Tag Archives: India

Overcoming digital divide – analysis (India)

India FlagIndia’s policies towards digital regulation are inadequate. Future policy-making must be based on economic considerations and evidence, not on myopic political considerations

In 2014, the Narendra Modi-led Government came to power with an objective of ‘minimum Government, maximum governance, aimed at showcasing the country as an investment-friendly destination. Thereafter, on various occasions, the Government announced measures to boost private sector investment in the country. To its credit, several high-level policy decisions, like the Goods and Services Tax (GST) and Insolvency and Bankruptcy Code were enacted to improve the business and investment environment. However, the major test for the Modi-led Government is yet to come.

India is on the cusp of laying the foundation stone for the next digital revolution (Industry 4.0). Industry 4.0, synonymous with the digital economy, is expected to contribute one trillion dollar to national output by 2022-23. Given the undeniable potential of the digital economy to contribute outsize growth, it is incumbent on the Government to adopt a delicate, evidence-based approach to put in place an appropriate regulatory architecture that ensures the country reaps full dividends from Industry 4.0.

However, emergent policy recommendations in the past few weeks indicate that the Government is handling the nascent digital economy with a 20th century mindset. These include recommendations of the Committee of Experts, led by Justice (retd) BN Srikrishna, the draft e-commerce ‘policy’ and the draft report of the Working Group on Cloud Computing — the latter two, as reported by the media, amply illustrate the perils of a dated mindset.

For starters, the decision-making process of all the three have remained opaque and had negligible representation from private organisation, let alone investors. Therefore, the final outcome of these groups has been skewed towards one direction, while ignoring the consideration of other stakeholders, in particular investors. For instance, despite highlighting the economic cost and concomitant adverse impact on the start-up ecosystem associated with data localisation in a white paper, the final recommendation of the BN Srikrishna committee endorses the same. Similar provisions for localisation have found their way in Cloud computing recommendations as well as the draft e-commerce policy. It is important to note that storage of data in India would not mean access to that data by local entities. Additionally, such measures can exacerbate cyber-security risks by compelling enterprises to invest in increasing data storage capacity, while apportioning fewer resources to ensure adequate security controls.

Furthermore, voices for protectionism, which are reminiscent of the discourse during the 1991 reforms, are getting louder. Particularly with respect to the draft e-commerce policy, a document, which besides guiding India’s position at the international trade fora, is aimed at promoting the domestic e-commerce ecosystem. This policy will implicate all aspects of the digital economy, and have a key role to play in India’s preparation for the emergent digital revolution.

However, protectionist voices have argued that the Government should formulate different rules for foreign and domestic companies, citing that availability of abundant capital with foreign companies could kill domestic entrepreneurship.

India has come a long way from considering investments as a bail out to solve external payment crises, to recognising that investments bring with them growth and employment, and consequently make a significant contribution to the economy at large. Constant liberalisation of the foreign investment regime in the country is an example of this approach.

Nonetheless, while dealing with digital economy, a constant international best practice which is cited by protectionist voices is that of China. The question to ask is: Can India afford to adopt the Chinese approach? Currently, India’s share in global value chains (GVC) is estimated to be less than two per cent, while China’s share is in double digits. Importantly, China’s peculiar political and economic outlook makes its policies inimitable. For instance, most Chinese players in the digital economy have been supported by state-led investments.

Unlike China, India neither has the economic footprint to deter other countries from taking restrictive reciprocal measures, nor are our entrepreneurs and businesses supported by public sector finance. On the contrary, foreign capital has played a vital role in providing India’s home-grown digital companies like, Ola and Paytm, a global stage. Introducing onerous regulatory conditions and uncertainty could impact the trust of the investors in India as a promising and stable digital market, consequently damaging the image of the country as an investment-friendly destination.

Therefore, it is important that future policy-making is based on economic considerations and on evidence rather than myopic political considerations. Additionally, the need of the hour is to take a nuanced approach with respect to policies which are expected to impact India’s economic aspirations in the coming decade. Given that the 2019 Lok Sabha election are around the corner, the Modi Government will be under pressure to succumb to various protectionist demands. It should take care to avoid such pitfalls if it is to reap economic dividends in its second-term in power which it projects to win.

source: www.dailypioneer.com

Regulating a Digital Economy: An Indian Perspective

The “fourth industrial revolution” which has been characterised by end-to-end digitalisation has led to unprecedented increases in connectivity and data flows. By 2017, Asia had the largest number of internet users in the world, with 1.9 billion people online.

