Good & Service Tax (GST) – Page 2 – Vinod Kothari Consultants

Car Leasing In India: ‘Breaking the Stereotypical Definition Of Luxury’

July 12, 2019/0 Comments/in Good & Service Tax (GST), Indirect Taxes, Leasing and Asset Financing, RBI, UPDATES /by Vinod Kothari Consultants

Julie Mehta (julie@vinodkothari.com)

Introduction

Who thought hiring was even an option to enjoy the luxury of having to use a car. But with the world undergoing a paradigm shift, it untapped its energies into providing and establishing better services for its customers, leasing has paved its way into existence. Most of the industries have adopted this concept and structured their services accordingly in order to provide the best they can to their customers, but that requires huge understanding of their needs. A commoner would always be awed by the immensely developing technology and the environment around them but limited resources makes them take a step back from the thought of availing such services. The market had its solution as hiring and renting came into picture. This has ensured dreams do come true.

Car has always been a luxury at least in most parts of India because of the fact that India still in its developing stage and there still remains a big gap between the rich and the poor and the middle income families fall nowhere. Indians have been developed with the mind state that not everyone can afford everything and thus one should limit their demands keeping in mind their pocket potential. The concept of hiring and renting is not only limited to houses and properties but with the advent of MNC’s and startup companies, they have widened the scope of bringing in the concept of hiring even furniture, vehicles, electronic equipment’s, etc.

Earlier, the concept of car leasing was only limited to corporate senior executives that was earlier known as ‘corporate leasing’ and was common for the luxury car brands. But slowly it has trickled down and become accessible to commoners and middle income families. Companies like Mahindra & Mahindra made some of its models available for leasing. Following this concept, several other car brands like Hyundai, TATA group and luxury brands like BMW, Mercedes etc. have also opened their doors to providing the lease facilities.

Car leasing and rental is one of the most lucrative and fast growing segment of the automobile sector in India even though it currently represents only 4-5% of the market in terms of absolute number of vehicles, but its future prospects are strong enough.

Factors like increasing popularity of app-cab providers like Ola, Uber, Zoom car cab booking facilities, rapid urbanization, relocation of rural population into cities, adds on to the potential of car leasing in India.

[1]The growth of the market in India is to ensure manifold growth in its CAGR by 15-20% in the coming ten years and further on making hiring of cars simpler eventually with current worth of Rs. 1500 crores. Most car making companies are making 40% of its business from leasing cars. This has largely helped change the mentality of customers and imbibed the fact that ‘why buy when you can lease it’.

Yellow number plates or white number plates?

People remain apprehensive about the color of the number plate they use in the car. While a yellow number plates denotes commercial use, white number represents personal use. People taking cars on lease will of course want white number plates on their cars.

The current legal framework for registration of motor vehicles allow cars taken on lease for personal use to bear white number plates.

In case of a car taken on lease, the lessee is the person having possession of the vehicle and hence, the ‘owner’ as per the Motor Vehicles Act, 1988. Further, since it is the lessee who is actually using the car and the same has not been given on hire or used for any other commercial purpose, the car shall have a white number plate.

Global Status of Car Leasing

Globally, car leasing and hiring has been prevalent and growing for many years now. The analysts have forecasted that in the coming years, the global leasing market is to grow at a CAGR of 13-15%. This is gaining momentum due to the development of new mobility concepts by car leasing companies. For example, telematics was introduced in leased vehicles to monitor their usage on the job, another technological development was the installation of navigation in the leased vehicles making it more convenient for the lessor. People want change and with such facilities where there is an added benefit of not burning the pockets of customers, the lease scheme always works to hire cars on lease and cancel the contract anytime to shift on to better and advanced models of cars.[2]

The new trends dominating the global markets are the introduction of electric vehicle leasing and environment friendly cars that lead to sustainable development in the car manufacturing industries as well in the overall environmental situation. Such facilities encourage people to be more socially responsible and to do their bit towards the betterment of the society and also getting the leasing benefit out of it. Governments across the world are offering subsidies and tax benefits to encourage and boost the penetration of electric vehicles in their fleet. They have also introduced the concept of leasing old cars which helps reduce wastage as well as optimum usage. It is offered at a highly considerate premium and is attractive for low income customers. The global leasing market is fast moving with efficient strategies that ensures further growth too.

[3]Why has Leasing gained popularity in recent times?

