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Knowledge Update
New Developments
Deal Dynamics
September 2015
Knowledge Update
Taxation Challenges in the eCommerce Regime
E-commerce is the new normal with goods and services having moved from a physical platform to
a digital one i.e. goods and services being transacted online or being themselves digital. The current
tax laws could pose significant challenges in e-commerce, especially international transactions, and
this calls for a new tax system which specifically recognizes and deals with e-commerce. The Indian
Revenue, having been aware of the unique challenges posed by e-commerce, constituted a High
Powered Committee (HPC) on Electronic Commerce and Taxation in 2001 to examine the then
current as well as proposed tax treatment of e-commerce. More recently, in 2013, OECD and the
G20 countries adopted a 15-point action plan to address Base Erosion and Profit Shifting (BEPS)
strategies adopted by companies to minimise their tax cost through artificial structures; Action 1 of
BEPS deals specifically with tax challenges in e-commerce.
Unique tax challenges presently posed by e-commerce
Generally, income of a company is taxed in the country of incorporation. However, a company with
global operations is also taxed in countries in which it carries on business (source country) in case
a physical presence i.e. a permanent establishment (PE) is created in that country. Profits
attributable to the business activities carried out by the PE in such source country may be taxed. The
physical presence could be in the form of a place at the disposal of the company or presence of
employee / dependent agent. The inherent nature of e-commerce permits companies to do away
with the need to have a physical presence to carry out business operations in a source country and
this gives rise to tax challenges for the source country. For instance, a challenge arises when a
company carries out its business through websites, for example, providing services online, sale of
music, etc. As per the Organization for Economic Cooperation and Developments (OECD) 2014
commentary on its model tax treaty, merely having a website does not lead to a PE; the website
must be hosted on the companys server in the source country to create a PE. The servers of ecommerce companies may be located outside the source country, which may lead to the source
country being unable to tax the income in the absence of a PE.
This challenge has also been recognized by the HPC in its report. One of the most challenging
supply types identified by OECD is growth of cross-border digital supplies to end customers, where
it is difficult for countries to tax supplies made by non-residents. The option for addressing the
challenge includes requiring vendors to register and account for taxes in the country of importation.
The non-resident suppliers of B2C supplies can register and account for taxes in the customer
jurisdiction as implemented by the European Union in 2015.
Another unique challenge arises in case of e-tailers. While maintaining facilities in a source country
and making deliveries therefrom may not create a PE under the existing OECD model tax treaty, the
same may lead to non-taxation in an e-commerce scenario, where maintaining a warehouse in the
market country is a critical activity for an e-tailer which conducts all other activities through
automated processes. Also, the e-commerce scenario makes it easier to fragment critical functions of
a business and locate the same in different countries owing to increased communication. For
example, the intellectual property rights may be situated in a low-tax country and profits in source
countries could be reduced due to royalty payments for such rights. Such practices may result in
avoidance of PE or low attribution of profits to the PE from a transfer pricing perspective.
The retailers would pay appropriate taxes in B2B or B2C online sale transactions. Where the online
portal provides platform for C2C transaction, who has the onus to discharge tax? Already, some
September 2015
September 2015
New Developments
Government of India to spend $6.88 billion on IT in 2015
According to a Gartner forecast report, Enterprise IT Spending for the Government and
Education Markets, Worldwide, 2013-2019, 2Q15 Update, led by the Digital India Programme
Government of India will be spending USD 6.88 billion on IT products and services in 2015, an
increase of 5.2 percent over 2014. Government spending on software will total 869 million USD
in 2015, a 10.6 percent increase from 2014. As per the report, IT services, including consulting,
implementation, IT outsourcing and business process outsourcing, is expected to grow 10
percent in 2015 to reach $1.6 billion with the BPO sub-segment growing by 21 percent. The
report also forecasts that telecom services will be a USD 1.6 billion market, with the mobile
network services sub-segment recording fastest growth of 3 percent in 2015 to reach USD 787
million.
