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E-Commerce In India And Legal Challenges Faced By It Under The Indian Tax Regime

Hamzah Hussaini
8 April 2020 6:56 AM GMT
E-Commerce In India And Legal Challenges Faced By It Under The Indian Tax Regime
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India has an internet user base of about 475 million as of July 2018, about 40% of the population. Despite being the second-largest userbase in the world, only behind China (650 million, 48% of the population), the penetration of e-commerce is low compared to markets like the United States (266 million, 84%), or France (54 M, 81%), but is growing, adding around 6 million new entrants every month.

With the e-commerce industry in India rising at a booming rate, more so with the invasion of highly-sophisticated gadgets and faster-than-light internet. However, still, the e-commerce industry in India lags far behind compared to western countries. There are several challenges faced by the e-commerce industry in India comes in the way of Indian online stores and merchants. Among factors that bother India online shoppers, the safety and security of online money while transacting is the biggest concern. Apart from them are the quality of products as the online shoppers can't really touch and feel the products, they want to buy.

Internet was introduced in India in 1995 and the first wave of e‐commerce started soon thereafter. At about the same time it got start in the US in an accelerated manner. The most common users were Business‐to‐Business (B2B) users such as micro and small enterprises (MSMEs) who lacked the requisite financial resources to market their products and services to potential clients through traditional media such as newspapers and television. India's first online B2B directory was launched in 1996. Trade through B2B portals increased the visibility of MSMEs in the market place and helped them overcome the barriers of time, communication and geography. According to an estimate, B2B are reaching the level of $100 billion per annum. The scope of B2B transactions has also broadened over the years, which includes promoting investments, trading in stocks and forging financial alliances.

Business‐to‐Consumer (B2C) e‐commerce also took off at around the same time in 1996 in the form of "matrimonial portals" that were developed to facilitate alliances among Indian families. This initiative was followed by the introduction of an online "recruitment portals" in 1997. The Internet was proving to be an efficient medium that enabled employers and job seekers to connect with each other. Also, since this medium was faster, it did away with the delays involved in print media. Obviously, such initiatives could not be significantly intensified or replicated quickly in other businesses because the supporting ecosystem had yet to be put in place. The Internet had yet to penetrate and the user base was small. Also, the slow internet speed was limiting the growth of e‐business mode. Slow growth was further compounded by low consumer acceptance of making purchases without "feeling" the product and the supporting logistics infrastructure had still to be developed.

The B2C segment has matured to include a wide spectrum of businesses. Value‐wise, this business segment, despite its impressive annual growth over the years, has a long way to go on par with B2B, largely due to high‐value transactions in B2B segment. The share of revenues in total B2C until 2011 from the travel segment has been dominant at 81%. Online shopping excluding travel and ticket has been of the order of $2 billion in 2013 according to ACCEL India and is expected to grow to $8.5 billion in 2016, i.e. rising annually at 63%. Also, the number of shoppers in this segment would grow from 20 million to 40 million, i.e. a CAGR of 25%. According to ACCEL India, the average value of order jumped from INR 1080 in 2012 to INR 1860— reflecting a jump of 67%; and, it is estimated to be INR 3600—assuring a modest rise of 25% per annum. The rise in the average value of order is significant of the growing comfort among customers with e‐shopping, especially with segments such as jewellery and home decor. Fashion wear and accessories generated revenue of $278 million in the year 2012 which rose to $559 million and is expected to further rise to $2811 million, reflecting an impressive growth. Revenue generated through mobile phone infrastructures increased eight times in 2013 over 2012 and is projected to be 27 times in 2016. This is reflective of increasing connectivity and mobile website applications. There has been an impressive fourfold increase in women influenced sales in 2013 compared to 2012 and is estimated to be twenty‐fourfold in 2016, reflecting inclusion of "special interest" products offered online, for e.g., baby care and motherhood products over and above fashion and jewellery products. Trends suggest that more and more secure financial modes such as credit/debit cards, net banking, etc., are being adopted and the COD (cash on delivery) mode has started declining.

Taxation related issues

The three major taxation related legal issues which the India E-commerce industry is suffering from are:

  1. the difficulty in characterizing the nature of payment and establishing a nexus or link between taxable transaction, activity and taxing jurisdiction.
  2. The difficulty of locating the transaction, activity and identifying the taxpayer for income tax purpose.
  3. The research problem ranges from technical issues faced by businessman in collect TCS to various legal difficulties such as non-availability of composition scheme to suppliers supplying goods and services through e-commerce operator who is liable to collect TCS u/s 52 of the CGST Act, 2018.