GST introduction has come out to be a source of relief in time of distress for the Indian markets and consumers due to the stiff tax system of the country resulting in poor market functioning. With the introduction of ‘Goods and Services Tax’ on July 1, 2017, times have changed for the consumers, dealers as well as manufactures and has helped bring stability and balance in the economy by considering every person and their transaction at par, with the motive to bridge the gap between rich and poor in the long run. Evaluating their benefits below taking into consideration automobile industry:

To the consumers: The new tax regime has resulted in significant reduction in the tax rates imposed on the end consumers in comparison to the previous tax system.
To the dealers: The benefit of claiming the tax paid earlier benefits the dealers with the introduction of GST provides an added advantage to the dealers.
To the manufacturers: In recent times, car manufacturing companies have marked a fall in their sales which has led to dwindling profits. With the increasing exposure to car leasing, manufacturers have found their resort to stabilise their performance. This option induces customers to opt for leasing, thereby ensuring good business to the car manufacturers.

CAR TYPE	GST RATES	COMPENSATION CESS	TOTAL
Small Cars	28%	1% or 3% (depending on capacity)	29% or 31%
Mid-segment Cars	28%	15%	43%
Large Cars	28%	17%	45%
Sports Utility Vehicles (SUV’s)	28%	22%	50%
Electric Cars	12%	N.A.	12%

Numerical Comparison

To understand the calculation of Loan EMIs and Lease rentals, we structure an example with the concept of residual model to distinguish the calculations of both the alternatives.

Any loan transaction requires an initial down payment to the seller after which installments follow on monthly/quarterly/annually basis. The down payment creates an extra outflow on part of the buyer on loan along with additional installments. While no down payment is required in case of a lease that makes its overall outflow on the lower side in comparison to a loan.

Plus, in case of a lease transaction, the lessor takes an exposure on the residual value of the asset, this brings down the lease rentals per month.

In the example below, with the assumption of different rates of residual value, we understand that with the every increase in the percentage of residual value, the lease rentals of the operating lease borne by lessee comes down. This implies lower the term of the lease contract, lesser value of the asset is used, and thus lesser are thee lease rentals.

Details of the Vehicle
Unit Cost	1000000.00
GST rate	28%
Compensation Cess	17%
Rate of GST	45%
GST	450000.00
Total	1450000.90

When Residual Value is considered to be 20%

Operating lease arrangement
Basic price	1000000.00
Add GST on purchase (ITC eligible)	450000.00
Funding Amount	1450000.00
Processing fees	3.80%	55100.00
Expected Residual Value	20%	200000.00
Tenure	48
IRR	18%
Lease Rentals (RV not factored)	₹ 42,593.75
Lease Rentals (before passing GST benefit)	₹ 39,718.75
Input tax credit percentage	100%
Less: GST benefit	₹ 9,375.00
Lease Rentals (after passing GST benefit)	₹ 30,343.75
Add: GST on rentals	₹ 13,654.69
Total inflow	₹ 43,998.44

Loan arrangement
Loan amount	1450000.90
Processing fees	3.80%	55100.0342
Expected Residual Value	0%	0
Tenure	48
IRR	18%
EMI	₹ 42,593.78

When Residual Value is considered to be 25%

Loan arrangement
Loan amount	1450000.90
Processing fees	3.80%	55100.0342
Expected Residual Value	0%	0
Tenure	48
IRR	18%
EMI	₹ 42,593.78

Operating lease arrangement
Basic price	1000000.00
Add GST on purchase (ITC eligible)	450000.00
Funding Amount	1450000.00
Processing fees	3.80%	55100.00
Expected Residual Value	25%	250000.00
Tenure	48
IRR	18%
Lease Rentals (RV not factored)	₹ 42,593.75
Lease Rentals (before passing GST benefit)	₹ 39,000.00
Input tax credit percentage	100%
Less: GST benefit	₹ 9,375.00
Lease Rentals (after passing GST benefit)	₹ 29,625.00
Add: GST on rentals	₹ 13,331.25
Total inflow	₹ 42,956.25

When the Residual Value is considered to be 30%

Loan arrangement
Loan amount	1450000.90
Processing fees	3.80%	55100.0342
Expected Residual Value	0%	0
Tenure	48
IRR	18%
EMI	₹ 42,593.78

