Snehal Kanzarkar and Sara Jain, both 5th year law students at MNLU Mumbai, have examined the extent of coverage of e-commerce transactions under the Income-tax and GST and explained the various advantages and disadvantages of the respective legislation. The authors have also offered valuable suggestions on how the present law and practices can be made to be in consonance with the prevailing international standards so as to achieve better compliance and and prevent tax evasion, especially by non-resident enterprises
1. Domestic Taxation
1.1. The digitalization of every aspect of life has led to an exponential growth of e-commerce transactions in the recent years, which necessitates the need to regulate and tax these transactions. This paper discusses the taxation of e-commerce transactions under the GST Act,2017 and the Income-tax Act, 1961. It is divided in two parts. The first part deals with the taxation of e-commerce transactions within the country i.e. domestic taxation and the second part deals with the taxation of international e-commerce transactions i.e. international taxation. The domestic aspects of taxation are discussed here in reference to the GST Act, 2017. This part is sub-divided in various sections, which elaborate on the challenges in taxation of the e-commerce under the earlier indirect tax regime [i] and the need for the GST Act and its advantages over the earlier regime. [ii] Further, it explains the taxation of e-commerce taxation in two parts i.e. taxation of the e-commerce operators under the CGST Act, IGST Act and the SGST Act [iii] the taxation of intermediaries under IGST Act [iv].
A. Challenges in taxation of the E-commerce under the earlier indirect tax regime
1.2. With digitization of every aspect of life, the economy is no exception. The phrases like “borderless world” and “modern technology defies geography” have become reality in digital economy. The e-commerce industry has expanded tremendously over the years. The size of the e-commerce industry in India is estimated to be approximately $40.3 Billion. [UNIDO, Inclusive and Sustainable Industry Development Working Paper Series WP 15, National Report on Development of E-commerce Development in India, 2017] Thus, the regulation and taxation of the electronic-retail businesses and other e-commerce transactions have gained momentum over the years. E-commerce includes the supply of goods, services or both, including digital services, over digital or electronic network. [Section 2 (14), Central Goods and Services Act, 2017]
1.3. Earlier, the e-commerce was taxed under various legislations in India. This caused multiplicity of problems for the taxation of the transactions, which included multiplicity of legislations leading to double taxation and cascading effect in taxation of e-commerce entities, different tax liability and compliance mechanisms for the manufacture, sale and supply in different states, lack of clarity about the taxation of the services provided by e-commerce operators and the intangible goods. [ Institute of Chartered Accountants of India (ICAI), Study Paper on Taxation of e-commerce under GST (2017)] In light of these issues, the government envisioned “One Nation One Tax” and consolidated around 17 indirect tax legislations into a single legislation i.e. the GST Act, 2017.
B. GST: A ray of hope for the challenges of e-commerce taxation
1.4. The GST regime brought uniformity in the taxation of e-commerce transactions. It reduced the cascading effect of taxes and reduced the overall rate of taxation. E-commerce transactions are defined as the transactions which involve the supply of goods and services through an online platform. [Section 2(14), Central Goods and Services Tax Act, 2017] There are various bodies that can supply such goods and services. In accordance with the provisions of the CGST Act, 2017, SGST Act, 2017 and the IGST Act, 2017 there are two ways of taxing the suppliers of such goods and services- taxation of e-commerce operators [i] and taxation of intermediaries [ii]. These aspects are discussed in detail in the following sections.
C. Taxation of E-Commerce Operators
1.5. Section 2 (43B) of CGST Act, 2017 defines e-commerce operator is a person who, directly or indirectly, owns operates an electronic platform (virtual/digital), which is engaged in the supply of any goods and/or services. Indian law is based on the inventory model. This implies that the supply of goods and services by a person on his/her own accord will not qualify them as e-commerce operator, but merely acting as a platform for supply of goods and services between two persons will make him/her the e-commerce operator. The E-commerce operators and persons supplying goods and services through the e-commerce platform are mandated to obtain registration in each state where they trade. [Section 24, CGST Act, 2017] However, an exception has been created for the persons supplying goods and services through the e-commerce platform on the basis of their aggregate value of the supplies made by them i.e. if the aggregate value of such supplies made is less than Rs. 20 lakhs in states and less than 10 lakhs in “special states” they are not bound to get registered. [CGST Notification no. 65/ 2017- Central Tax, dated November 15, 2017, Ministry of Finance (Department of Revenue, Central Board of Excise and Customs)]
1.6. The taxation of e-commerce transaction under the GST regime is based on the place of supply because GST is a destination-based tax. The correct determination of the place of supply is crucial because an error in this can lead to payment of taxes to the wrong state. For example, if the place of supply is Bangalore, Karnataka and the place of recipient is Nagpur, Maharashtra, IGST and CGST will be applicable since it is an inter-state supply. But, if the place of supply and place of recipient is both Bangalore, Karnataka CGST and SGST will be applicable. The separate grounds for taxation on the basis of place of taxation are taxation of intra-state supply [i] and taxation of inter-state supply [ii].
