Changes in Equalisation Levy after Budget 2021

Last Updated On: Feb. 8, 2021, 9:56 p.m.
...

CHANGES MADE IN EQUALISATION LEVY IN BUDGET 2021

                                      

Under section 165A of the Finance Act, 2016, as inserted by section 153 of the Finance Act, 2020, Equalisation Levy is to be levied at the rate of two percent. of the amount of consideration received or receivable by an e-commerce operator from e-commerce supply or services made or provided or facilitated,

by it-

(i) to a person resident in India; or

(ii) to a non-resident in the specified circumstances as referred to in sub-section (3); or

(iii) to a person who buys such goods or services or both, using an internet protocol address located in India.

 

What do you mean by Equalisation Levy?

Equalisation Levy is a direct tax, which is withheld at the time of payment by the service recipient. The following conditions are to be met to be liable to equalisation levy:

  • The payment should be made to a non-resident service provider
  • The annual payment made to one service provider exceeds Rs. 1,00,000 in one financial year.
  • The Equalisation Levy is levied on gross receipts from e-commerce supply. Further, the Equalisation Levy is outside the ambit of income tax as it was introduced through Finance Act, 2016, and is therefore not covered by double taxation avoidance agreements (DTAAs). Consequently, non-residents subjected to Equalisation Levy cannot claim relief under DTAAs and will not be entitled to credit for Equalisation Levy paid in India in their country of residence.

 

What is the charge of the Equalisation Levy?

The charge of equalisation levy shall be at the rate of 6% of the amount of consideration for any specified service received or receivable by a person, being a non-resident from:

  • a person resident in India and carrying on business or profession; or
  • a non-resident having a permanent establishment in India

 

What is the applicability of Equalisation Levy on e-commerce operators?

From the 1st of April, 2020, equalisation levy was charged at 2% of the amount of consideration received/receivable by an e-commerce operator from e-commerce supply or services made, provided or facilitated by it:

  • To a person resident in India
  • to a non-resident in the specified circumstances
  • to a person who buys such goods, services or both using an internet protocol address located in India
  • Specified circumstances as mentioned in the 2nd point means:
  • sale of advertisement, which targets a customer, who is a resident in India or a customer who accesses the advertisement through an internet protocol address located in India; and
  • sale of data, collected from a person who is resident in India or from a person who uses an internet protocol address located in India
  • An E-Commerce Operator is a non-resident who owes, operates or manages, a digital or electronic facility or platform for the online sale of goods or online provision of services or both. E-Commerce Supply or Services is the Online sale of goods owned by the e-commerce operator, Online provision of services provided by the e-commerce operator, Online sale of goods or provision of services or both facilitated by the e-commerce operator or any combination.

 

Budget 2021 added a new explanation to Equalisation Levy

Non-inclusion of royalty

Consideration received or receivable for specified services and e-commerce supply or services shall not include consideration which are taxable as royalty or fees for technical services in India under the Income-tax Act. They would still be taxed at a higher rate of 10%

 

Online Sale or Provision of Service

“Online sale of goods” and “online provision of services” shall include one or more of the following activities taking place online:

  • Acceptance of the offer for sale
  • Placing the purchase order
  • Acceptance of the Purchase order
  • Payment of consideration or
  • Supply of goods or provision of services, partly or wholly

The clarification suggests equalisation levy would even cover any businesses that have an e-commerce model, pure e-commerce model, marketplace model, and an intermediary as well. Offline transactions that may have even a minor digital element, could be potentially covered.

 

Levy to apply on entire sale amount

  • Consideration received or receivable from e-commerce supply or services shall include
  • Consideration for sale of goods irrespective of whether the e-commerce operator owns the goods; and
  • consideration for the provision of services irrespective of whether service is provided or facilitated by the e-commerce operator.
  • This means that the entire value of goods or services would be taxed even where the goods or services are provided by a person other than the aggregator.
ABOUT LEGAL SUVIDHA

Copyright © 2019 - All Right Reserved