Existing Legal Situation

Though at the outset, the prospect of conducting e-commerce may seem uncomplicated and economical, there are a variety of legal factors that an e-commerce business must seriously consider and keep in mind before commencing its activities. The importance of dealing with these complex legal issues has already been highlighted in light of the recent "Napster.com" and "ToysRUs" cases

One of the major hurdles for setting up and running an e-commerce model in India is legal problems which are exhaustively elaborated in this Article. To get a gist of legal problems faced by the E-commerce model following is the summarized list of Indian laws, regulations and guidelines applicable to such business:

  1. 1.Information Technology Act, 2000 (the IT Act)
  2. 2.Information Technology (Intermediaries Guidelines) Rules 2011 (the IT Intermediary Rules)
  3. 3.Payment and Settlement Systems Act, 2007
  4. 4.Consumer Protection Act, 1986
  5. 5.Competition Act, 2002
  6. 6.Foreign Exchange Management Act, 1999
  7. 7.Foreign Direct Investment Guidelines
  8. 8.Income Tax Act, 1961
  9. 9.Central Goods and Service Act, 2017
  10. 10.Companies Act, 2013
  11. 11.Trademarks Act, 1999
  12. 12.Indian Contract Act, 1872
  13. 13.Copyrights Act, 1957, Etc.

The list can run into pages. The sheer number of laws applicability shows the complexity of operating as a e commerce business in India. But it has to be noted that each law and rule has its own purpose to enable the business to run in a compliant and socially responsible manner.

One of the major streams of laws affecting the E-commerce business in India are Indian Tax Laws briefly divided into "Direct Tax' and 'Indirect Tax'. Indian current legal structure and challenges faced by it in E-commerce shall be discussed in detail in further parts of the article.

2. Direct Tax Laws affecting E-commerce business

In the absence of boundaries and physical nature of e‐commerce transactions relating to goods and services, taxation of such activities raises several issues. E‐ commerce transactions are conducted worldwide—between parties residing in different states as well as countries. There is a tremendous increase in the magnitude of cross‐boundary transactions. By significantly reducing the transaction costs of communication and selling without regard to geographic boundaries or the size of the company, the tool of internet permits companies—that were earlier confined to local markets—to sell goods, services and information internationally. While tax authorities may track those e‐transactions where goods are delivered physically, tax evasion becomes a distinct possibility in direct e‐commerce. The techniques employed in the transmission of digitized information create difficulties in identification of the source/origin and destination of both production and consumption locations. Also, the technical feature of online transactions creates various problems for the taxing authorities, for instance, in establishing audit trails, verifying parties involved in transactions, obtaining documents, and fixing convenient taxing points. Internet operations lend anonymity to the parties in various ways despite the availability of email addresses and domain particulars. Concerns have thus been expressed that e‐commerce could result in the evasion of taxes. Consumption taxes are levied according to:

  • i)the principle of taxation followed at the place of consumption, and
  • ii)the rates that are set in individual countries or individual states in the case of federal nations.

E‐commerce has the potential of undermining the application of both domestic and national tax rules. The massive growth of e-commerce business has not gone unseen by the tax authorities. Realising the potential of earning tax revenue from such sources, tax authorities world over are examining the tax implications of e-commerce transactions and resolving mechanisms to tax such transactions. In India, the High-Powered Committee was constituted by the Central Board of Direct Taxes, which submitted its report in September 2001.

In the Indian tax regime, the provision relating to scope of total income helps to determine the Income which is to be taxed under the Income Tax Act, 1961.

2.2 Issue regarding allocation of Income for E-commerce business models

2.2.1 Existing Legal Structure

In India among the major tax issues one predominant issues over the years is taxability of E-commerce business who does not have any physical permanent establishment (PE) and operate completely from servers situated outside India. Thus, although the income is earned from Indian soil it remains untaxed and no revenue share is received by the govt.

The typical taxation issues relating to e-commerce are:

  1. iv.the difficulty in characterizing the nature of payment and establishing a nexus or link between taxable transaction, activity and a taxing jurisdiction.
  2. v.The difficulty of locating the transaction, activity and identifying the taxpayer for income tax purpose.

The digital business, thus, challenges physical presence-based permanent establishment (PE) rules. If PE principles are to remain effective in the new economy, the fundamental PE components developed for the old economy i.e. place of business, location & permanency must be reconciled with the digital reality.

"The oranges upon the trees in California are not acquired wealth until they are picked, not even at that stage until they are packed, and not even at that stage until they are transported to the place where demand exists and until they are put where the consumer can use them. These stages, up to the point where wealth reached fruition, may be shared in by different territorial authorities."[vi]

Taxation of business profits based on economic allegiance has always been the underlying basis of existing international taxation rules. Economists gave primacy to the economic allegiance rather than physical location and made it clear that physical presence was important only to the extent it represented the economic location.