i Taxation of intra-state transactions
1.7. Section 9 of IGST Act, 2017 defines intra-state supply as the supply of goods or services or both in such a manner that the place of supply and recipient of supply are in the same state or the same union territory. Central Goods Services Tax and State Goods Services Tax are applicable for an intra-state supply. [Section 8, IGST Act, 2017]
1.8 The taxation of supplied made through the e-commerce platform is difficult on the basis of a destination-based tax. This is because of the fact that the supply is made through a virtual platform, which makes it difficult to keep track of the transactions and affix the liability on the beneficiary of the supply. Thus, the tax is collected at the source. The E-commerce operator has to collect tax at the rate of 1% (0.5% CGST and 0.5% SGST) of the net value of the taxable supplies, supplied through its platform. [Notification No. 52/2018, dated 20th September, 2018] This tax is called tax collected at source (TCS) and is applicable on the supplies only if the value of the supply is above 2.5 lakhs. The amount collected by the e-commerce operator has to be paid to the government by the 10th day of the next month and the return of the same has to be filed in GSTR-8 form. The failure to pay GST is punishable with a penalty of Rs.100 per day for CGST and Rs. 100 per day for SGST and the maximum penalty is Rs. 5000.
ii. Taxation of inter-state transactions
1.9 These separate categories are created on the basis of place of supply. According to section 8 of IGST Act, 2017 the supply of goods and services through the electronic platform between two states, two union territories, a union territory and a state will constitute inter-state supply. The inter-state supply by an e-commerce operator is regulated by section 13 of the Integrated Goods and Services Tax Act, 2017. This section is vital in determining the nature of the transaction, because that in turn will help in deciding whether it is inter-state tax or intra-state tax. The only tax applicable to the inter-state transactions is the Integrated Goods and Services Tax. IGST is also applicable on the e-commerce inter-state transactions for the import of goods and for the transfer of online information and database access or retrieval services.
D. Taxation of intermediaries
1.10 Intermediaries, as defined under section 2 (13) of the IGST Act, 2017,includes the brokers, commissioning agent or any other person, who provides platform for the supply of goods or services or securities between two people but do not initiate the transaction on their own accord. If the place receipt is outside the territory of India, the place of supply provided by the intermediaries for the place of supply is considered to be the location of supplier i.e. India. If the services location of the recipient is within the territory of India, the place of supply will be the location of the recipient. [Section 13, IGST Act, 2017]
1.11 The courts and tribunals have laid down certain clarifications regarding the persons liable as intermediaries. These are as follows:
1.11.1. Third Party Transactions will not amount to intermediary services: The Hon’ble Supreme Court held in the case of Commissioner v. AIA Engineering ltd [2016 (41) S.T.R. J262 (S.C.)] i.e. the purchase and subsequent sale of goods and services will not amount to an intermediary service under the GST Act. In this case, the assesse had recorded two separate transactions i.e. purchase of goods by them from WSL and the sale of goods by them to ACC. The assessing officer taxed them as intermediary service. The court gave the decision in favor of the assesse and held that these are two separate transactions of sale and purchase and this will not amount to intermediary service. This implies that only the act of providing a platform for supply of goods, services or securities will make a person liable as an intermediary under the GST Act, 2017.