Operating lease arrangement
Basic price	1000000.00
Add GST on purchase (ITC eligible)	450000.00
Funding Amount	1450000.00
Processing fees	3.80%	55100.00
Expected Residual Value	30%	300000.00
Tenure	48
IRR	18%
Lease Rentals (RV not factored)	₹ 42,593.75
Lease Rentals (before passing GST benefit)	₹ 38,281.25
Input tax credit percentage	100%
Less: GST benefit	₹ 9,375.00
Lease Rentals (after passing GST benefit)	₹ 28,906.25
Add: GST on rentals	₹ 13,007.81
Total inflow	₹ 41,914.06

Conclusion

The major differentiating factors between a lease and a loan is that the former gives the right to use the asset without any upfront down payment, however, in case of the latter, there is an upfront down payment. Leasing works better when the lessor takes exposure on a handsome amount of residual value. Otherwise, it will turn out to be costlier than loan.

In the coming years, the car leasing market in India will be prospering as most car brands have now started to expand their services to even leasing now, which wasn’t prevalent until the last 4-5 years. With this competitive spirit, many more well developed brands would undertake this strategy to enhance customer base. The statistics of no: of cars being sold is going through a falling spree currently and is expected to fall further. But the leasing market will be flourishing on the other hand. It provides the ‘Best of Both Worlds’ to the customers as well as benefits the owner who still retain the ownership of the cars and gain benefit out of it.

[1] http://www.businessworld.in/article/-India-s-Car-Leasing-Market-Is-Worth-Rs-1-5K-Cr-Poised-For-15-20-CAGR-/27-05-2017-119041/

[2] www.statista.com

[3]http://www.cbic.gov.in/resources//htdocs-cbec/gst/notification05-compensation-cess-rate.pdf;jsessionid=B47A84DD8CE463AF356CD17117E2316B

[4]https://www.statista.com/outlook/270/119/car-rentals/india#market-arpu

Union Budget 2019-20: Impact on Corporate and Financial sector

July 5, 2019/0 Comments/in Bond Market, Capital Markets, Financial Services, Good & Service Tax (GST), Housing finance, Insolvency and Bankruptcy, NBFCs, RBI, Taxation, UPDATES /by Vinod Kothari Consultants

E-form AGILE- Consolidation of various registrations along with company incorporation

April 29, 2019/0 Comments/in Companies Act 2013, Corporate Laws, Good & Service Tax (GST), MCA /by Vinod Kothari Consultants

By Dibisha Mishra (dibisha@vinodkothari.com) (corplaw@vinodkothari.com)

Introduction

There has been a series of changes brought in by the Ministry of Corporate Affairs (“MCA”) in recent years to bring in better transparency, easier compliance and weed out hurdles in the way of Ease of doing Business. In furtherance of the same, MCA vide notification dated 29^th March, 2019, notified Companies (Incorporation) Third Amendment Rules, 2019 (hereinafter referred to as “Amended Rules”)[i] which has upgraded the existing SPICe form with a view to bring in a single window system for making application under GST, Employees Provident Fund Organization (‘EFPO’) and Employees State Insurance Corporation (‘ESIC’).

These additional services are being catered via e-form INC-35 named as ‘AGILE’ which shall be linked with SPICe (e-form INC-32) during filing with MCA. It is to be noted that though linking of the form is mandatory, option of availing the aforementioned services is left to the applicant. The company can very well choose the services which it wishes to avail.

The main features along with the technicalities of the incorporation process prior to the Amended Rules have been covered in our earlier article[ii]. This write up covers the highlights of AGILE along with a brief discussion on some practical aspects. Read more →

Slump sale, a supply of goods or service under GST?

February 7, 2019/0 Comments/in Good & Service Tax (GST), Indirect Taxes, Taxation /by Vinod Kothari Consultants

By Yutika Lohia (finserv@vinodkothari.com)

Introduction

India is en-route to turn itself into a 21^st century super-economy fuelled by the unprecedented growth of its business enterprises. Business may grow in two ways – either in an organic way or inorganic. The former refers to the internal forces of the enterprises which are re-organised to bring in development and growth into the business, whereas, in case of inorganic growth, the company goes into corporate restructuring to re-align its external facade to fuel the planned development and growth. In today’s fast moving corporate environment, corporate restructuring happens to be the most ideal tool to win an advantage in this pursuit.

Business restructuring is a comprehensive process, be it financial or technological or market or organisational. Business can be re-arranged by way of mergers, demergers, disinvestments, takeovers, strategic alliance or slump sale.

This article focusses on implications of GST on slump sale.

