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Rule 28(2) ultra-vires the Act but who cares!

Madhusudan Mishra
Critique of GST Act Rule 28(2): Misinterpretation of Loans, Service Transfer Myths, and Invalid Valuation Rules. The article critiques Rule 28(2) of the Goods and Services Tax (GST) Act, arguing it is ultra vires. It discusses the misconception that securing a loan is inherently beneficial, highlighting the associated risks. It emphasizes that services cannot be transferred or stored, and adjustments without contractual privity do not constitute services. Guarantees are conditions, not considerations, and the article questions what constitutes a supply to the Principal Debtor (PD) in such arrangements. It argues that valuation rules without actual supply are invalid, challenging the logic behind certain corporate social responsibilities and donations. (AI Summary)

Getting a loan basis guarantee doesn't accrue 'benefit' but rather 'risk'. Risk of Indemnification underlying principle of subrogation affirmed by 145 of ICA. Thinking mere securing a loan beneficial is an untrained mind. Loan can be disastrous, Kingfisher is a benchmark. Contingency of future profit 'coming into existence' is not supply as excise is no more.

Service cannot be transferred as it cannot be stored and one cannot consume a service on behalf of the other. It can only be received AND consumed by the same person. Anything other than goods can never include accounting adjustment, neither financial nor managerial i.e. cross-charge is not an exception. An adjustment requires contractual privity 'between' distinct persons to become service and supply. Self-serving adjustments do not constitute any service.

Guarantee is just a 'condition' subject to loan and a 'condition' is not consideration. This activity is 'for' PD not 'to' PD. Then what is 'to' PD - nothing!

'There is no free lunch'! - then what is CSR above 2%? Corporate Donations? Pro Bono Work? Community Service? Public Infrastructure Development?

The drafting of the rule itself depicts that the guarantee is 'on behalf of' and not 'to' the PD. Then what is 'between' them? PD receives loan from bank, what from Surety?

Valuation comes into picture when there is a supply and levy. Any rule prescribing value in the absence of supply is ultra-vires.

Goods and Services Tax - GST
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