in effect, a receivable is also a sum of “money”. As such, receivables shall not be considered as “goods” or “services” for the purpose of GST law.

ii.  Receivables vis-à-vis Actionable Claims

As mentioned earlier, “actionable claims” have been included in the definition of “goods” under the CGST Act, however, any transfer (i.e. supply) of actionable claim is explicitly excluded from being treated as a supply of either goods or services for the purpose of levy of GST.

Section 2(1) of the CGST Act defines “actionable claim” so as to assign it the same meaning as in section 3 of the Transfer of Property Act, 1882, which in turn, defines “actionable claim” as –

“actionable claim” means a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property, or to any beneficial interest in movable property not in the possession, either actual or constructive, of the claimant, which the civil courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent;”

It may be noted that the inclusion of “actionable claim” is still subject to the exclusion of “money” from the definition of “goods”. The definition of actionable claim travels beyond “claim to a debt” and covers “claim to any beneficial interest in movable property”. Therefore, an actionable claim is definitely more than a “receivable”. Hence, if the actionable claim represents property that is money, it can be held that such form of the actionable claim shall be excluded from the ambit of “goods”.

There are views which, on the basis of the definition above, distinguish between — (a) a debt secured by mortgage of immovable property, and a debt secured by hypothecation/pledge of movable property on one hand (which are excluded from the definition of actionable claim); and (b) an unsecured debt on the other hand. However, the author opines that a debt, whether secured or unsecured, is after all a “debt”, i.e. a property in money; and thus can never be classified as “goods”. Therefore, the entire exercise of making a distinction between secured and unsecured debt may not be relevant at all.

In case it is argued that a receivable which is secured (i.e. a secured debt) shall come within the definition of “goods”, it must be noted that a security granted against a debt is merely a back-up, a collateral against default in repayment of debt.

iii.   Assignment of receivables as “Supply”

Though, the fact that a debt is merely a representation of “money” and therefore there is no question of any “supply” under the GST law, yet it is important to study the scope of the word “supply” in this context.

In one of the background materials on GST published by the Institute of Chartered Accountants of India[1], it has been emphasised that a transaction where a person merely slips into the shoes of another person, the same cannot be termed as supply. As such, unrestricted expansion of the expression “supply” should not be encouraged:

“. . . supply is not a boundless word of uncertain meaning. The inclusive part of the opening words in this clause may be understood to include everything that supply is generally understood to be PLUS the ones that are enlisted. It must be admitted that the general understanding of the world supply is but an amalgam of these 8 forms of supply. Any attempt at expanding this list of 8 forms of supply must be attempted with great caution. Attempting to find other forms of supply has not yielded results however, transactions that do not want to supply have been discovered. Transactions of assignment where one person steps into the shoes of another appears to slip away from the scope of supply as well as transactions where goods are destroyed without a transfer of any kind taking place.”

A simple example of assignment of receivable is – A sells goods to B. B owes a certain sum of money to A. This sum of money is “receivable” in the hands of A. A has the right to get that sum from B. A decides to pass that right to C. He therefore, assigns the receivable to C, for a certain consideration. Therefore, A is actually passing on the benefits under the contract with B, to C. C is merely stepping into the shoes of A. There is no separate supply as such.

Also, as already stated, where the object is neither goods nor services, there is no question of being a supply thereof.

iv.     Servicing Fees

Typical to a securitisation transaction is that the originator continues to do the collection of receivables from the obligors for and on behalf of the SPV. The originator, therefore acts as a servicing agent and charges a servicing fees.

Under the current tax regime, servicing fees was subject to 15% service tax, charged by the originator to the SPV. The SPV would typically not be able to claim set off and this would be a sunk cost.

This cost under the GST regime goes up to 18%. Therefore if the servicing fee is 50 basis points, the increase in cost is 9 basis points. Since SPV cannot claim the set off, the GST is a dead loss.

In India, the typical servicing fee charged is 25 basis points. Whether or not the consideration for taxable supply of service is reasonable would depend upon the type of a pool. For instance, if the pool is a microfinance pool or a granular pool, it may not seem reasonable to charge a servicing of 25 bps as against a car loan pool. Therefore, where the servicing fee does not seem at arm’s-length, it may be challenged that servicing fees is not adequate consideration or the only consideration for collection of receivables.