Concept of Slump Sale

The concept of slump sale comes from the Income Tax Act, 1961. The IT Act, in section 2(42C) defines “slump sale” as – “slump sale” means the transfer of one or more undertakings as a result of the sale for a lump sum consideration without values being assigned to the individual assets and liabilities in such sales.” Further as per explanation 1 to section 2(19AA), “undertaking” shall include any part of an undertaking or a business activity taken as whole, but does not include individual assets or liabilities or any combination thereof not constituting a business activity.

Therefore, slump sale contains the following conditions:

Sale of one or more undertaking,
No individual value should be assigned to assets and liabilities, and the same to be sold for a lump sum consideration, and
All assets and liabilities of the undertaking must be transferred.

Transfer of all assets and liabilities

One of the major precondition of a slump sale transaction is that all assets and liabilities of the business undertaking must be transferred to the buyer.

As per Section 50B of IT Act, the cost of acquisition of such sale shall be the net worth (book value of assets and liabilities) of the undertaking.

Explanation 1 provides the method of computing the net worth of an undertaking or a division sold on slump sale basis. As per Explanation 1 “For the purposes of this section, “net worth” shall be the aggregate value of total assets of the undertaking or division as reduced by the value of liabilities of such undertaking or division as appearing in its books of account.” This definition is no different from the meaning of the expression ‘net worth’, as is commonly understood in the accounting parlance.

There are various judicial pronouncements where there is difference of opinion that it is not essential to transfer all assets and liabilities for a transaction to qualify for a slump sale. That is to say, that even if some assets are retained by the transferor and the undertaking after such transfer carries out its business activities without any obstruction, it shall still qualify to be a slump sale. The same has been substantiated by Bombay High Court[1] in its ruling.

Since all assets and liabilities are to be transferred in a slump sale, it is important for one to understand the concept of going concern which is discussed at length below.

Going Concern Concept

The terminology “going concern” is not precisely mentioned in the definition of slump sale. Transfer as a going concern means transfer of a business or a unit which is capable of being carried on by a purchaser as an independent business. To constitute a slump sale, it is not necessary that the business is ongoing at the time of its transfer.

Going Concern is a fundamental accounting assumption and Accounting Standard 1, Disclosure of Accounting Policies defines it as follows:

“The enterprise is normally viewed as a going concern, that is, as continuing in operation for the foreseeable future. It is assumed that the enterprise has neither the intention nor the necessity of liquidation or of curtailing materially the scale of the operations.”

To constitute a slump sale all the assets and liabilities of the undertaking are to be transferred. Therefore it can be said that companies whose operations are shut and is into liquidation may also opt for slump sale provided the conditions mentioned above are met. The intention of such condition is to ensure that the business will continue in the new hands with regularity and a nature of permanency.\

Further it is not necessary that the entity should be a profit making company. The only valid point to be considered for a transfer to constitute as a “going concern” to mean if it constitutes a business activity capable of being run independently for a foreseeable future. Such views were taken In the Matter of M/S. Indo Rama Textiles Ltd[2]

The term “going concern” has no place in the GST Act. However one can refer to the pronouncement of the Advance Authority Ruling in case of Rajashri Foods Pvt Ltd for the same as mentioned below:\

A going concern is a concept of accounting and applies to the business of the company as a whole. Transfer of a going concern means transfer of a running business which is capable of being carried on by the purchaser as an independent business. Such transfer of business as a whole will comprise comprehensive transfer of immovable property, goods and transfer of unexecuted orders, employees, goodwill etc.

The transfer of business assets implies where the part of assets are transferred and not the whole business, i.e. the liabilities remain in the books of the transferor, whereas in transfer of business all assets and liabilities are transferred together. The concept of transfer of going concern comes handy when the business as a whole is transferred, however case laws and analysis do suggest the likelihood of transfer of assets as a going concern.

Slump sale: supply of good or supply of service under GST Act?

To understand the applicability of GST on a slump sale transaction, it is imperative to throw light on the word “supply” under the GST Act. It is explicitly discussed that for GST to be levied, there must be a case of “supply”. Therefore, we shall now refer the scope of supply as mentioned in Section 7 of the (Central Goods and Services Tax Act 2017 (CGST Act) which is as follows:

“(1) For the purposes of this Act, the expression “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;”

Supply includes activities such as sale, transfer, barter etc for a consideration in the course or furtherance of business. From this we can infer that the activities shall take place in the course or furtherance of business. Coming to slump sale, the transaction is neither during the course of business nor in persistence of business. However since the word “includes” has been used in the definition in Section 7 (1) of the CGST Act, the scope of supply goes beyond the course or furtherance of business. Therefore the transfer as a going concern shall also be treated as “supply” under GST.

