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Mr. Deepak Chaudhary, IRS (IT: 2016)

Assistant Commissioner of Income Tax Cir–23(2), New Delhi

Mr. Deepak Chaudhary

Sh. Deepak Chaudhary is an Indian Revenue Service (IRS) officer of 2016 batch. He is an LLM in Corporate Law and is pursuing Part-time PhD. He has had a varied experience of working in the Income Tax Department, such as Exemption, TDS & Assessment at Delhi. Prior to joining of service, he was practicing at Delhi High Court.

Executive Summary

Equalisation Levy (Digital Taxation) was introduced in India (the first country in the world to do so) in Year 2016 on online Advertisement, subsequent to the ‘Report of the Committee on Taxation of E-Commerce’ which proposed Equaliation Levy on Specified Transactions. However it was kept outside the domain of Income Tax Act, which lead certain issues e.g tax credit of Equalisation Levy in other country, no liabiliy of the beneficiary, Tax Neutrality, etc. thereafter the amendments of 2018, introducing the concept of Significant Economic Presence (SEP) and th lately (2020) introduced amendment to Finance Act 2018.

Human race has evolved during the time scale through different forms of revolution, to begin with agricultural revolution occurred between 1750 and 1900. Since the agricultural revolution was a change in the methods of farming, people became more educated and improved the methods of farming and this lead to the industrial revolution. The first Industrial Revolution was characterized by steam and water. The second Industrial Revolution was the introduction of electricity to mass produce things. The third is characterized by the internet, communication technologies, and the digitalization of everything. The fourth Industrial Revolution is the concept of blurring the real world with the technological world1. With the advent of ICT2, which started to bring the change the way businesses were conventionally done. The ICT has made technologies cheaper, more powerful, and standardized, improving business processes and bolstering innovation across all sectors of the economy3. The rise in use of ICT led the government to frame a law which was known as The Information Technology Act 2000. Act No. 21 of 20004, enacted on 09 June 2000. It provides legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as ‘electronic commercial’ which involves the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies5. However, with parallel to electronic communication arose the ‘Digital Economy’6. So, what is the digital economy? It’s the economic activity that results from billions of everyday online connections among people, businesses, devices, data, and processes. The backbone of the digital economy is hyper-connectivity which means growing interconnectedness of people, organizations, and machines that results from the Internet, mobile technology and the internet of things (IoT)7. The digital economy is fundamentally different from the traditional economy as it existed during the 20th century when many economic theories were crystallized (and ossified)8. The digital economy is also sometimes called the Internet Economy, New Economy, or Web Economy9. The current tax rules (International as well as Domestic) were devised decades ago based on the functionality of the brick and mortar economy. M0reever, with the advent of the digital economy, the present tax regime stands redundant. The profits of the digital businesses have been increasing alarmingly, but there do not exist commensurate tax laws to tax such profits10. The digital economy is increasingly being viewed by governments as the ‘catalyst’, enabling enterprises to make use of the gaps that existed between different tax systems to reduce taxable income or shift profits to low-tax jurisdictions11. Accordingly, it is the need of the hour for all the countries to devise and revamp their tax laws, as the digital economy is ripe for taxation.12 However, here it is pertinent to note that ‘Digital Economy’ is different form ‘E-Commerce’.


As much as $83 billion of India’s services exports were delivered digitally in 2016–17, according to the first all-India survey on exports of services delivered remotely over information and communications technology (ICT) networks, such as internet platforms, telephones, and other computer networks13. According to NASSCOM, in 2017, the IT-BPO industry alone earned India a revenue of about US$154 billion14. Gradually,

The sine qua non for taxing any person16 in India is either he should be resident17 of India, or the income should accrue or arise in India or deemed to accrue or arise in India i.e. the source of income18 should be from India.

Residence-based and source-based are the two criteria to tax a person. Residence-based is largely followed by the developed nations whereas the source-based principle is largely followed by the developing nations. OECD Model Tax Convention is based on Residence principle. UN Model Double Taxation Convention is based on combination of Residence and Source Principle with key emphasis on the latter19. India is following basically residence-based taxation. Still foreign companies are taxed in accordance with source taxation and domestic companies are taxed on residence principle20.