1.11.2. Support and marketing services: When a person negotiates and purchases some goods and services from the principle and later sells them to the customer, it will not be considered an intermediary service because these are two separate transactions and the act of negotiation of the prices with the principle is not on the behalf of the customer. However, support services in shipping in such an act will constitute intermediary service only when the negotiation is done on behalf of the customer. Further, the marketing services provided to global universities are “intermediary” services.[In Re: Global Transportation Services Pvt. Ltd. 2016 (45) S.T.R. 574 (A.A.R.)] Lastly, the back office support services, payroll processing, maintenance of records of employees and the customers provided to the customer outside India will be considered as the intermediary services and will be considered as the intermediary services. The service provider will be made liable in capacity of an intermediary. [Vservglobal Private Limited [2018 (19) G.S.T.L. 173 (A.A.R. – GST)]]
1.11.3. Zero-rated supply and intermediary services: Earlier, the services provided to entities outside India, were considered to be export services, which implied that they will be zero-rated supply and thus, they were not taxable under the GST Act. However, there has been a change in this position. Certain services provided to the overseas clients are considered to be services taxable in India. In a recent decision the Maharashtra Advance Authority Ruling held that the act of arranging/facilitating the supply of the goods between the overseas clients and their customers in India would qualify as an intermediary service. The appellant, who was providing the services of back-office documentation, administrative support and payroll-processing to the overseas clients, was declared as an intermediary[GST- ARA, Application No. 03 dated 9 April, 2018]. The services provided by it would not be considered as export and hence zero rated supply under section 16 of the GST Act, 2017. They were considered as inter-state supply and hence taxable under IGST. [Section 7, Integrated Goods and Services Tax Act, 2017] The services were taxed as services provided by the intermediary and the location of supply i.e. India was considered as the place of supply and thus the supply was made taxable.
E. Dispute resolution mechanism
The CGST Act, 2017 has introduced the provision of seeking advance ruling under section 97. If the assessee wants a clarification regarding the classification of goods, applicability of the notification, the time and value of the supply of goods, services or both, admissibility of the input tax credit paid on the tax paid, determination of liability to pay tax or the requirement of registration of the applicant, he/she can file an application (FORM GST ARA-01) to the authority of advance ruling set-up under the SGST Act. [Section 96, 97, CGST Act, 2017, Rule 104, 105CGST Rules, 2017] Once the application is admitted, the authority for the AAR shall give its ruling within thirty days. The appeal will be binding on the assessee and the department for the given matter. [Section 98, CGST Act, 2017] However, it will not be binding on other assesses in other cases i.e. it will not be a binding precedent. The appeal filed by the assessee (FORM GST ARA-02) to the Appellate Authority of Advance Rulinghas to be filed within30 daysof the order of the AAR along with a fee of Rs. 10,000/-, while the appeal filed by the officer (FORM GST ARA-03) has to be filed within thirty days and no fees has to be submitted along with that.[Sections 49 and 98, CGST Act, 2017; Rule 106, CGST Rules, 2017] The AAAR is bound to give the decision in ninety days of the date of filing the appeal and it shall be binding on the asssesse and the revenue department. [Section 101, CGST Act, 2017]
2. International Taxation
2.1. This part discusses the aspects of taxation of the income earned by the non-residents by the means of online services and supply of goods through online platforms in India. It is discussed in reference of the provisions of Income Tax Act, 1961. It is further divided in two parts i.e. the taxation by equalization levy [i] and the taxation by the means of significant economic presence and the virtual service permanent establishment [ii].
A. Taxation of digital transactions under the Income Tax Act, 1961
2.2. The income through the online transactions can be taxed in two ways:
i. Equalization levy
ii. Significant Economic Presence and Virtual Service Permanent Establishment
i. Equalization Levy
2.3. The challenge of taxation of e-commerce transactions was dealt with and discussed at length in by the OECD as a part of Base Erosion Action Plan (Task force on Digital Economy with G-20 countries). As a result of this, a 15-point Action Plan was devised and the action plan 1 dealt with the tax challenges of digitalization (Report by Task Force on Digital Economy). This is relevant because it was greatly relied on by the committee on taxation of e-commerce, in its report titled “Equalization levy on specified transactions”. On the basis of these findings, equalization levy was proposed in the Finance Act, 2016. It introduced the concept of Equalization levy and significant economic presence.
2.4. Equalization levy was introduced as a measure to prevent the tax evasion on the online services, provided by the residents to the non-residents. It was introduced at a rate of 6% of the amount of the consideration for the specified services received or receivable by a non-resident not having a permanent establishment in India, from a resident in India who carries out business or profession, or from a non-resident having permanent establishment in India. “Online” means a facility or service or right or benefit or access that is obtained through the Internet or any other form of digital or telecommunication network. For the purpose of equalization levy, the “specified service” means online advertisement, any provision for digital advertising space or any other facility or service for the purpose of online advertisement. [Section 165, Finance Act, 2016]
2.5. In order to ensure that the levy does not affect the business of the micro, medium and small enterprise businesses, the government specified a limit of consideration on which the equalization levy won’t be applicable i.e. it won’t be applicable if the total amount of consideration does not exceed one lakh rupees. [Explanatory notes to Finance Act, 2016: Circular No.- 3/2017, para 32] This provision came into effect from June 1, 2016 [Notification No. 37 (SO 1904E)]
ii. Significant Economic Presence and Virtual Service Permanent Establishment
2.6. Even prior to the incorporation of significant economic presence the courts have relied on the similar parameters to determine the existence of permanent establishments in India. It was held by the ITAT Bangalore in the case of ITO v.Right Florists(2013) 143 ITD 445 (Kol.)(Trib.) that on the basis of the the domain name, specific website for the Indian users, the number of users, the revenue generated and the usage of the servers for the purpose of revenue generation by the companies in India, the service permanent establishment can be constituted in India. Thus, the advertising revenues of the tech giants such as Google and Yahoo would be taxed as the revenue generated by the Permanent Establishments.