As slump sale is considered to be a supply under GST, we should now understand if the same constitutes to be goods or services.

The term goods has been defined under section 2(52) of the CGST Act 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;”

Further definition of “Service” as per section 2(102) of the CGST Act defines the term service as:

“(102)“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.”

Clause 4(c) of Schedule II of CGST Act states that

“(c) where any person ceases to be a taxable person, any goods forming part of the assets of any business carried on by him shall be deemed to be supplied by him in the course or furtherance of his business immediately before he ceases to be a taxable person, unless—

(i) the business is transferred as a going concern to another person; or

(ii) the business is carried on by a personal representative who is deemed to be a taxable person.”

Schedule II of the CGST Act talks about activities to be treated as a supply of good or supply of service wherein Clause 4, transfer of business assets has been considered as supply of goods. In Clause 4(c ) transfer of business as a going concern does not constitute as supply of goods.

As per the definition of services, anything other than goods is called a service. Business transferred as a going concern is excluded from the list of supply of goods. Since the schedule specifically excludes this activity, it becomes very obvious that transfer of business as a going concern is considered to be a supply of service.

Ministry of Finance vide its notification[3] no 12/2017- Central Tax (Rate) dated 28th June 2017, came out with a list of supply of services and further brought clarity on “service by way of transfer of a going concern, as a whole or an independent part thereof” in serial no 2 of the said notification to constitute under supply of service. Further, activity of transfer of a going concern shall have “nil” rate of tax on such supply.

Since the notification talks about the activity of transfer of a going concern as a supply of service and the same is exempt from the purview of GST. Similarly Schedule II of the CSGT Act excludes transfer of business as a going concern as supply of goods, the same shall be considered as a supply of service and GST shall be levied.

It shall be inferred that transfer of a going concern as a whole or a part there or transfer of business as a going concern is tax-exempt under GST and transfer of business assets will have GST implications.

The above can be further justified by referring to the judgement passed by the Tax Authority of Advance Ruling in Karnataka in the case of Rajashri Foods Pvt Ltd[4] where it was decided that subject to the condition that the unit being transferred is a going concern, it will be considered as a supply of service and the same shall be exempt from the payment of GST to the extent leviable under sub section (1) of Section (9) of the CGST Act, 2017.

Itemisation of assets for levy of GST

In a slump sale, assets proposed to be transferred consist of both movable and immovable property i.e. land, building, stock, plant and machinery etc. Since these assets and liabilities are sold together for a lump sum consideration it does not tantamount to a “mixed supply” under GST.

Let us first understand the concept of mixed supply under GST

Section 2(74) of the CGST Act defines mixed supply as under:

“(74) “mixed supply” means two or more individual supplies of goods or services, or any combination thereof, made in conjunction with each other by a taxable person for a single price where such supply does not constitute a composite supply.”

To constitute a mixed supply, there has to be two or more supplies of goods or services and they have be in conjunction with each other. Therefore if the item in the bundle are neither goods nor services, it will not be considered a mixed supply under GST.

Let us understand the same with the help of an example. Suppose the assets being transferred to the buyer are plant & machinery, land and stock for a single price. Here there are more than one good transferred in the transaction. The bundle is not exclusively that of goods or services or both. The same will not qualify to be a mixed supply as land being transferred is excluded from the purview of GST (As per Schedule III of the GST Act which enumerates items which are neither supply of good nor supply of services).

Referring to the above example we may say that all legs of the definition should be satisfied for it to become a mixed supply. Merely because multiple items are sold for a single price should not, by the very fact render them as “mixed supply”. In so far as movable assets being concerned, it would be treated as supply of goods and is likely to attract GST.

Conclusion

Slump sale may be of an on-going business/unit or transfer of a stalled business/unit where the intent of the transferee is to run the entity. It can be said that that when there is a transfer of business and not of that of assets, in order to insulate from GST, it would require evaluation whether transfer is as a going concern or not.

The transaction of transfer of business as a whole of one of the units in the nature of going concern amounts to supply of service. The notification holds good, but subject to the condition that the unit is a going concern and therefore the same shall be free from the GST purview.