Impact: Investments in Digital India initiative, with a focus to allow access of government
services on mobile, expansion broadband network, the smart city programme, and
governments spending on IT software and services for the implementation of these
programmes, will be a stimulus for Indian IT sector. Most importantly, these investments will
give the necessary fillip to Indias efforts in increasing domestic IT consumption on a large scale.
RBI permits banks to use e-payments for imports
The Reserve Bank of India has taken a decision to allow banks to process and settle import
related payments facilitated by online payment gateway service providers (OPGSPs). RBI had
earlier permitted banks to offer the facility to repatriate export related remittances by entering
standing arrangements with OPGSPs in respect of export of goods and services. The limit has
been fixed at fixed at USD 2,000 on import and USD 10,000 on export of goods and software as
allowed under the foreign trade policy.
Impact: Prior to this decision, ecommerce companies were not specifically permitted by the RBI
to remit sales proceeds directly to the bank account of the overseas merchant for import of
goods made by such merchants. The decision is a significant step towards rationalizing the
regulatory framework pertaining to processing and remittance of import related payments to
the overseas merchants, and appointment of OPGSPs to facilitate the import related payment to
the overseas bank account of such merchants.
Government of Odisha to invest Rs 4,000 crore on IT-ITeS sector in the next 5 years
Government of Odisha will invest Rs 4,000 crore from its budget in next five years towards IT,
ITES and ESDM sector. The Odisha government has decided that every department would
spend two per cent of planned budget or one per cent of total budget for electronic enabled
service delivery to citizens as enacted under Right to Public Service Delivery Act. The state
government is also setting up a Green Field Electronics Manufacturing Cluster in the state.
Impact: The investment is an effort towards making Odisha the preferred destination for
IT/ITES/ESDM companies. Further, the investment is expected to create more than one lakh
jobs in the state.
India slips in ITUs broadband penetration rankings
According to a recently released International Telecommunication Union (ITU) report "The State
of Broadband", India's mobile and fixed-line broadband subscriptions in 2014 lagged behind as
compared to other countries. The annual report placed India 131st in fixed broadband coverage,
down from the 125th spot in 2013. While India's household internet access improved to 15.3% in
September 2015
Industry Results
No Results declared in the month of September15
Deal Dynamics
IT/ITeS
Quickheal files for IPO to raise Rs 250 Cr from fresh share sale
Antivirus software maker Quickheal Technology has filed the Draft Red Herring Prospectus
with the Securities and Exchange Board of India (SEBI) seeking permission for its initial public
offering (IPO). The Pune-based company intends to raise Rs 250 crore by issuing fresh shares. It
will also offer to sell 6.8 million shares held by promoters family and venture capital firm
Sequoia Capital India Investment Holdings which had acquired a 10% stake in 2010.
Infogain acquires Blue Star Infotech for Rs 180 Cr
San Francisco-based IT services company Infogain will be acquiring BlueStar Infotech, the
information technology (IT) arm of air conditioning major Blue Star for Rs 180.80 crore. As part
of the deal, Blue Star Infotech will retain its real estate and other assets, valued at around Rs.
96.7 crore, after the sale of its IT business. Infogain, which has offices in the US, Pune and Noida,
is backed by India-based private equity firm ChrysCapital, which infused $63 million (Rs 403
crore) in August 2015.
E-Commerce
FreeCharge Launches its Digital Wallet in partnership with Yes Bank Ltd
To take on rivals Paytm and Flipkart in the mobile payments battle, Snapdeal owned
online recharge and utility payments unit FreeCharge has launched a digital wallet in
partnership with Yes Bank and payment bank licensee Fino PayTech.The new wallet will allow
consumers to make payments for transactions on both Freecharge and Snapdeal. Snapdeal will
spend Rs.1,000 crore towards cash-back offers and other discounts as festive shopping picks up
during October-December, to attract consumers to start using FreeChrage digital wallet.
Freecharge already has a wallet-like FreeCharge Credits feature in its app, and by partnering
with payment bank licensee, it can integrate it with savings bank accounts via IMPS and NEFT
transfers and issue ATM and debit cards.
September 2015
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