Ordinarily, as per the allocation of taxing rules under Article 7 of DTAAs, business profit of an enterprise is taxable in the country in which the taxpayer is a resident. If an enterprise carries on its business in another country through a 'Permanent Establishment' situated therein, such other country may also tax the business profits attributable to the 'Permanent Establishment'. For this purpose, 'Permanent Establishment' means a 'fixed place of business' through which the business of an enterprise is wholly or partly carried out provided that the business activities are not of preparatory or auxiliary and such business activities are not carried out by a dependent agent.

For a long time, nexus based on physical presence was used as a proxy to regular economic allegiance of a non-resident. However, with the advancement in information and communication technology in the last few decades, new business models operating remotely through digital medium have emerged. Under these new business models, the non-resident enterprises interact with customers in another country without having any physical presence in that country resulting in avoidance of taxation in the source country. Therefore, the existing nexus rules based on physical presence do not hold good anymore for taxation of business profits in source country. As a result, the rights of the source country to tax business profits that are derived from its economy are unfairly and unreasonably eroded.

OECD under its BEPS Action Plan 1 addressed the tax challenges in a digital economy wherein it has discussed several options to tackle the direct tax challenges arising in digital businesses. One such option is a new nexus rule based on "Significant Economic Presence". As per the Action Plan 1 Report, a non-resident enterprise would create a taxable presence in a country if it has a significant economic presence in that country based on factors that have a purposeful and sustained interaction with the economy by the aid of technology and other automated tools. It further recommended that revenue factor may be used in combination with the aforesaid factors to determine 'significant economic presence'.

Before amendment by the Act, the scope of existing provisions of clause (i) of sub-section (1) of section 9 of the Act was restrictive as it essentially provided for physical presence-based nexus rule for taxation of business income of a non-resident in India. Business connection as defined under the act, was also narrow in its scope since it applied to certain activities or transactions of non-resident, viz. the activities carried out through a dependent agent. Therefore, emerging business models such as digitized businesses, which do not require physical presence (whether of itself or any agent) in India, were not explicitly covered within the scope of the said section.

In view of the above, a new Explanation 2A has been inserted in clause (i) of sub-section (1) of section 9 of the Act to provide that 'Significant Economic Presence' in India shall also constitute 'business connection' and that "Significant Economic Presence" for this purpose shall mean—

(i) transaction in respect of any goods, services or property carried out by a non-resident in India including provision of download of data or software in India, if the aggregate of payments arising from such transaction or transactions during the previous year exceeds such amount as may be prescribed; or

(ii) systematic and continuous soliciting of business activities or engaging in interaction with such number of users as maybe prescribed, in India through digital means.

It is further provided that only so much of income as is attributable to such transactions or activities as specified in (i) or (ii) above shall be deemed to accrue or arise in India. It is also provided that the transactions or activities shall constitute significant economic presence in India, whether or not –

(i) the agreement for such transactions or activities is entered in India;

(ii) the non-resident has a residence or place of business in India; or

(iii) the non-resident renders services in India.

Therefore, if any transactions or activities are carried out by a non-resident in India beyond a threshold as may be prescribed, then such non-resident taxpayer would be liable to tax in India irrespective of its physical presence. In this connection, it is also clarified that unless corresponding modifications to PE rules are made in the DTAAs, the cross-border business profits will continue to be taxed as per the existing treaty rules.

Applicability: This amendment takes effect from 1st April, 2019 and will, accordingly, apply in relation to assessment year 2019-20 and subsequent assessment years.[xi]

To overcome the above-mentioned difficulties with taxing E-Commerce businesses, the concept of Equalisation levy was also introduced by Modi Govt. Under this scheme although initially only the business of online advertisement is covered but it has its scope open for govt. To notify any further services or goods. Under the said provision 6% of the payment made to any for online advertisement to any Non-resident not having PE in India is deducted towards full and final payment of tax liability on such services.

2.2.2 Significant Challenges in Existing Legal Structure

Looking at the need of an hour, India has already moved forward and has applied Equalization Levy since 2016 at a rate of six per cent on the payments made by Indian businesses to non-residents providing digital advertising services. In 2018, India recognized virtual presence as constituting nexus to assert taxing rights and introduced the concept of Significant Economic Presence (SEP) in its tax laws.