To tax a domestic company, the scheme of Income-tax Act 1961 is clear and the domestic companies are taxed as per the laid legislation. However, the rules to tax MNCs, having only digital presence are not as clear as that of domestic companies. Over time, two types of cross-border transactions have emerged: (a) doing business with a country, and (b) doing business in a country. The former involves foreign companies being engaged in business transactions with the residents of a country, wherein these companies conduct their business activities without setting up a business presence in this country; for instance, selling products to its residents, but transferring the titles, risks and rewards outside the country. In such a situation, the taxation mechanisms of foreign companies are usually straightforward. Such foreign companies are not taxable in the country in which purchasers of their products are located since they neither have an official presence in it, nor do they undertake any business activities in it.

The latter situation envisages the presence of a company in a country that is not its country of residence. In this case, the company undertakes business activities in the foreign country by establishing its formal presence in it. The activities of such a company may be conducted by its employees or an agent, or from a fixed double-taxation-avoidance-agreement—all-about-dtaa. aspx Double Taxation Avoidance Agreement – All About DTAA ,”Taxation treaties or DTAAs to avoid double taxation between two or more countries are the order of the day now. Dr. Justice Vineet Kothari, a Judge Madras High Court”, accessed on 12-03-2020.

base through which it operates in the country. The taxation-related implications of these cross-border transactions are complex. The main questions that arise are two-fold: (a) which country has the right to tax the business profits earned by the foreign company through its formal presence in a country? (b) if the country in which a foreign company has a formal presence has the right to tax the business profits earned by it by utilizing the country’s resources, how can the proportion of profits to be taxed be determined?21

To tax foreign or any entity, there needs to be two essential things: one is the jurisdiction over the entity to be taxed and the second is taxable income. Jurisdiction is established through the Permanent Establishment and taxable income is as per the tax slabs under the Income-tax act 1961.

With the advent of digital markets/ digital economy the concept of PE has undergone drastic change. All the three model conventions namely, UN (United Nations) Model, OECD (Organization for Economic Co-operation and Development) Model and US (United States of America) Model use PE as the main instrument to establish taxing jurisdiction over a foreigner’s business activities. However, with the rise of digital economic activities the conventional PE definition (brick & mortar definition) has blurred. Now, the companies have significant economic presence without even having a single asset in the source state, as worded by Tom Godwin, ‘Uber the world’s largest taxi company, owns no vehicles. Facebook, the world’s most popular media owner, creates no content. Alibaba, the most valuable retailer, has no inventory; and Airbnb, the world’s largest accommodation provider, owns no real estate.

Something interesting is happening22’.We can feel the presence of either of these or other internet-based companies in our life in one way or other.

The issue of digital taxation was raised in BEPS actions of OECD, the Action 1 (Addressing the tax challenges raised by digitalization), talks of digital taxation, the gravity of the issue could be understood from the fact that digital taxation is the very first action out of total 15 actions and it is given a top priority. Over the period i.e. from 2015, it has evolved significantly and at present two pillars approach is adopted under Programme of Work (PoW) adopted by the OECD/ G20 Inclusive Framework on BEPS (Inclusive Framework) at its meeting of 28-29 May 2019, where Pillar One discusses the Secretariat Proposal for a ‘Unified Approach’ and Pillar Two deals with Global Anti-Base Erosion (GloBE) Proposal. The PoW explores technical design implementation issues that must be refined to develop a comprehensive and consensus-based solution23. However, no final outcome is found so far.

In India, the watershed point in field of digital taxation was the year 2016 when India introduced the Equalization levy. This was done in line of OECDs Base Erosion and Profit Shifting (BEPS) project of taxing e-commerce transactions. The Finance Act of 2016 introduced the new Chapter, Chapter VIII titled, “Equalisation Levy’. This Equalization Levy was result of the recommendations of Committee on Taxation of E-Commerce formed by the Central Board of Direct Taxes, Department of Revenue, Ministry of Finance, Government of India.