2.7. In the Finance Act, 2018 the concept of Significant Economic Presence was introduced by the government to prevent the evasion of taxation by the companies, who do not have physical presence in India but, still solicit business and earn income from India. The section 9 of the Income Tax Act, 1961 was amended and explanation 2A was inserted. [Section 4, Finance Act, 2018] The conditions for significant economic presence have been included in the parameters for the constitute business connection in India. This implies that even if the non-resident companies do not have a physical presence in India, they can be taxed in India if they have significant economic presence in India. The twin conditions for significant economic presence in India are: the transactions regarding the sale-purchase or transfer of goods, services or any other tangible or intangible property if they are above the prescribed threshold [i] and the systematic and continuous solicitation of business by the NRE, which involves interaction with the customers [ii] (Section 9, Explanation 2A, Income Tax Act, 1961). The fulfillment of these conditions constitutes business connection of the Non-resident enterprise in India. The introduction of these parameters is a great step in taxation of the digital economy, but the government is yet to notify the threshold for constituting significant economic presence. It had released a public consultation paper for this in 2018 and the comments received are under consideration. [Public Consultation on the proposal for amendment of Rules for Profit Attribution to Permanent Establishment- reg, F.No. 500/33/2017-FTD.I] According to this committee report, the threshold for significant economic presence can be based either on the number of local users or the amount of local revenue generated. In terms of the number of users, the committee has advised to assign 10% weightage to the users in the companies with business models with low or medium user density and 20% weightage to the users in the companies with business models with high user density.
2.8. Recently, the ITAT Delhi rendered the landmark judgment of M/s Nokia Networks OY v. JCIT, (2018) 65 ITR (Trib.) 23 (SB) (Delhi)(Trib.)held that the foreign company did not have a permanent establishment in India and was thus, not liable to be taxed a s a permanent establishment in India. It held that if the parent company of an Indian company does not explicitly fulfill the criteria laid down for forming a permanent establishment in the Double Taxation Avoidance Agreement, it cannot be made liable because the Indian Company is a virtual projection of its parent company. [Permanent Establishments and Virtual Projection: The case of Nokia Networks, Kluwer International Tax Blog, September 3, 2018,]
2.9. Another peculiar issue in the taxation of e-commerce is the taxation of the expenditure incurred in the creation of market intangibles such as goodwill. This issue was recently discussed by the ITAT Bangalore in the case of M/s Flipkart India Private Limited v. CIT (2018) 170 ITD 751 (Bang.)(Trib.). The issue for consideration here was whether the profits foregone in the earlier years can be regarded as the expenditure incurred for the creation of market intangibles (brand value and good will) and thus, taxed accordingly? The ITAT held that this cannot be done and the loss incurred cannot be disallowed on this ground. The ITAT followed the decision of the Supreme Court in the case of CIT Vs. A. Raman & Co. (1968) 67 ITR 11 (SC) and CIT Vs. Calcutta Discount Co. Ltd., (1973) 91 ITR 8 (SC)and held that only the actual sale price of the product can be considered while computing the profits and loss of the assesse, not the cost price or the profits foregone. Unless, section 145 (3) of the Income Tax Act, 1961 has been invoked, the profits and losses have to be considered only on the basis of the profit and loss account of the assesse.
3. Advance Ruling
3.1. Prior to the payment of taxes, if the assessee wants any clarification regarding the payment, extent of the amount and applicability of the taxes/notification to the assessee, he/she can approach the Authority for Advance Ruling (AAR) under the Income Tax Act, 1961 and the CGST Act, 2017 and the respective State or Union Territory GST Acts.