Further, if it was to be contested that the SPV is a related person to the originator as defined under the CGST Act, then the servicing fees charged could be subject to valuation rules which will subject the servicing fees to reasonable determination of value of such supply of service by the assessing officer.

v.   SPV a related person?

One of the issues during securitisation transaction structuring is to ensure that an SPV is a distinct entity from legal and accounting perspective. It would be relevant to have independence established of the SPV from tax perspective as well.

The definition of related persons under CGST is as follows:

For the purposes of this Act,––

(a) persons shall be deemed to be “related persons” if––

(i) such persons are officers or directors of one another’s businesses;

(ii) such persons are legally recognised partners in business;

(iii) such persons are employer and employee;

(iv) any person directly or indirectly owns, controls or holds twenty-five per cent. or more of the outstanding voting stock or shares of both of them;

(v) one of them directly or indirectly controls the other;

(vi) both of them are directly or indirectly controlled by a third person;

(vii) together they directly or indirectly control a third person; or

(viii) they are members of the same family;

(b) the term “person” also includes legal persons;

(c) persons who are associated in the business of one another in that one is the sole agent or sole distributor or sole concessionaire, howsoever described, of the other, shall be deemed to be related

One of the ways of establishing that the SPV and the originator are related persons, is by establishing control by the originator. The term control has not been defined under CGST and therefore, one may have to rely on accounting tests for control.

As per the accounting standards, if the originator is controlling the SPV, it would lead to consolidation thereby frustrating the purpose of doing securitisation itself.

So, to avoid consolidation it is pertinent to avoid control by the originator over the SPV. If there is no control, the other parameters for falling into related person definition could be meandered.

However, if the transaction structure was such that control could be established then the transaction is subject to arm’s-length test and valuation rules.

vi. Treatment of EIS component

Another critical issue in structuring securitisation transactions is how the excess interest spread or EIS will be swept by the originator from the transaction. Typically, transactions are devised to give residuary sweep to the originator after servicing the PTCs. Therefore there could be a challenge that EIS is also a component of servicing fees or consideration for acting as a servicing agent. The meaning of consideration[2] under the CGST Act is consideration in any form and the nomenclature supports the intent of the transaction.

Since, the originator gets excess spread, question may arise, if excess spread is in the nature of interest. Therefore it is important to structure excess spread as IO strip.

Going forward it would be rather recommendable that the sweep of excess spread is structured as IO strip. Since it is interest only.

vii.  Servicing of PTCs

Another facet of securitisation transaction that needs attention from GST perspective, is taxability of servicing of coupon and repayment of PTCs. PTCs being securities, servicing of securities is exempt from applicability of GST.

viii.   GST on Securitisation – Global Overview

Since the Indian GST law is largely inspired by EU VAT laws, it would be quite relevant to go through UK and EU precedents pertaining to securitization and factoring transactions. It is important to understand that in every loan sale, securitization, factoring or assignment of receivables, the common thread is the assignment of receivables. Hence, if the assignment of receivables is taken as a “supply”, then, in each of these cases, there would be a question of applying VAT on the entire turnover, that is, the entire consideration involved in the supply of receivables.

In UK, a distinction is drawn between “sale of debt” and “assignment of debt”. The sale of a debt is a financial transaction, whereby the purchaser acquires ownership of debts from a creditor, at a nominal sum to the face value of the debts. The purchaser assumes all the rights and obligations of the original creditor and all legal and beneficial or equitable interest passes to the buyer to whom full title and risk is transferred. However, in an assignment only the equitable interest is passed to the assignee and the assignor retains the legal interest in the debt and any liability to obligations arising from the original contract. Often it will not be possible for the assignee to sell that which has been assigned.

The distinction is akin to the distinction between “assignment of a contract” and “assignment of benefits under contract” as pointed out in the article titled, “Law of Assignment of Receivables”, Vinod Kothari[3].

The sale of a debt is exempt from VAT under the VAT Act 1994, Schedule 9, Group 5, item 1. And, the assignment or re-assignment of a debt is not a supply for VAT purposes[4].