Headed by Shri Akhilesh Ranjan, Joint Secretary (FT&TR-I), CBDT, Department of Revenue, Ministry of Finance. This report is also known as ‘PROPOSAL FOR EQUALIZATION LEVY ON SPECIFIED TRANSACTIONS’ submitted in February 2016.

The reason for constituting the committee in 2016 was the rise e-commerce trade in India, the Information Communication Technology (ICT) gave rise to new business models that rely more on digital and telecommunication networks, without any physical presence, and derive substantial value from data collected and transmitted through such networks. These new ICT based business models have created new tax challenges in terms of nexus, characterization and valuation of data and user contribution. These issues are faced more commonly by countries like India, which have included provisions that allow taxing rights to the source jurisdiction to tax royalty and fee for technical services in their tax treaties, and thereby have a difference in position with the OECD in respect of these provisions. The combination of inadequacy of physical presence based nexus rules in the existing tax treaties and the possibility of taxing such payments as royalty or fee for technical services creates a fertile ground for tax disputes, particularly in countries like India, where the taxpayer rights are fully protected by the appellate authorities, and imposition of tax under ambiguous laws are often not sustained24. Moreover, globally the digital economy is growing at 10% a year, significantly faster than the global economy as a whole. Indian story of growth of digital economy is also almost same. The committee stated that equalization levy is needed to attain the objective of providing greater ‘clarity, certainty and predictability’ in terms of the taxation of the digital services and to reduce the cost of compliance. Inspite of DTAAs, withholding tax and various other provisions under the IT Act, the equalization levy was required to tax the income earned over services and transactions over digital platforms. The concept of ‘equalisation levy’ is an aspect of BEPS Action 1 of imposing tax on cross-border supplies of services and intangibles.

Considering the growth of ICT and e-commerce, the committee recommended for the imposition of equalization levy. This equalization levy was not made part of income tax but a separate chapter (Chapter 8, from Section 163 to Section in the Finance Act 2016, the reason for not making it a part of Income-tax Act because it is not the tax on the income and imposing a levy is an easy option that which can be adopted easily under domestic laws without making amendment of a large number of tax treaties25. The equalization levy is a tax on the consideration paid while Withholding tax is a tax on income, therefore, it is different from Withholding tax.

The government adopted the recommendations of the committee and introduced it as a separate chapter in Finance Act 2016. The Equalisation Levy is defined under Sub-section (d) of Section 164 of Finance Act 2016, which reads as ‘equalisation levy’ means the tax leviable on consideration received or receivable for any specified service [ore-commerce supply or services] under the provisions of this Chapter. This levy has to be imposed on ‘Specified Services’, the term is defined under Sub-section (i) of Section 164, ‘specified service’ means online advertisement, any provision for digital advertising space or any other facility or service for the purpose of online advertisement and includes any other service as may be notified by the Central Government in this behalf. Therefore, this levy was imposed only on the Online Advertisement, because by this time, Government of India did not notify any other service to fall within the domain of this chapter. Although the committee recommended Xiii services to be covered within the definition of Specified Services, however, the government imposed the levy only on the digital advertising. The charge of the levy is kept @6% (under Section 165 of the Finance Act 2016) of the amount of consideration for specified services and the aggregate amount of consideration for the specified services should exceed one lakh rupees.

It applies on the consideration for the services received/ receivable by a non-resident from a person being resident of India and carrying on business or profession or, a non-resident having a permanent establishment in India.

However, it does not apply to a non-resident providing the specified service having a permanent establishment in India and the specified service is effectively connected with such permanent establishment. The aggregate amount of consideration for specified service received or receivable does not exceed one lakh rupees. If the payment for the specified service by the person resident in India, or the permanent establishment in India is NOT for the purposes of carrying out business, or profession.

