The Finance Act 2020 has received approval from President of India with few Key amendments which were not originally included in the Finance Act. One of the key amendments discussed below includes levy of Equalisation levy on E-commerce. It is discussed in brief below for the ready reference.

Currently the provisions of equalization levy (“EL”) introduced by Finance Act 2016, are applicable on the payments made for online advertising and marketing service, provided by non-resident service providers to a resident in India or non-resident having a Permanent Establishment (“PE’) in India. The EL is withheld by the recipient i.e. the payer for the services.

Finance Act 2020 has further extended the scope of the EL by inserting Section 165A from 1 April 2020 in the Part IV of the Finance Act, 2016 i.e. “Equalisation Levy on E-Commerce Supply or Services” where the foreign owned e-commerce platforms will have to pay EL in India. The EL is to be deposited by the payee.    

Liable

– Non-resident e-commerce operator who owns, operates or manages a digital or electronic facility or platform for:

• Online sale of goods

• Online provision of services or

• Both i.e. supply of goods or services

• Facilitates sale of goods or provision of services

Applicable

 – Where non-resident does not have a PE in India

– The sales, turnover or gross receipts are equal to or higher than 2 crore

– Not related to online advertisement for which the EL of 6% is applicable

Rate

2% plus surcharge on amount of the consideration received/receivable by the E-Commerce Operator

When to deduct

E-commerce supply of goods or services rendered or facilitated to

1. A person resident in India
2. A person who buys goods or services or use facilitation or combination of any by using an Indian IP address
3. A non-resident
   • For sale of advertisement for the audience in India or access of such advertisement through an IP address in India
   • For sale of data collected from a person resident in India or from a person who uses an IP address in India.

Other important points

1. Currently, the online goods purchased from foreign vendors are not chargeable to tax. However, now the EL will be payable thereon.

2. Currently, the services rendered by e commerce facilitator or through e-commerce are considered as Fees for Technical/Included Services and are chargeable @ 10% or 20% or applicable treaty as per the facts and circumstances. However, the specific provisions of equalization levy will override the provisions of FTS.

3. The Equalization levy is introduced through Finance Act and is not part of Income-tax Act, 1961. Thus, the provisions of overriding section 90 which provides the treaty benefit (entailing the benefit of make available) will not be applicable.

4. As the Equalization levy is over and above income tax and is separate from the same, the credit of the same may not be available or will be dependent upon the domestic law of the resident country of payer.

5. Penalty of 100% of the tax withheld for equalisation levy for not depositing the equalisation levy is applicable.

6. The payee has to deposit equalisation levy so collected on a quarterly basis and also file an annual return.

7. The income on which EL is paid by the non-resident will be exempt from income tax as per the provisions of section 10(50) of the Income-tax Act, 1961.