In Finanzamt Gross Gerau v. MKG Kraftfahrzeuge Factory GmbH[5], the European Court of Justice had to examine whether, in case of factoring transaction, VAT was applicable on the entire turnover of receivables, or was it applicable only on the commission charged by the factor for the assumption of the risk of default or other services of the factor. In this ruling, the ECJ held factoring to be an economic activity, by way of exploitation of the debts to earn an income by providing a service to the factor’s clients; however, it is not the debt itself which is a supply, but the commission charged by the factor.

In MBNA Europe Bank v. Revenue and Customs Commissioners[6], (2006) All ER (D) 104 (Sep); [2006] EWHC 2326 (Ch) , the Chancery Court discussed whether a credit card securitization amounts to a taxable supply for VAT purposes.  After elaborate discussion on the nature of securitization, and referring to findings of lower authorities that securitization is nothing but a sophisticated form of borrowing, the Chancery Court held that the assignment of receivables in a securitization was not a supply at all.

The position thus held by Courts is well accepted by the administration itself. UK HMRC’s Internal Manual clearly puts the tax position on securitization as follows:

The assignment of the assets by the originator

The assignment of the receivables by the originator to the SPV is not a supply for VAT purposes. It is simply the fulfilment of a pre- condition so that the SPV can provide its ‘securitisation’ service.

The issue of securities to fund the purchase of the assets

The issue of a security for the purposes of raising capital is not a supply for VAT purposes (see VATFIN4250).

The administration of the assets

The servicer is the entity that deals with the receivables on a day to day basis, administering and collecting them and transferring the funds to the SPV, normally whilst maintaining the original contract with the underlying debtors.  The servicer will receive a fee for this service from the SPV which is generally set at a percentage of the aggregate balance of the loans/receivables or the funds collected. The servicer services are supplies to the SPV in the course of an economic activity and the servicer fee is consideration for that supply.

B.  GST implications on Direct Assignment transactions

In case of direct assignment, as in case of PTCs transaction, the assignment of receivables will be tax exempt (going by the same rationale, as in case of securitisation transactions).

The servicing fees charged to the buyer, would be subject to GST. The only reprieve here being that the buyer would be a bank or an NBFC and would be able to claim set off on the GST levied.

C.  GST implications on sale of Non-Performing Loans (NPLs)

In case of sale of NPLs to an asset reconstruction company (ARC), the receivables are acquired by a trust floated by an ARC. The receivables usually are not on the books of the ARC directly.

In case of ARCs, it would be a very strong contention that the trust of the ARC is a related person to the ARC and therefore the management fees, the carry amount etc charged by the managers would be subject to valuation rules.

With regard to the security receipts (SRs) issued by the ARCs, the taxability of such SRs would be the same as in case of PTCs, as both are securities and therefore not falling under taxable supply.

D. Conclusion

It is established that the GST regime requires mollification in the existing transaction structures such that tax inefficiency in the change of regime can be avoided.

It is important that we understand these nuances to avoid tax litigations at a later stage.

The securitisation industry as gone through several rounds of regulatory changes – some favourable and some not. From change in the regulatory guidelines of RBI to distribution tax applicability and subsequent roll-over. There have been several seasons of changes to come to some momentum as on date.

Therefore it is important to take cognizance of the changes and make the appropriate stitch now to save the nine later!


[1]; pg. last visited on 19.05.2018

[2] (31) “consideration” in relation to the supply of goods or services or both includes––

(a) any payment made or to be made, whether in money or otherwise, in respect of, in response to, or for the inducement of, the supply of goods or services or both, whether by the recipient or by any other person but shall not include any subsidy given by the Central Government or a State Government;

(b) the monetary value of any act or forbearance, in respect of, in response to, or for the inducement of, the supply of goods or services or both, whether by the recipient or by any other person but shall not include any subsidy given by the Central Government or a State Government:

Provided that a deposit given in respect of the supply of goods or services or both shall not be considered as payment made for such supply unless the supplier applies such deposit as consideration for the said supply;

[3]; pg. last visited on 19.05.2018

[4]; pg. last visited on 19.05.2018

[5]; pg. last visited on 19.05.2018

[6]; pg. last visited on 19.05.2018

Furniture rental startups: A financial perspective

Estimates peg the global furniture rental market at anything between $5-8 billion. Leasing/renting of home durables has seen steep growth. The idea of ownership has been superseded by the desire to gain better experiences by renting or sharing resources. Whatever the absolute numbers, the growth in mobility and intra-country migration suggests that there is a large and ever growing clientele of urban professionals with transferrable jobs and disposable income. Increasing numbers of furniture and appliance rental startups have sprung up to cater to this clientele. This article takes a quick look at the market and its potential in time to come. Read more

GST on Priority Sector Lending Certificates

Case for Mezzanine Tranche in securitisation

By Nidhi Bothra, (


As a securitization market matures, one of the surest things that should emerge is the market for mezzanine tranches. This article tries to articulate on the relevance of mezzanine tranche in the securitization market that is on an upswing currently.

