Over the years, digitalisation and technology have revolutionised our world and daily lives. Emerging technologies such as internet of things, quantum computing, augmented reality, artificial intelligence, big data, machine learning, blockchain etc have a marked influence on our economic as well as social activities and are changing the way people connect, entertain, socialise, create, sell, shop and work. With technological advancement, the pace at which businesses have proliferated their extraterritorial presence without having any tangible footprint, is astonishing. India is among the top three global economies in terms of digital consumer base, with 624 million active internet users. Taxation systems in major developing economies, including India, were drafted taking into consideration, the traditional way of doing business, ie a brick-and-mortar model. The conventional residence-based and source-based concepts of taxation have become outmoded over time and incapable of effectively taxing the digital economy largely due to its distinctive amorphous nature. This has resulted in either double taxation or non-taxation of revenues and has become a key base erosion and profit shifting concern across the globe. The OECD and G-20 countries have been working determinedly under the inclusive framework on BEPS to address the need for tax reforms. The OECD is spearheading a project to develop a consensus-based solution to address this crisis through revised profit allocation and nexus rules. India has been at the fore of adopting changes in international tax systems to keep pace with progression in the digital world. India was among the first to implement Equalisation Levy in 2016 on online advertisements related services and to substantially expanded the scope of this levy in 2020 to cover e-commerce supply and services. Equalisation Levy is designed to operate outside the framework of the existing system of tax treaties and transactions covered thereunder are not subject to income tax.
In the year 2018, the domestic tax laws in India were amended to widen the scope of ‘business connection’ with the introduction of Significant Economic Presence (SEP). The resulting income of a non-resident attributable to SEP in India were to be considered taxable. However, owing to delay in accomplishing a global consensus, SEP provisions were deferred till April 1, 2021 and the enacting thresholds were not prescribed. Pursuant to the amendments in Finance Act 2020 and the recent notification prescribing these thresholds, SEP is now defined to mean any transaction in respect of any goods, services or property carried out by a non-resident with any person in India, including the provision of download of data or software in India, subject to payments threshold of INR 20 million or systematic and continuous soliciting of business activities or engaging in interaction with 0.3 million or more number of users in India. Moreover, transactions and activities may constitute SEP in India, regardless of whether a non-resident has a residence or place of business in India, or renders services in India, or agreement for such transactions or activities is entered in India. This all-embracing definition is not restricted to digital transactions and could also impact typical buy-sell or service transactions between non-resident and an Indian resident. Far from the original intent, SEP provisions may also embrace offshore sale of goods and provisions of services outside India, unless clarified otherwise. Necessary clarifications regarding definition of key terms such as goods, property, systematic and continuous soliciting etc are awaited too from the Regulators.
Although SEP related provisions are applicable from April 1, 2021, it may only be a ‘paper tiger’ as non-residents from tax treaty network countries are shielded under the narrower definition of Permanent Establishment (PE) in respective tax treaties. India has an operational tax treaty alliance with majority of countries housing businesses that derive income from India. Unless these tax treaties are renegotiated through bilateral or multilateral instrument and corresponding modifications are made to include provisions similar to SEP in those tax treaties, SEP provisions under domestic tax laws seem innocuous. Irrespective of this armour, test of beneficial ownership could still be a relevant aspect to evaluate, especially in cases of multi-tier structures, where a non-resident could invoke tax treaty protection to duck SEP test. On other side of the fence, SEP provisions would set in motion for all businesses coming from countries such as the Bahamas, Bermuda, Cayman Islands, etc, with whom India does not have a tax treaty yet.
A conjoint assessment of net basis taxation under SEP and gross basis taxation under Equalisation Levy would become critical for digital businesses. Equalisation Levy would become an elective regime once a non-resident e-commerce operator accedes to an Indian PE, in the form of SEP. In a scenario where a non-resident constitutes SEP in India, only income attributable to such transaction or activities would be taxable in India. While a public consultation document on profit attribution for SEP was issued by the Central Board of Direct Taxes, no rules have been notified so far. It, therefore, becomes apposite to assess the applicability of Rule 10 in such a scenario. Constitution of SEP would unfold various compliance obligations for both, payers and non-residents. Payers would be required to review withholding tax position as any shortfall could trigger expense disallowance, interest, and penal consequences. Non-residents, on the other hand, could be required to file income tax return, tax audit and transfer pricing reports in India, wherever applicable. Notably, non-compliance related to transactions carried out between April 1 and May 2 of 2021 (ie before threshold notification date) may possibly be defended by payers on the tenet of impossibility of performance.
Though the payment threshold for Equalisation Levy and SEP are calibrated at same level, it is quite low given the size of Indian economy and growing consumer base. Even after the Apex Court settled the highly debated issue of taxation of software, taxpayers cannot breathe a sigh of relief as the ruling was based entirely on the premise of no PE in India and software sale as well as services transactions could now well be covered under the new SEP regime. The evolving ecosystem of taxation in India would require non-residents to tread a tightrope as dynamic provisions such as SEP are plugging-in loopholes that may have existed under domestic tax laws for a while. What lies ahead is the hope of reaching a quick global consensus that could provide a fair and just system of taxation, followed by modification of tax treaties to incorporate the suggested amendments.