The levy so deducted shall be paid to the credit of central government by every seventh day of the month immediately following the calendar month in which the amount is deducted. Every assessee is bound to give the statement of such deduction at the end of financial year in such form and verified in such manner, to the assessing officer. However, on the failure to furnish or on giving a wrong particulars the assessee may furnish or revise the statement within two years from the end of financial year in which the specified services were provided. However, for processing of statement certain adjustments need to be done, but no adjustment shall be done after the expiry of one year from the end of financial year in which statement is furnished. The time period for making rectification of mistake is one year from end of financial year in which intimation sought to be amended was issued. Opportunity of hearing is to be given to assessee when as a result of any intimation the affect on assessee is adverse. In case of failure to credit the levy or part of it to the Central Government, the asessee is liable to pay the interest @1% for every month or the part of the month. Penalties are also prescribed under Section 171 of the Finance Act 2016. In case of failure to deduct the whole or any part of the amount the penalty is the levy and the actual amount i.e. [ Levy + Penalty (where penalty is equal to Levy that he failed to deduct)] and in case of having deducted but fails to pay the amount to the credit of central government, it will be Levy + interest @1% for every month or the part of the month + Penalty of 1000 Rs. for every day during which the failure continues, but it should not exceed the amount of Levy that he failed to pay. In case of failure to furnish statement within specified time he shall be liable to pay 100 Rs. for each day during which delay continues. The penalty shall not be levied where AO is satisfied that there was reasonable cause for the failure. Against the order of penalty, the asessee can make appeal to CIT(A) within 30 days. Here, the Income-tax Act 1961 will come into force. Appeal to ITAT shall be made within 60 days from the date on which the order received by the assessee. The punishment for false statement is imprisonment which may extend to 3 years and with fine and the offence is non-cognizable. The prosecution can only be instituted with previous sanction of

Chief Commissioner of Income Tax.

The chapter is applicable only for B2B (Business-to-Business) and not for B2C (Business-to-Consumer) or C2C (Consumer-to-Consumer). Therefore, specified services which are availed only for business purposes shall be liable for the levy and not others. However, it won’t be easy to ascertain if in the garb of not availing services for business or profession the equalization levy is avoided and subsequently same services were used for carrying the business or profession.

Secondly, Equalization Levy itself is issue, as many countries would not provide the tax credit on levy as it is not leviable on income hence, there arise the possibility of double taxation or non-availability of tax credit to the non-resident service provider.

Thirdly, the big corporate houses like Google, Facebook, Airbnb etc. have big pockets and they can bear the cost or even they may pass on this cost to the consumer, in later case the burden over consumer will increase and this would be detrimental, especially, in the case of start-ups.

Fourthly, in September 2013, the Committee on Fiscal Affairs (CFA) of the OECD had established a Task Force on the Digital Economy (TFDE), TFDE examined three options, i.e. (i) a new nexus in the form of a significant economic presence, (ii) a Withholding tax on certain types of digital transactions, and (iii) an Equalization Levy, and concluded that, we do not recommend any of the three options as internationally agreed standards26.

Fifthly, in report ‘Addressing the Tax Challenges of the Digital Economy, Action 1 – 2015 Final Report’ the report mentions that under current tax systems, it is very often possible to use artificial structures to ensure the physical presence which either does not create taxable presence, or does not attract significant profits so that the bulk of the profits then can be shifted to no or low tax jurisdiction. It is not clear how would Equalization Levy would help in protecting this act of tax avoidance27.

Sixthly, Tax Neutrality is one of the prime reason to enforce the Levy, however it is difficult to ascertain the same as the Non-Resident Service provider may pass on this burden of levy on the buyer of services in India, as the service provider may not get the credit of same in his parent country, the buyer have to shed more money to avail these services and hence increasing the cost of services. Whereas the Indian service providers may not be able to compete with these big non-resident players, because of the big pockets and wide reach of these big non-resident players.

Seventhly, it is a unilateral measure taken by India, whereas the direction of movement in taxation regime is multilateral.

Finally, the asessee who is already complying to so many different regimes, adding one more compliance under different Act, will add further burden to the asseessee, whereas the non-resident is free from any liability.