The SEP provisions may be interpreted to mean that the entire income attributable to a transaction giving rise to a SEP is taxable in India, even though operations of such transaction/business activities may be carried outside India. This leaves significant room for ambiguity and raises questions over extra-territorial applicability. The OECD acknowledges that without effective changes to profit allocation rules, the introduction of standalone nexus provisions is likely to be ineffective. The SEP provisions, in the present form, deviate from this precept which is likely to increase controversy in India without a meaningful increase in profit allocation and tax collection.

With newer technologies such as blockchain, virtual reality and artificial intelligence on the rise, the pace of digitalization is only going to accelerate. Any new legislative enactment must be fully considered, and its broader impact fully evaluated, before being implemented. A unilateral move can only expose India to retaliatory measures from other countries. As the OECD works towards a solution towards digital taxation, India's interests will be better served if it works through developing a consensus-based, longer-term, multilateral solution to digital taxation.

Although government enacted the law in regards to the concept of virtual PE through inserting provisions of SEP, the rules to make the provisions effective are yet to be notified. As in other fields, a law for taxing e‐ commerce income has to evolve. In such an evolutionary model, guidelines will be laid through court's Rulings and guidelines for developing income classification rules and residency rules. In the initial faces things are going to be dicey and every stand is to be taken with caution as it can lead to unnecessary litigations. A wide range of tangible/intangible goods and services are being traded through technology‐aided new and even multimodal methods. For example, a book can both be a part of a database which is accessible to users and can also be downloaded as an e‐book with the possibility of receiving updates. Such features of the business/income blur the distinction between "trade income" and "service income". E‐commerce thus cannot be easily classified according to the conventional categories.

Enforcement of an international tax regime in e‐commerce is not easy due to the limited physical presence or the virtual nature of the transactions. Besides, the anonymity of the transactions and transacting parties makes it hard for the enforcement agencies to identify the existence of transactions.

These challenges have been created by technology and it is possible to meet such challenges with the help of technology itself. Technology is becoming fast available to specify the geographic locations of the parties involved in e‐commerce transactions, thanks to the demand made by the advertising world that wishes to target consumers based on their location and preference for selling their products and also by administrators seeking to target families and groups on locational basis. The virtual feature can be overcome by making use of the "tracking" technology to reveal the details of a transaction to the tax authorities.

In any dispute, one of the primary issues that a court determines is whether or not they said court has jurisdiction to try the dispute. A court must have both subject-matter jurisdiction (i.e. jurisdiction over the parties involved in the dispute) and territorial jurisdiction. The increased use of the internet has led to a virtual world which is not possible to be restricted in terms of traditional concepts of territory; this has led to complications in determining jurisdiction. According to the traditional rules of jurisdiction determination, the courts in a country have jurisdiction over individuals who are within the country and/or to the transactions and events that occur within the natural borders of the nation. Therefore, in e-commerce transactions, if a business derives customers from a particular country as a result of their website, it may be required to defend any litigation that may result in that country. As a result, any content placed on an e-commerce platform should be reviewed for compliance with the laws of any jurisdiction where an organization wishes to market, promote or sell its products or services as it may run the risk of being sued in any jurisdiction where the goods are bought or where the services are availed of.

3.1 Introduction

GST is a comprehensive, multi-stage, destination-based tax on value addition and it has very clear rules and regulations for specific segments which makes it more powerful and applicable, specifically in the field of e-commerce. For eg. Section 2(43), (44), (45) provides the meaning of following-Electronic Cash Ledger, Electronic commerce, Electronic commerce operator. This shows the inclusion of E-commerce transactions in GST legislation.

GST helped in removing the cascading effect. (double taxation, tax on tax) and it expanded the horizon of e-commerce operators. In simple language it can be understood as now E-commerce has become easier and more compatible to be done. The way you pay GST depends on the type of online business you run.

There are two main types of online businesses. The first uses a direct-sales method, where one buy or make products and sell them to customers through their website. If that's how one operates, one can simply follow standard GST filing rules.

The second type of online business is an e-commerce aggregator. An aggregator is a website like Flipkart, which connects buyers and sellers and takes a commission on each sale. Since they don't always sell the products directly to customers, these types of e-commerce businesses must handle GST differently. This happens with a tax collected at source, or TCS. When your website facilitates a sale between a buyer and a seller, GST law requires them to deduct 2% of the sale before they send payment to the seller. They must pay that amount to the government. Then, their sellers can claim that tax as a deduction on their own GST filings.

If you're an aggregator, both you and your sellers must report all sales to the government. Your reports and their reports must match exactly. If they don't, your sellers are responsible for the outstanding GST. The TCS requirement helps you spot and remove sellers who aren't reporting sales accurately.