What is a mezzanine tranche?

A mezzanine tranche is a small layer positioned between the senior tranche (mostly AAA) and a junior tranche (unrated, typically called equity tranche). The mezzanine tranche, is normally defined as the piece above an investment grade rating – that is, if the transaction was putatively to be rated BBB, what would have been the support required.


Ideally the role of a mezzanine tranche is to be able to reduce the weighted average cost of the asset-backed securities issued. To explain further, consider a transaction with only 2 tranches – a senior tranche and a junior tranche, as it currently is the practice in India. As there is no mezzanine tranche, and the senior tranche still expects a AAA or similar rating, the total level of support required for the senior tranche is the total of the (first loss piece + second loss piece). In a 2 tranche transaction both the first loss and the second loss support is provided by the equity tranche which is held by the originator.


Assume a case, where the support required for an AAA rating is 11%, which is provided by the equity tranche. In absence of a mezzanine tranche, the weighted average cost would be high. On the other hand, if for BBB rating, the support required is 8% and at AAA, the support required is 11%, then 3% is the second loss piece. In absence of the second loss piece, the unrated lower tranche or the equity tranche has to be 11%. The difference in the weighted average costs with and without the mezzanine tranche is illustrated below:


Two Tranches Three Tranches
size coupon size coupon
Class A 89% 9% 89% 9%
Class B 11% 18% 3% 12%
Class C 8% 18%
Weighted average cost     9.990%   9.810%


The cost of the unrated or equity tranche for regulatory purposes is deduction from equity. For economic purposes, it is nothing but originator’s equity. Hence, the cost should be the same as the cost of originator’s equity. Assume the cost to be 18%. The weighted average cost, therefore, in case of a two tranche transaction, as also illustrated in the table above is (18%*11%) + (9% *89%), which comes to 9.990%.

Now if the unrated tranche is split into two pieces – the mezzanine tranche and the equity tranche, as in case of three tranche illustration in table above, as long as the cost of the mezzanine tranche is lower than 18%, the weighted average cost of the transaction comes down. The weighted average cost of the three tranche transaction is (8%*18%)+(89%*9%)+(3%*12%), which comes to 9.810%.

There is every reason for the cost of the mezzanine tranche to be significantly lower than 18% as this class itself has the support of the equity tranche.

Relevance of mezzanine tranche:

Adding a mezzanine tranche to a securitization structure has several benefits. One of the benefits as illustrated above is reducing the weighted average costs of the transaction. This would mean that the equity required for the transaction would also come down. (As illustrated in the transaction, the requirement for equity tranche falls, therefore the regulatory requirement for the equity tranche would also be lower than a two tranche securitization structure). Since the equity infusion comes down, the leverage of the transaction goes up.

Adding a mezzanine tranche from accounting perspective also is beneficial, as it facilitates the off balance sheet treatment for the receivables in case of securitization transaction. IFRS 9 is relevant for securitization accounting and provides for principles and conditions of de-recognition. IFRS 10 and 12 are also relevant for securitization accounting, as they deal with the issue of consolidation and disclosure requirements as applicable to unconsolidated structured entity respectively.

The conditions of de-recognition are stated in para 3.2.6 of IFRS 9. There may be essentially 3 situations:

  • Transfer of substantially all risks and returns – de-recognition
  • Retention of substantially all risks and returns – no de-recognition
  • Retention of some risks and returns – however, surrender of control – partial de-recognition.