To make it easier for taxing authorities the government further expended the meaning of ‘Business Connection’ by bringing amendment in Section 9 of the Income-tax Act 1961, in year 2018 to be effective from 01.04.2019, by including ‘Significant Economic Presence’ (Explanation 2A of Section 9 of the I-T Act) in its ambit this was is in sync with the observations of OECD Action 1 report. The Significant Economic Presence is defined as:

Explanation 2A.—For the removal of doubts, it is hereby clarified that the significant economic presence of a non-resident in India shall constitute ‘business connection’ in India and ‘significant economic presence’” for this purpose, shall mean—

a.  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

b. systematic and continuous soliciting of business activities or engaging in interaction with such number of users as may be prescribed, in India through digital means:

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; or

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

iii. the non-resident renders services in India.

This was done to assert India’s right, as a source country or the market, to tax the revenue from services sold in its territory. The first part of explanation requires the threshold limit which has not been defined yet. The OECD report on taxation of Digital Economy is likely to be published by December, 2020 and thus the threshold will be set after considering the OECD report. The second part of definition doesn’t require any threshold.

In the Financial Act 2020, the government further widen the scope of equalization levy by bringing in the amendment to the Finance Act 2016. It has extended the scope of equalization levy to almost all digital e-commerce transactions in India which will come into effect from April 1, 2020. The amendments so introduced by the Finance Act 2020 was not present in the Finance Bill 2020 that was presented on February 1, 2020. New Section 165A is inserted after Section 165 in Chapter VIII of the Finance Act, 2016. To be effective from 01.04.2020, this is inserted as Part VI of the Finance Act, 2020. It imposes levy of 2 per cent on the amount of consideration received or receivable by an e-commerce operator from ‘e-commerce supply of goods and services. It covers not only the e-com aggregators but also covers the standalone websites. Even any business transacted through e-mail communication is also covered by the levy. The threshold limit is kept at Rs. 2 crore, the levy will be applicable on the whole of the sales, turnover or gross receipts of the non-resident e-commerce operator, for calculation of threshold transactions or business with Indian residents only need to be considered. The equalization levy on e-commerce operator shall apply even in case of personal consumption without any business activity (b2C).

The payment of consideration between two non-residents for advertisement in India or the sale of data of Indian consumers is also covered under this amended Section which is covered under ‘specified circumstances’. But either of the two conditions should be satisfied i.e. either the targeted customer is resident in India, or the internet protocol address is located in India. The collection is to be paid by the e-commerce operator, unlike in the case of advertising levy, where the resident is burdened with the compliance of collection and deposition, to the credit of the Central Government. The due date of compliance is 7th day of the next month, ended after a quarter except for the quarter ending on 31 March, unlike the levy on advertisement where due date is 7th of every next month after the month in which the levy was deducted. However, whether the equalization levy would be paid on the value of the fee or on the value of goods or services is not made clear. A consequential amendment was introduced in Clause 50 of Section 10 to exempt the income of the non-resident e-commerce operator which suffers equalization levy under Chapter-VIII of the Finance Act, 2016 under the Income-tax Act1961. The Finance Act 2020 also introduced the TDS on E-commerce by inserting Section 194-O, which will come into force from October 1, 2020. The e-commerce operator shall deduct TDS on all payments or credits to e-commerce participants at the rate of 1% in PAN/ Aadhaar cases and 5% in non-PAN/ Aadhaar cases. This provision shall apply only where the e-commerce participants are residents, but the e-commerce operator may be a resident or non-resident in India.

A welcome step is taken by the government of India to widen the tax base in new and evolving field of digital taxation and to curb the tax avoidance. Today, digital taxation is the most discussed topic and it is difficult to have consensus based mechanism as the developing countries are largely the importers of these services and developed countries are the exporter of these services, which gives rise to clash of interest, because developed nations want the residence to be the criteria to determine the tax liability and the developing nations want the source to be the criteria for determining the tax liability.