To summarise the above discussed concept

Transfer of business assets: Supply of goods
Transfer of business: Supply of Service
Transfer of business/ or a part thereof as a going concern : Supply of service and exempt via notification

Revival of companies will definitely be more cost effective than setting up a new structure altogether. Also this will give a push to the investors to take over such companies and create more job opportunities in India.

[1] https://indiankanoon.org/doc/1182478/

[2] https://indiankanoon.org/doc/135651533/

[3]http://www.cbic.gov.in/resources//htdocscbec/gst/Notification12CGST.pdf;jsessionid=D5B61ED295EAEE2B9E0361CAE1525D0F

[4] http://gst.kar.nic.in/Documents/General/06_RAJASHREE_LIMITED.pdf

PENAL INTEREST WITHIN THE SCOPE OF GST OR NOT?

December 7, 2018/0 Comments/in Good & Service Tax (GST) /by Vinod Kothari Consultants

By Beni Agarwal (beni@vinodkothari.com)

Introduction

A recent advance ruling has thrown the financial industry off its balance. The pre-ruling opinion amongst the industry members has been refuted and yet another item has been brought within the ambit of GST, that is, penal interest or overdue interest. Before the aforesaid advance ruling, which we have discussed at length later on, there were various views circulating in the market. Some said penal interest should be charged to GST, while others said that it is nothing but interest for using the amount for the extended period of time.

However, all these speculations have been put to rest, first, by a set of frequently asked questions on GST on financial services, and second, by the aforesaid advance ruling. In this write-up we intend to discuss the outcome of the advance ruling and comment on how justified the decision is.

Background

After the imposition of GST since 1^st July, 2017, various supplies have been brought within the ambit of GST. There are some supplies which have been exempted from GST levy vide notification no 12/2017- Central tax (Rate) dated 28.06.2017, by way of powers vested with the Central Government through section 11 of CGST Act 2017. One such supply that is exempted is services by way of extending deposits, loans or advances, in so far as the consideration is exempt by way of interest or discount. Based on the exemption and its interpretation that such penal interest is nothing but additional interest, the view was that penal interest too shall not be subject to GST. However, the FAQs on Banking Sector[1], issued by GST Council, clarified that additional interest charged on delay or default in payment of installment by the customer shall be included in the taxable value of supply. The recent advance ruling in the case of Bajaj Finance Limited, [2]would give additional weightage to the FAQs.

Earlier Stance

In case of a loan transaction, it was argued that the overdue interest was merely a stepped-up interest, for the period for which the contractual terms of the loan had been in breach. Overdue interest is, admittedly, nothing but interest, albeit at a higher rate. It could not be argued that a delayed payment for a loan led to any service. Typically, interest is based on the tenure for which the loan is due/overdue. If there is an element which is charged disregarding the tenure, that is, on absolute basis, it may, then, not qualify to be interest, and hence, become chargeable to GST.

Advance Ruling by the Adjudicating Authority

In case of Bajaj Finance Limited, an advance ruling has been passed on 6/08/2018 on imposition of GST on penal interest.

In the said case, BFL gave loan to customers for a specific period repayable in EMIS including principal and interest amount. Failure to pay within the due date attracts penalty charges based on a certain percentage. In the process, BFL agreed to tolerate the act of delayed payment in lieu of penalty.

The following questions were asked and answered:

Q1. Whether the penal interest is to be treated as interest for the purpose of exemption under Sr 27 of Notification no 12/2017- Central tax ( Rate) dated 28.06.2017, Sr no 27 of Maharashtra State Notification No 12/2017- State Tax ( Rate) dated 29.06.2017, and Sr no 28 of Notification No 9/2017 Integrated Tax (Rate) dated 28.06.2017?

Answered in the negative.

Q2. If the answer to the above is negative, whether the activity of collecting penal interest by BFL would amount to a taxable supply under the GST?

Answered in the affirmative. The said activity squarely falls under clause 5(e) of the Schedule II of GST Act, 2018 and therefore such amounts received, would attract tax liabilities under GST.

Hence, basis the above mentioned advance ruling, interest on penal charges shall be liable to GST.

Treatment of Penal Interest under Service Tax Regime

Interest on loans were outside the scope of Service Tax in the pre GST period. Lending as a service was first time brought within the ambit of Service Tax on 10.09.2004 , by an amendment in the definition of banking and other financial services’ under section 65(12) of Finance Act, 1994. At the same time, with effect from 10.09.2004, by virtue of clause (viii) of

Explanation 1 under section 67 of Finance Act, 1994 , the following was added:

“SECTION 67. Valuation of Taxable Services for charging service tax: For the purposes of this chapter, the value of taxable services shall be the gross amount charged by the service provider for such service rendered by him.

