Taxability of corporate guarantee by group companies

Taxability Of Personal and Corporate Guarantee Under GST

A corporate guarantee is a contract between a corporate entity or individual and a debtor. In this contract, the guarantor agrees to take responsibility for the debtor's obligations, such as repaying a debt.

Recent clarification issued by Central Board of Indirect Tax & Customs (CBIC) with respect to taxability of personal and corporate guarantee provided to a Company under Goods and Services Tax (GST) law. In a recent circular, following clarifications have been provided: 204/16/2023-GST on 27th October, 2023.

Taxability of personal guarantee by directors:

Directors / promoters / employees and the Company are 'related persons' as per the explanation to Section 15 of the Central Goods and Services Tax Act, 2017 (CGST Act).

The circular clarifies that personal guarantees offered by promoters, directors, managerial staff, etc. of borrowing company would be treated as taxable supplies, even if made without consideration, and is in the course or furtherance of business.

In case personal guarantee is provided without any consideration, the value of taxable supply would be determined under  . Circular No. RBI/2021-22/121 dated 9 November 2021 issued by The Reserve Bank of India, prohibits earning of income from such guarantees. 

Therefore, the circular clarifies that the taxable value for such provision of personal guarantee provided by under Rule 28 of the CGST Rules would also be zero. Hence, no GST would be payable on such supplies.

In cases where specific consideration / remuneration is provided for such guarantee, GST would apply on such consideration.

Taxability of corporate guarantee by group companies

Any transaction between related / group / holding and subsidiary companies is treated as provision of taxable supply in accordance with Section 7 read with Schedule I of CGST Act, even if it is made without any consideration and is made in the course or furtherance of business.

It is clarified that where the corporate guarantee is provided by a related / group / holding company for a borrowing company to the bank / financial institutions for securing credit facilities for its group / subsidiary company, it is regarded as taxable supply under GST even when made without any consideration.

As per Notification No. 52/2023-CT dated 26 October 2023, the value of services provided by a supplier to a related person, involving the provision of a corporate guarantee to a banking company or financial institution on his behalf, is deemed to be 1% (one percent) of the guaranteed amount offered, or the actual consideration, whichever is higher.

Comment

The deemed value of a corporate guarantee offered to any banking company or financial institution on behalf of a 'related person' is established at a rate of 1%. However, no specific valuation criteria have been outlined for cases where such a corporate guarantee is extended to government entities or individuals.

Valuation of corporate guarantees for transfer pricing purposes under Income Tax laws has been a contentious issue. The Bombay High Court, in the cases of Everest Kento Cylinders Ltd and Manugraph India Ltd has ruled that a Corporate Guarantee fee of 0.50% can be considered to be at arm's length. Conversely, the Madras High Court in the case of Redington (India) Ltd, has determined that a Corporate Guarantee fee of 0.85% to be at arm's length. However, Rule 10TD of the Indian Income-tax Rules, 1962, sets the safe harbour rate for this fee at 1% of the guaranteed amount.

The circular does not make any reference to Rule 10TD of the Income-tax Rules, 1962. As a result, the valuation of Corporate Guarantees extended to government entities or private individuals may be subject to the discretion of the involved parties. Furthermore, the taxability of such Corporate Guarantees prior to 26 October 2023, remains uncertain in the absence of a defined valuation mechanism. Notably, there have been recent instances where various field formations have issued notices demanding GST on corporate and personal guarantees.

In addition, the circular also does not throw any light on the manner of valuation from GST perspective in case of continuing guarantee or where the guaranteed amount is not fixed.

Time of Supply of Goods

TIME OF SUPPLY OF GOODS

The time of supply for goods can be classified into three broad categories.

o Time of Supply for Goods – Forward Charge

o Time of Supply for Goods – Reverse Charge

o Time of Supply for Goods – Miscellaneous Provisions

(i) Default Rule:

The time of supply of goods section 12 of the CGST act 2017, shall be the earlier of the following dates:

(a) The date of issuing of invoice (or) the last day by which invoice should have been issued, OR

(b) The date of receipt of payment.

Note-1: The date of receipt of payment shall be earlier of- (a) The date on which payment is entered in the books of accounts; OR (b) The date on which the payment is credited to bank account.

Note-2: Last date by which invoice should have been issued is the “date of removal of goods”.

(ii) Time of supply of goods when the supplier is under composition scheme:

• In such cases, time of supply of goods is the date of invoice. Time of supply of goods will be the same in case the turnover is up to 1.5 Crore even though the supplier did not opt for composition scheme.

• In other cases, where supply involves movement of goods, time of supply is the date of invoice issued at the time of removal of goods.

• In all other cases, time of supply is the date of delivery of goods.

(iii) Time of supply of goods in respect of the excess amount (up-to Rs.1000) received over the amount mentioned in invoice:

Time of supply in respect of such excess amount received will be the “date of issue of invoice” or the “date of receipt of payment”, as preferred by the supplier.

(iv) Time of supply in case of continuous supply of goods:

In case of continuous supply of goods, time of supply is the “time when each statement is issued”, or the “time when each payment is received”, whichever is earlier.

(v) Time of supply of goods sent on approval basis:

Under the current GST regime, goods sent on approval basis is treated as deemed supply and accordingly it is taxable if the recipient fails to return the goods within a stipulated time period say six months. So, to fix the tax liability, it has become important to know the time of supply of goods in such cases.

Time of supply of goods sent on approval basis is the “time when it becomes known that supply is taken place”, or the “Six month from the date of removal of goods”, whichever is earlier.

(vi) Time of supply of goods under RCM:

Time of supply of goods taxable under reverse charge basis is the earlier of the following three dates:

(a) Date of receipt of goods, OR

(b) Date of receipt of payment, OR

(c) Date Immediately following 30 days from the date of issue of invoice.

Note: If time of supply cannot be determined with the help of above provisions, then the time of supply shall be the date on which entry in the books of the recipient of goods is made.

(vii). Time of Supply in case of Vouchers

Situation Time of Supply

If the supply is identifiable at the point at which voucher is

identified Date of issuance of the voucher

In all other cases i.e the supply is not identifiable at the point

at which voucher is identified Date of redemption of voucher

(viii). Residuary Provision

In case it is not possible to determine the time of supply under aforesaid provisions, the time of supply is:

Due date of filing of return, in case where periodical return has to be filed Date of payment of tax in all other cases.

(ix). Time of supply in relation to an addition in the value of supply by way of interest, late fees, or penalty

Time of supply related to an addition in the value of supply by way of interest, late fee, or penalty for delayed payment of any consideration shall be the date on which supplier receives such addition in value.

For example, a supplier receives consideration in the month of September instead of due date of July and for such delay he is eligible to receive an interest amount of Rs. 1000/- and the said amount is received on 15.12.22. The time of supply of such amount (Rs. 1000/-) will be 15.12.22 i.e. the date on which it is received by the supplier and tax liability on this is to be discharged by 20.01.23.