A lot of work still needs to be done, e.g., the precise definition of the term ‘-ecommerce’ is yet to be defined, the absence of which creates confusion, in the minds of assessee. As the e-commerce is very wide and in today’s digital era, it is difficult to confine it within four corners unless a precise definition is given.

Lastly, in today’s global world where geography is history, unilateral measures in taxation are not appreciated much and economies are so inter-connected that it is difficult to sustain unilateral measures on grounds of parity and neutrality.

Since the equalization levy on e-commerce is introduced at times when world is going through pandemic of COVID19, it is difficult to forecast the effects of the latest amendments. However, the steps taken by the government of India are in positive direction and seems to be effective unless the world/ international organizations form some consensus based approach without any bias.


1. what-is-the-4th-industrial-revolution/#589bb2c5f392 accessed 08-03-2020

2. Information Communication Technology.

3. Evolution of digital economy and taxation challenges, Updated: 13 Oct 2018, 11:40 AM IST (https://www. Evolution-of-digital-economy-and-taxation-challenges. html) ,Vikas Vasal, Vikas Vasal is national leader tax–Grant Thornton India LLP. Accessed om 08-03-2020.

4. , accessed on 08-03-2020

5. , page – 05, accessed om 08-03-2020

6. It is often attributed to Don Tapscott in his 1995 book entitled “The Digital Economy: Promise and Peril in the Age of Networked Intelligence.” Since then, many have used it in different ways to describe tech-based economic activity and phenomena. definition/32989/digital-economy accessed on 09-03-2020.

7. What is digital economy?Unicorns, transformation and the internet of things. pages/technology/articles/mt-what-is-digital-economy. html accessed on 09-03-2020.

8. Chohan, Usman W., Some Precepts of the Digital Economy (January 1, 2020). Critical Blockchain Research Initiative (CBRI) Working Papers, 2020. Available at SSRN: https:// or ssrn.3512353 accessed on 09-03-2020.


10. Taxation of Digital Economy in India, Siddharth Shah html , accessed on 09-03-2020.

11. Digital economy taxation: ,by Ajay Rotti, accessed on 09-03-2020.

12. ,by Siddharth Shah, accessed on 09-03-2020.

13. x0020_Taxonomy=UNCTAD%20Home;#2045;#Information%20Economy:%20 Measurement;#1713;#Information%20and%20 Communication%20Technologies , India, with assistance from UNCTAD, conducts a new-style of trade-in-services survey to show the growing value of digitally enabled exports. Accessed on 09-003-2020.

14. India is considered one of the preferred destinations for with time, the presence of digital economy is increasing its footprint across the length and breadth of the country, be it manufacturing, or providing services, or be it any other ancillary activity. In Indian economy, as in any other economy, the taxation of this digital economy is one major concern, as the current statute which is of the year 1961, when no-one could have anticipated the digital economy. In absence of effective tax rules for digital transactions, the tax authorities tend to force-fit the existing tax rules, designed for a non-digital world, thus resulting in asymmetry, double tax burden and sometimes excessive profit allocation15.

outsourcing and key back office functions.

  • Apart from IT, jobs in sectors like HR and payroll management, digital marketing, and SEO are being increasingly outsourced to India. 
  • India is expected to be a global delivery center for artificial intelligence in the near future
  • ByNishthaYadav¸accessed on 09-03-2020.

15. , Evolution of digital economy and taxation challenges , accessed on 12-03-2020.

16. As defined under Section 2(31) of Income Tax act 1961.]

17. Residence in India. Defined under Section 6 of Income Tax act.

18. Section 2(24) of Income Tax act.


20. is the difference between Residence Based Taxation and Source Based Taxation? Accessed on 12-03-2020.

21. pdf The concept and significance of PE, accessed on 12-03-2020.

22., Tom Goodwin is senior vice president of strategy and innovation at Havas Media. Accessed on 01-06-2020.

23. accessed on 02-06-2020.

24. pdfaccessed on 02-06-2020.

25. accessed on 04-06-2020.

26. accessed on 04-06-2020.

27. ibid

Source- Taxalogue 3- April to June 2020

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