Explanation 1. For the removal of doubts, it is hereby declared that the value of taxable service, as the case maybe includes …

But does not include ...

(viii) interest on loans.”

Thus, from 10.9.2004, interest on loan was out of the purview of Service Tax under section 67.

However, from 19.04.2006, the valuation provisions contained in Finance Act was shifted to Service Tax ( Determination of Value) Rules , 2006, which provided the following:

“6. Cases in which commission, costs, etc will be included or excluded-

Subject to the provisions of Section 67, the value of taxable services shall include-
Subject to the provisions contained in sub rule(1), the value of any taxable services, as the case may be, does not include–

(iv) interest on loan”

Hence from 19.04.2006, interest on loans was excluded from value of taxable services by way of Service Tax (Determination of Value) Rules, 2006.

Further, from 1.07.2012 to 30.06.2017, interest on loan was exempted under Negative List clause(n) of Section 66D of Finance Act, 1994. The same read as under:

“SECTION 66D. Negative List of Services: The negative list shall comprise of the following services, namely-

(n) services by way of-

(i) extending deposits, loans or advance in so far as the consideration is represented by way of interest or discount”

Thus, throughout the period before GST, interest on loan was excluded from levy of tax by way of provisions as stated above.

Rationale behind the current Ruling

Imposition of GST on penalty by the name of penal charges, penal interest or penalty is backed by the following arguments:-

Schedule II, entry 5 of CGST Act, includes services in the scope of supply as “agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act “. Thus, it is contended that there is a service of tolerating an act because there is toleration of the act of default or situation of default of the loanee or borrower by the Lender in exchange for default charges named as penal interest. The nomenclature does not alter the substance of the transaction. Penal charges are charges on over-due amount. Thus, penal charges falls within the scope of supply under the CGST Act, Section 7.
EMI calculation is done based on the amount of loan and the total tenure of loan. Interest is calculated keeping in mind the total life of the loan over which the principal shall be outstanding as reduced by the installments paid. Delay or default in payment of EMI is not factored in. The contention that it is separately charged and hence it is in the nature of interest, is invalid. This is because, the percentage of charge is on a per month basis of default. It does not encompass the entire life of the loan. It arises only when there is a default or delay and it is calculated for that period of delay. This is obviously not factored in as there is no encouraging effect of the erring activity on the part of the borrower. Hence, it is not an additional interest. Moreover, these are in the form of compensation charged for tolerating the act of default or delay and not in the nature of interest capturing the time value of money.
Default charges are defined within a specified range, say 2 % to 5 % and varies from customer to customer. Moreover, a specified percentage is generally set beyond which the charges will not go. This is not the characteristic of interest.

Critical Analysis of the Ruling

The ruling has caused a jolt to the financial industry. There are several contentions that seem impractical and not carefully thought of. First of all, to state that penal charge is a compensation to tolerate an act is not completely justified. Penal interest is deterrent in nature as the lender is deterring or discouraging the borrower from delaying the payment by imposing a penalty. It is in the nature of additional interest on overdue amount. Interest charged is exempt from GST ambit which implies that it is not considered as supply to tolerate an act. If that is the case, then how can additional interest be considered as something to tolerate an act of delay or over-due. Its nature is similar to interest and interest is considered as a rate for incorporating time value of money and not classified as an act to tolerate the period in which the lender was devoid of that money.

Further, it is a top up on the rate of interest that is charged on the loan amount. Interest rate is the amount of money charged by the lender for usage of money which is calculated keeping in mind the time value of money. Penal interest is an add-on to the normal interest rate. If interest is considered as time value of money, then how can additional interest be considered any different? Penal interest is the interest rate charged on the over-due amount which is just a notch up on the existing rate.

To contend that the penal interest charged deviates from the nature of interest, because it is varying in nature, is a little funny. This implies that specifying a range of top up like 2% to 4% as against a fixed 10 % is grave enough to challenge the nature of interest. To state that the rate of penalty charged is varying from customer to customer and hence drifts away from the nature of interest is quite strange. The selection of rate of interest and charging them on customer basis should not be a point to declare that penal interest digresses from basic interest. There are a set of factors that determine the rate of interest to be charged from different customers.

