Tax panel wants 6-8% levy on most digital services

A high-level government committee has recommended a 6-8 per cent tax on several online services such as online advertising, cloud computing, website-hosting, digital platforms for sale of goods and services or download of software and applications, provided by a company not resident in India. Committee on Taxation of E-Commerce, set up by the Central Board of Direct Taxes (CBDT), recommended that payments of over Rs.1 lakh made by a resident individual or company to a non-resident enterprise will be covered by this levy.

“Such a threshold will keep almost all B2C (business to consumer) transactions as well as a very large number of B2B (business to business) transactions outside the scope of the equalization levy, thereby limiting its impact,” according to the committee’s report.

The report was submitted to Finance Minister Arun Jaitley prior to the Budget, based on which he proposed a fee of 6 per cent to be levied only on online advertising and restricted to B2B transactions.

However, there are other recommendations made in the report that Mr. Jaitley is yet to implement.

“The Committee’s recommendation is to impose this levy on sale of digital goods and services, including website hosting, cloud computing etc,” Shefali Goradia, Partner, BMR & Associates said.

“Though the Budget proposal is to apply this levy currently only on online advertisements, more categories of digital goods and services may be added later.

“It is imperative that the government not only lays down clear guidelines around the transaction covered under the levy but equally, the manner of determination as to whether the equalisation levy (EQL) or Income Tax will apply on a transaction,” Rakesh Jariwala, Tax Partner - Media and Entertainment, EY said. “Else, the transaction could lead to double taxation—EQL as well as Income Tax.”

The equalisation levy follows the Base Erosion and Profit Shifting (BEPS) report, endorsed by the G20 and OECD, which sought to put forth a global standard for taxing e-commerce. The issue with e-commerce is that the services are often provided by companies that have no office space in the country where the service is rendered and so are not subject to tax, providing them an advantage over domestic players. The other issue, that experts feel needs to be addressed, is based on whom the onus of payment of the levy will fall.

“One important issue which the committee has taken cognisance of is that putting the onus of payment of the levy on the payment gateways and authorised foreign exchange dealers can reduce the obligation on the service purchaser,” Amit Maheshwari, Managing Partner, Ashok Maheshwary & Associates told The Hindu. The onus of the levy proposed by Mr. Jaitley fell on the service purchaser, which the industry felt was unfair. “The industry has reacted strongly to the equalisation levy as it could significantly drive up the cost of advertising online,” Chaaya Baradhwaaj, Founder-Managing Director, BC Web Wise said.

“However, it’s not enough to prevent platforms like Google and Facebook from hiking their ad rates to offset the 6 per cent levy or refusing to recognise it altogether,” Ms Baradhwaaj said.

Experts feel that the government has to bring in greater clarity on how the levy will be implemented, to whom it will apply and whether it will be distinct from Income Tax. “In their (Committee) view, since equalisation levy is on gross consideration paid, it is not in the nature of Income Tax and hence should not be covered by tax treaties,” Ms. Goradia said.

“The report states that the other countries are free to grant credit for this levy as per their domestic law. In future, if the other countries impose equalisation levy, India may consider granting credit on a reciprocal basis. “This levy is India’s attempt to tax the digital economy in a non-adversarial manner and at the same time demonstrate its commitment to the global BEPS project and of course to raise more revenues for the country,” Amarjeet Singh, Partner – Tax, KPMG in India, said.

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Indrani, Peter laundered Rs. 275 crore: CBDT report

The Sheena Bora murder case, in which her mother Indrani Mukerjea and stepfather Peter Mukerjea are accused, has taken a new twist following a report on money laundering of up to Rs. 275.5 crore by their company, INX Media.

The report, sent by the Central Board of Direct Taxes (a copy of which is with The Hindu), says the Mukerjeas laundered foreign funds into INX Media via dubious investment firms based in Port Louis, Mauritius. The infusion of huge share capital at a substantial premium was funnelled into eight subsidiary companies between 2007 and 2008, according to income tax documents and files in possession of The Hindu. Of the eight firms, six received unsecured loans and two received share capital at a substantial premium. One of them received suspect foreign funding, while the remaining seven received suspect domestic funding, documents show.

The new report is not part of various investigations into the Sheena Bora murder case, but constitutes a tax history of the group as documented by the CBDT, New Delhi, since the company was set up in 2007.

The report, submitted by a Government of India Deputy Secretary in the investigation wing of the CBDT to the Director-General of Income Tax (DG, I&T) on May 5, 2014, reveals a complex web and layers of ‘conduit’ companies infusing domestic and foreign capital into the INX Group.

In 2008-09, INX Media declared a loss of Rs. 270 crore. The same year tax sleuths were forced to do a scrutiny and make an addition of Rs. 275.5 crore to the group’s income “on account of unexplained sources of huge funds received by the company from domestic as well as offshore sources.”

The report shows three conduit companies: New Vernon Private Equity Limited, New Silk Route (NSR) PE Mauritius, and Dunearn Investment (Mauritius) making “doubtful” transactions of Rs. 28.37 crore, Rs. 89.85 crore and Rs. 89.40 crore into INX Media Private Limited from Assessment Year 2007-2008.