3.2. Advance Ruling for the GST matters: If the assessee wants a clarification regarding the classification of goods, applicability of the notification, the time and value of the supply of goods, services or both, admissibility of the input tax credit paid on the tax paid, determination of liability to pay tax or the requirement of registration of the applicant, he/she can file an application (FORM GST ARA-01) to the Authority of Advance Ruling (AAR) set-up under the SGST Act. [Section 96, 97, CGST Act, 2017, Rule 104, 105 CGST Rules, 2017] Once the application is admitted, the authority for the AAR shall give its ruling within thirty days. The appeal will be binding on the assessee and the department for the given matter. [Section 98, CGST Act, 2017] However, it will not be binding on other assesses in other cases i.e. it will not be a binding precedent. The appeal filed by the assessee (FORM GST ARA-02) to the Appellate Authority of Advance Ruling has to be filed within 30 days of the order of the AAR along with a fee of Rs. 10,000/-, while the appeal filed by the officer (FORM GST ARA-03) has to be filed within thirty days and no fees has to be submitted along with that. [Sections 49 and 98, CGST Act, 2017; Rule 106, CGST Rules, 2017] The AAAR is bound to give the decision in ninety days of the date of filing the appeal and it shall be binding on the asssesse and the revenue department. [Section 101, CGST Act, 2017] There is no specific provision in the GST act for appealing against the decision of the AAAR. In a recent decision, the Hon’ble Bombay High Court held that the decision of the AAAR cannot be challenged on merits before the High Court under the writ jurisdiction. However, the court can look into the order, if there is a violation of principles of natural justice, the AAAR exceeded its jurisdiction or committed errors of law and ensure the compliance with the principles of natural justice. [JSW Energy Limited v. Union of India and 3 others, Writ petition no. 5 of 2019, Order dated 07 June, 2019]
3.3. Advance Ruling for income tax matters: If the assessee, who is a non-resident, wants a clarification regarding a taxability of a transaction undertaken or proposed to be undertaken, he/she can file an application to the Authority of Advance Ruling (AAR). A non-resident can file an application (Form No. 34 C) to the AAR with a fees of Rs. 2,00,000. A resident can file an application (Form No. 34 D), if he is doing a transaction with the non-resident if the value of the transaction or transactions, undertaken or proposed to be undertaken by him is Rs. 100 crores or more (Form No. 34 DA) by filing a fee of Rs. 5,00,000 (if the transaction value is between Rs. 100 crores and Rs. 300 crores) or a fee of Rs. 10,00,000 (if the transaction value is above Rs. 300 crores). The application to the AAR cannot be filed if the question is pending before an ITAT bench, High Court or Supreme Court, if the question involves the determination of the fair market value of a property or when the question relates to a transaction, prima facie for the evasion of tax. [Section 245N, Income Tax Act, 1961; Notification No. 73/2014, dated 28-11-2014]. The AAR shall give its decision within 6 months of filing of the application. The order will be binding only on the applicant to the extent of the transaction for which the ruling is sought. Further, there is no provision for filing an appeal against the ruling of the AAR. However, a writ petition can be filed against this in the respective High Court [Articles 226,227 Constitution of India, 1950]and a special leave petition can be filed against the order of the AAR [Article 136 Constitution of India, 1950] as the AAR is falls under the definition of a “tribunal” under article 227and 136 of the Constitution of India [Columbia Sportswear Company v. DIT, TS-59-SC-2012 ]
3.4. Thus, in case of a transaction where GST is applicable, an application before the AAR can be filed by any applicant, irrespective of the fact, whether he/she is a resident or a non-resident, while, in case of a transaction, where income tax is applicable, the non-resident can file an application, a resident entering into a transaction with the non-resident can file an application or a resident doing or proposing to do a transaction worth Rs. 100 crores can file an appeal. Further, an order given by the AAR under the GST Act can be appealed against at the Appellate Authority for Advance Ruling within 30 days of the order of AAR, while for the order by the AAR under the Income Tax Act cannot be appealed against. Only recourse available is to file a writ petition in High Court.
4.1. The inclusion and coverage of e-commerce transactions in the GST regime has consolidated multiple indirect taxation legislations and has reduced the double taxation and cascading effect in taxation of e-commerce entities. It is equally true that the e-commerce operators are faced with some drawbacks, such as the exclusion from claiming input tax credit, registering for composition and separately registering in each state. There are various advantages and disadvantages of the implementation of GST Act on e-commerce, but in the opinion of the researcher, the advantages outweigh the disadvantages to a great extent. The present reforms in the Income tax act, 1961 i.e. Equalization Levy and the Significant Economic Presence are great measures by the government to tax the income generated in the digital economy and to bring Indian taxation practices in consonance with the prevailing international standards. In order to prevent further tax evasion by the non-resident enterprises because of the unique nature of the digital economy, the government should set the threshold for the significant economic presence and thus, put it into effect.
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