To avoid any malpractices in e-commerce business about GST, Tax collection at source (TCS) provisions were rolled out on 01st October 2018. TCS refers to the Tax which is collected by the e-commerce operator (ECO) when a supplier supplies some goods or services through its portal and the payment for that supply is collected by the ECO.

3.2 Issue about composition scheme, registration, etc for E-commerce
3.2.1 Existing Legal Structure

Every E-commerce operator as defined under the CGST Act, 2017 who is required to collect tax at source u/s 52 of the CGST Act, 2017 is required to get registered under GST.

In respect of specified services, tax shall be paid by the ECO on behalf of the service suppliers if such services are supplied through it and all the provisions of the Act shall apply to such ECO as if he is the supplier liable to pay tax about the supply of such services. The Government has notified following categories of services, the tax on intra-State/ inter-state supplies shall be paid by the ECO-

  1. 1.Transportation of passengers by a radio-taxi, motorcab, maxicab and motor cycle.
  2. 2.Providing accommodation in hotels, inns, guest houses, clubs, campsites or other commercial places meant for residential or lodging purposes.
  3. 3.Services by way of house-keeping, such as plumbing, carpentering etc.

Every electronic commerce operator, not being an agent, shall collect TCS at such rate not exceeding 1% (0.5% CGST + 0.5% SGST), of the net value of taxable supplies made through it by other suppliers where the consideration with respect to such supplies is to be collected by the operator.

ECO should make the tax collection during the month in which the consideration amount is collected from the recipient. The amount of TCS collected by the ECO is to be deposited to the Government and ECO is required to furnish a statement in Form GSTR-8, electronically within 10 days after the end of the month in which amount was so collected.

There are also separate set of provisions under GST act in respect online information and database access or retrieval services (OIDAR services).

For any supply to be taxable under GST, the place of supply in respect of the subject supply should be in India. In case, both the supplier of OIDAR Service and the recipient of such service is in India, the place of supply would be the location of the recipient of service i.e. it would be governed by the default place of supply rules. What happens in cases where the supplier of service is located outside India and the recipient is located in India. In such cases also the place of supply would be India and the transaction would be amenable to tax subject to various other conditions.

3.2.2 Significant Challenges in Existing Legal Structure

Person who is engaged in making any supply of goods through an electronic commerce operator who is required to collect tax at source under section 52 can't take registration under composition scheme u/s 10. This could be discouraging for the small sellers to sell goods through e-commerce operator.

E-commerce operators are very confused about the collection of TCS. When to collect TCS, when to deposit TCS to the credit to the government, are largely the major concerns. TCS has to be collected once the supply is made through the e-commerce operator. Irrespective of the actual collection of the consideration, TCS will be collected in the month of supply of such goods and/or services. For instance, if the supply has taken place through the e-commerce operator on 15 October 2018 but the consideration for the same was received on 6 November 2018, then TCS on such supply will be collected and reported in the return statement for the month of October 2018.

Moreover, the e-commerce operators who are liable to collect TCS u/s 52 of the CGST Act, 2017 are obligated to register under GST regardless of how much they sell. This could be unfair to some small eCommerce operators, as the same rule does not apply to offline sellers who sell any amount below the threshold of 20 Lakhs for the North Eastern states and 40 lakhs for the rest of India. (CA Harshad Shinde, Avalara, 2016). Moreover, there are multiple GST compliances which are to be followed by the e commerce business houses as compared to normal business houses such GSTR 8 & GSTR 9B (for E-commerce operator liable to collect TCS u/s 52 of the CGST Act, 2017).

The sales reported by the e-commerce operator will have to match with the sales declared by the supplier himself at the end of every month, and any difference will be added to the turnover of the supplier and consequently be liable to discharge GST on such additional turnover. Additionally, the e-commerce operators will have to register in each state and file the reports separately on a monthly basis. This process increases the challenges in compliance and costs of running the business.

The GST Act is a welcome move toward legal recognition of the ecommerce model in India, but further modifications will be required to avoid problems in execution. The sooner these issues are settled, the smoother the GST rollout will be.

Even in regard to domestic levies on e‐commerce transactions taking place within the country, e‐commerce is posing challenges for revenue collectors. The growing volume of e‐commerce in India promises a good tax base. Business groups would argue on merits that if e‐commerce is allowed to grow there will be a general reduction in transaction costs everywhere. Resulting output increases will widen the tax base. Therefore, an argument is made out not to tax e‐commerce. However, the states, in the hunt for revenue earning avenue and also on the principles of neutrality and equity, cannot let this module of business go tax‐free. Even within the country with federal structures where tax levying powers are distributed between centre and states, the traditional tax models, in case of e‐commerce, break down. The question of jurisdiction crops up since the vendor and the customer may be located in different states.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]


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