Mukerjeas funnelled crores from dubious companies

Taxmen found that conduit companies “did not even have any income of their own and lent money borrowed from others, which raised doubts.” A background check on New Vernon showed it to be a principal investment firm ‘specialising’ in investments in India. The firm was formerly known as New Vernon Capital LLC, founded in 2004. Various financial portals have no record of its key executives or data on its board. Dunearn claims to be a subsidiary of Temasek Holdings but has no publicly available records.

According to a statement by NSR, “New Silk Route’s fund invested in INX Media in 2007 and 2008, as a minority investor, along with a consortium of other well-known institutional investors. NSR's limited partners (investors) are primarily global institutions, and all are overseas.”

Assessment order

An assessment order, accessed by The Hindu, was passed against INX Media under Section 68 of the IT Act, 1961, asking it to “identify the source, prove credit worthiness and genuineness of the transactions.” The matter then went into arbitration as the group contested the order passed by the Assessment Officer (AO). “The AO clearly treated the source of the transactions as ‘dubious’ and ‘unexplained’ since the company failed to provide any documents whatsoever on the credible sourcing of these funds,” said a reliable source. “It clearly established several dubious entities, both domestic and foreign, infused substantial funds in the form of multi-layered investment.”

Domestically, the documents show INX News Limited, another subsidiary of the group, received premium of Rs. 81.84 crore and Rs. 29.15 crore (Rs. 111 crore) from IM Media and INX Media.

Three other transactions from IM Media, Indrani Incon and India Growth Fund pumped capital of Rs. 112.3 crore, Rs. 44.92 crore and Rs. 11.23 crore respectively at high premium. The same year, the report says, INX received an unsecured loan from former INX Media board member Manjula Rao to the tune of Rs. 41.4 crore and Rs. 156.01 crore, which were suspicious. “Manjula Rao invested over Rs. 250 crore in INX. The sources of these funds have not been investigated,” the report reads.

“I have nothing to do with INX, now or in the past. I am a professional, and in no way concerned with this company. These are manipulated records and files. The reports are doctored,” Ms. Rao told The Hindu.

Three months after the CBI took over the murder probe, it has made references to the Mukerjeas siphoning off nearly Rs. 900 crore out of INX Media.

The agency suspected that the couple illegally parked the money in an account in Singapore. Additional Solicitor-General Anil Singh has already claimed in court that the CBI is seeking details of financial transactions of the Mukerjeas from Interpol.

Meanwhile Peter’s Mukerjea’s counsel Mihir Gheewala and Kushal Mor countered the financial motive and said the CBI was turning the case around in this direction (financial dealings) to twist the case. “These facts are not part of the original remand. We are yet to look into it,” Mr. Gheewala told The Hindu.

A Timeline of events:

November 19, 2015: CBI arrests Peter Mukherjea along with filing charge sheets against Indrani, ex-husband Sanjeev Khanna and Shyamvar Rai the driver.

October 7, 2015: Indrani discharged from hospital,doctors confirmed drug overdose.

October 2, 2015: Indrani Mukherjea admitted in JJ Hospital after she allegedly overdosed on anti-epileptic pills.

September 19, 2015: Maharashtra announces the handover of the case to CBI.

September 9, 2015: Peter Mukherjea reveals to Khar police that Indrani often abused him.

September 7, 2015: Body of Sheena Bora found in Raigad forest.

September 5, 2015: The police custody extended again till September 7.

September 3, 2015: Indrani Mukherjea confessed her role in the murder.

September 1, 2015: Siddharth Das confessed that he is the biological father of Sheena and Mikhail Bora.

August 31, 2015: Fresh charges filed against Indrani attempting to kill her son. Police custody of the three accussed extended till September 5, 2015.

August 30, 2015: The three arrested were taken to the crime scene in Raigad. The call records were also checked by the police.

August 29, 2015: Maharashtra Police has ordered a probe into why the Raigad Police did not register an Accidental Death Report (ADR) after they found a burnt corpse, suspected to be of Sheena Bora, in 2012.

August 28, 2015: Sanjeev Khanna confessed to his "complicity in the crime." He had earlier said that, Sheena’s body was lying next to him in a car in which they were travelling together in Mumbai on April 24, 2012.

August 27, 2015: Sheena Shyam Rai, Indrani's driver, confessed that he murdered Sheena and disposed of her body, on the direction of his employer Indrani Mukherjea.

August 27, 2015: Sanjeev Khanna, a Kolkata based businessman and ex-husband of Indrani Mukherjea was arrested from Kolkata.

August 26, 2015: Indrani opened up that Sheena was her daughter from a previous marriage and not sister as maintained.

August 21, 2015: Shyamvar Pinturam Rai is arrested following the seizure of a 7.63-bore pistol from him.

May 23, 2012: Police find a decomposed body after villagers at Gagode in Pen tehsil, Maharashtra, complain of foul odour.

April 24, 2012: Sheena Bora takes a leave of absence from work at Mumbai Metro. On the same day she sends a resignation letter to her employer. She is not heard from again. No missing complaint is ever lodged by any family member.

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