November 3, 2020 India releases implementation rules for Equalization Levy on e-commerce supply and services Executive summary On 28 October 2020, the Indian Tax Administration released implementation rules for the e-commerce supply and services equalization levy (ESS EL). The existing rules and forms relating to the advertisement equalization levy (Ad EL) were amended to extend their application to the ESS EL. This Alert summarizes the implementation rules. Detailed discussion The Indian Government introduced the Ad EL in India1 as a measure to tax certain digital transactions. With effect from 1 June 2016, any specified person making a payment to a nonresident (NR) for online advertisement and related services is obligated to deduct EL at 6% of the gross consideration (the Ad EL). The Finance Act 2020 amended the scope of the Ad EL with effect from 1 April 2020 to cover consideration received/receivable by NR e-commerce operators for e-commerce supply or services provided to specified persons (the ESS EL),2 subject to certain conditions. The ESS EL is required to be paid at the rate of 2% on the amount of consideration received/receivable by NR e-commerce operators. Unlike the Ad EL, the obligation for payment of the ESS EL lies with the NR e-commerce operators, who are required to make EL payments on a quarterly basis and file an annual return. In order to implement the ESS EL provisions, the existing Ad EL rules and accompanying forms which were released at the time of the introduction of the Ad EL have been modified to extend their application to the ESS EL. The amended rules are effective from 28 October 2020. The key rules applicable to the ESS EL are as follows:
Implications As the ESS EL provisions are effective from 1 April 2020, the implementation rules are highly anticipated. The forms mandate that e-commerce operators quote either the PAN or Aadhaar number when filing the annual statement as well as any appeal forms. Further, the person verifying the annual statement (in particular companies where the authorized person may also be an NR) is required to quote his/her PAN. This may create a procedural requirement to obtain a PAN even in the absence of any statutory requirement. Additionally, there is an anomaly between the substantive provisions and the procedural forms for the levy of penalties for quoting an incorrect PAN/Aadhaar in the EL forms. While procedural clarity has been provided for the implementation of the ESS EL provisions, additional clarification and guidelines on the scope and ambit of the ESS EL provisions are still required for which various industry representations have been made to the Indian Tax Administration. ——————————————— 1 Introduced by the Finance Act 2016. 2 See EY Global Tax Alert, India extends Equalization Levy scope to cover e-commerce supplies or services, dated 29 April 2020. ——————————————— For additional information with respect to this Alert, please contact the following: Ernst & Young LLP (India ), National Leader – International Tax and Transaction Services, Mumbai
Ernst & Young LLP (India), National Leader – International Corporate Tax Advisory, Bangalore
Ernst & Young LLP (United States), Indian Tax Desk, New York
Ernst & Young LLP (United States), Indian Tax Desk, San Jose
Ernst & Young Solutions, Indian Tax Desk, Singapore
Ernst & Young LLP (United Kingdom), Indian Tax Desk, London
Ernst & Young LLP (United States), Asia Pacific Business Group, New York
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