Also, it is very important to note that charging GST in a sector that is already under the brunt of Non-Performing Assets (NPAs) is quite damaging to the banking and financial sector. We are talking of a sector where default or NPAs is a norm. The sector is already burdened with NPA and the problem is aggravated further by imposition of GST. Penal charges are collected by banks and it is their liability to pay to the Government. Whether or not they can shift the burden to the customers is a matter left on the banks. We are speaking about the customers who have made the delay or default and hence they are not the ones with best payment ability or willingness. Indeed it is very much possible that the ultimate burden may not be shifted to the customers and stay with the banks only. This burden of GST in addition to NPAs is definitely not a welcome change for banks and banking sector.

Argument for the earlier view taken

By way of notification no 12/2017- Central tax ( Rate) dated 28.06.2017, under serial no 27, services by way of extending deposits, loans or advances, in so far as the consideration is exempt by way of interest or discount( other than interest in connection with credit card services) have been excluded from the levy of GST.

Further clause (zk) of para 2 of the said notification defines interest as “interest payable in any manner in respect of monies borrowed or debt incurred (including a deposit, claim or other similar right or obligation) but does not include any service fee or other charge in respect of the monies borrowed or debt incurred or in respect of any credit facility which has not been utilized.”

Penal Interest are meant to include overdue charges on non-payment of installment on the due date. This was meant for compensating the lender for the time value lost for the extended use of loan proceeds. EMI amount factors in the interest portion for the tenure of the loan, but these additional charges are over and above the interest factored in.

Section 7 (1)(d) of CGST Act refers to Schedule II to include services that shall be considered supply. Entry 5 of Schedule II, includes the following as supply “agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act “.

It was argued that the expression to tolerate an act cannot be said to include situation wherein penal charges are imposed on the erring party for delayed or non-payment. This is because, this is not the intention at the very inception, to undertake the activity of default or delay with no hindrance from the other party. The clause of penalty is created with a deterrent effect so that the activity is not repeated by the erring party.

Furthermore, the international laws like Australian Law does not impose GST on penal interest.

Potential impact of the Ruling on the Financial Industry

Penal Interest shall be subject to GST as per the recent AAR ruling, as it is not ruled to be in the nature of additional interest, but it is classified as supply under GST. The AAR ruling has adopted a position which is contrary to the historical approach adopted by financial services industry.

– Increase the working capital burden of Financial Institutions: The output GST liability shall block the working capital thereby increasing the working capital requirements. 18% GST on penal interest amount shall be required to be paid to the government by the banks. The output GST shall be recorded in the books as a liability payable. This liability did not arise till now and hence there was no additional burden on the working capital of financial institutions. But with the new ruling, financial institutions will face a working capital crunch.

– Pinch on the customers’ pocket: The amount of interest on loans or deposits or advances did not attract service tax during pre GST era and does not attract tax during the current GST tax regime as well. However, the penal interest is not in the nature of interest and hence shall be chargeable to GST. The banks may transfer the GST payable on penal charges to customers. This will pinch the pocket of the customers.

– Increased litigation: The ruling has gone against the long standing opinion in the financial industry and it is not going to be accepted without any further appeals. This may give rise to potential dispute and may register appeals in higher platforms. Also as these rulings serve as precedents for other cases, it will give rise to several related litigations in the process.

Conclusion

Putting an end to the industry-wide confusion , AAR has ruled, based on the provision in Schedule II, entry 5 of CGST Act 2017, that penal charges shall be considered a supply under GST and hence be a part of value of taxable supplies. According to the ruling, imposition of penal charges indicate a clear understanding between the parties that in case of delay in payment of the agreed upon amount, a penal charge shall be imposed which will be payable by the person in default as consideration for act of tolerance done by the lender. The consideration is clearly in monetary terms. Penalty by whatever name called, be it penal charges or penal interest or additional interest shall be subject to GST as a taxable supply. The ruling does not appear to be practical as it defies the very basic concept of time value of money.

Moreover, it might turn out to be an impediment for the banks and other financial institutions in the NPA-laden finance industry, due to the added disadvantage of GST on penalty. Given the current situation in the country, in most of the cases, it is the banks or the lenders who will have to take the hit. In case of distressed loans, where recovery of principal itself is questionable, expecting the borrower to cough up another 18% on the penal interest is highly irrational.

In all likelihood, this might call for further appeals in the higher forums, as the decision most likely, shall not go down well amongst the industry players.