In order to qualify even for a partial de-recognition, there has to be a significant (that is, more than nominal) transfer of risks and returns. We need to understand two key elements:

  • Risks
  • Returns

Risks is exposure to credit risk and returns is compensation for such risks. Prior to securitization transaction, the risks are that of the originator. Post securitization, the test of de-recognition is the significant transfer of risks and rewards. In a two tranche transaction, the significant amount of risks are retained by the originator and the originator also retains the excess spread or residual profits in the transaction and therefore, is a key constraint to the assets going off the books. Slicing of the equity tranche to create a mezzanine tranche results in transfer the risks of default. The transaction should facilitate the assets going off the books (except for the equity/ residuary piece retained by the originator)[1].

Issues in mezzanine tranching

While there is relevance to illustrate on slicing of a mezzanine tranche, considering the Indian securitization market, it is pertinent to mention some demerits as well.

Typically a mezzanine tranche is a thin slice and therefore could be too small an investment for institutional investors. To explain the point, if receivables worth Rs. 100 crores are securitized, the mezzanine tranche may be on Rs. 3-4 crores which may not be too lucrative for institutional investors to consider investing in.

Also, while the probability of default of a mezzanine tranche is a function of the subordination below it (the fatness of the equity tranche), its expected loss will be quite high given its thin nature. To explain the point further, in a transaction the equity tranche is of Rs 8 crores, and mezzanine tranche of Rs 4 crores (out of a total issuance of Rs 100 croes), if the loss reaches Rs 9 crores, it takes away 25% of the principal of the mezzanine tranche.

If an investor were to invest in the mezzanine tranche as well as the senior tranche, his total return will be worse than how much he will make by investing in a senior tranche of the transaction which does not have the mezzanine tranche. This is but natural, as the laying of the mezzanine tranche between the senior and the equity tranche goes to the benefit of the issuer – hence, to the disadvantage of the investor.

Possible investors in mezzanine tranche in India

Considering the Indian securitization market, the possible investors for mezzanine tranche could be institutional investors (despite the concerns on the thin slice) or HNIs.

One of the ways to deal with the thin size of the mezzanine tranche is to create collateralized debt obligations or CDOs. The idea would be to pool several of such mezzanine investments and thereby, a virtual CDO that invests in mezzanine tranches.

One of the pausible hurdles to creating a CDO is that it may be viewed as a case of re-securitisation which is not permitted under the securitization guidelines. While re-securitisation is not permitted, but a fund (without structured liabilities) investing in mezzanine tranches could be an alternate and legally feasible solution. This may create diversification as well as allow high rate of return in securitsation transactions.


Globally securitisaiton structures have three or more tranches. The growth and development of securitization market led to innovations to make the securitization transactions cost effective. It is time for the securitization market in India to evolve and grow beyond its inefficiencies.

Globally, as well, slicing and dicing of tranches is a common phenomenon and so is the case of creation of CDOs and CDO squares and cubes. It is time that the Indian securitization market also encashes upon the inherent benefits of securitization which remain largely untapped in the existing structures prevalent in the Indian market.


Impact of GST on factoring transactions

By Abhirup Ghosh, (

Factoring is a very popular product mode of working capital funding across the globe. In India, however, the picture is not quite rosy for factoring companies. Nevertheless, like every other thing in the country, factoring transactions will also be affected by the introduction of GST in India. Here in this article, we intend to walk you through the probable impact, GST would create on factoring transactions. Read more

GST on securitisation transactions.

By Nidhi Bothra, (

Transitioning into GST, assessing its impact on business and taking appropriate measures to bring about tax neutrality/ efficiency are the prime concern for all and sundry. GST therefore also has an impact on the securitisation transactions in India which now happens to be Rs. 85,000 crores[1] odd industry. In this article we are broadly trying to deal with GST impact on securitisation of standard as well as non-performing assets and its various facets. Read more

Accounting treatment of securitization transactions undertaken by financial entities in India

By Vijaylakshmi Agarwal & Kanishka Jain, (

1.     Introduction

Presently, the accounting treatment for securitization transaction is unclear and ambiguous despite a clear convergence with IFRS. The accounting principle for securitization was contained in AS 30 (based on IAS 39). The ICAI had originally promulgated AS 30 (based on IAS 39) in the year 2009, but was kept in abeyance, and subsequently repealed[1], while IND AS 109 is applicable from the year 2018. Therefore currently, there is no standard as such dealing with securitization for such companies on which IFRS is not applicable. Therefore for the interim period i.e. from 2015 to 2018, there are no standards governing the accounting for securitization in existence. Read more