Joshua Meltzer, Senior Fellow, Global Economy and Development at the Brookings Institution, spoke about regulating the digital economy at a Brookings India Development Seminar on April 20, 2018.

In 2014 cross-border data flows were 45 times larger than in 2005, raising global gross domestic product (GDP) by approximately 3.5 per cent, equivalent to $2.8 trillion dollars in 2014. According to the World Bank, it is expected that a 10 per cent increase in internet penetration in the exporting country would lead to a 1.9 per cent increase in exports. In fact, in the U.S. alone internet and data use increased GDP by 3.4-4.8 per cent, as per estimates of the United States International Trade Commission.

In India, the digital economy is expected to contribute $550bn-$1tr in GDP by 2025, and add 1.5-2 million jobs by 2018 through its Digital India initiative.

The economic opportunities from technologies such as cloud computing, big data and the internet of things are also not limited to the IT sector but are economy-wide, including in sectors such as manufacturing and agriculture, Meltzer argued based on his working paper “Regulating for a digital economy: Understanding the importance of cross-border data flows in Asia”.

Over 40 per cent of India’s goods and services exports consist of software services and IT-enabled services (ITES) from financial analysis, accounting, medical transcription to the provision of applications for smartphones. Cross-border data flows remain vital for India’s exports of services.

Governments, however, are increasingly introducing measures that restrict data flows.

In order to build the digital economy, India will need to determine a fit-for-purpose regulation especially in privacy, consumer protection, intellectual property and financial regulation.

Cross-border data flow restrictions can take one of several forms, from restrictions on data being transferred outside national borders and requiring prior consent for global transfers. According to a study by Bauer et al, the cost of proposed and enacted data localisation measures in India would reduce its GDP by 0.1 per cent.

Meltzer argued that restrictions on cross-border data flows harm both the competitiveness of the country implementing the policies and other countries that rely on that data from those countries.

In India, a few examples of government regulations and rules include the Information Technology Rules (2011) that limits cross-border transfer of sensitive personal data. The National Data Sharing and Accessibility Policy (2012) which requires government data be stored in India, particularly for cloud providers. The Companies (Accounts) Rules (2014) which requires backups of financial information, if stored overseas, to be stored in India. The National Telecom M2M roadmap (2015) which requires gateways and app servers that serve Indian customers to be located in India.

Data flow restrictions are enacted with several goals in mind – from protecting citizens’ personal privacy, to ensuring national security and protecting local businesses. The capacity to move large quantities of data seamlessly and rapidly across borders can undermine domestic regulatory standards in areas such as privacy and consumer protection.

Meltzer argued that such data restrictions limit access to digital commerce networks and online resources and the ability of businesses to synthesise large data sets, on a wider scale they affect business models, reduce productivity, innovation as well as business competitiveness by forcing businesses to invest in lower quality data facilities.

So, while this wave of digitisation has massive economy wide positive impacts, data localisation could have massive economic costs, he added.

Meltzer recommended that the realisation of legitimate regulatory goals such as privacy and security must happen alongside maximising the economic and trade opportunities cross-border data flows offer. The focus for regulators needs to be using existing technologies to harness economy-wide benefits.

Robust domestic privacy laws that manage risks and maximise opportunities and the proper enforcement of security protocols through laws offer a way of ensuring data restrictions don’t negatively impact businesses and trade flows.

At the centre of all of this lies building a trustworthy environment where mutual assistance is offered and data-sharing agreements and contracts are negotiated bilaterally and multilaterally. In essence, government backdoors that erode trust in the internet must be avoided under any circumstances.

The discussants during the seminar provided unique perspectives and critiques to some of Meltzer’s arguments.

Former diplomat Asoke Mukerji spoke about how interdependent countries were when it came to data flows. He focused on how in addition to maximising the impact of data flows for economic growth, India also needs to look at data and its flow in terms of its socio-economic sustainable development goals, anchored in its inclusive “Sabka saath, Sabka vikas” policy.

The focus of data and data flows in India remains as much on the citizen as on the market, he said.

Bringing an aspect of human nature as well as the issue of the concentration of data in the hands of a few private players, Mudit Kapoor, associate professor at the Indian Statistical Institute, warned of the pitfalls of this free market of digital data flows.

He pointed out that flow of data is distinct from flow of goods and services across borders. This is largely due to the inter-relationship between industry and security concerns of each country. Given the asymmetry in data-sharing rules between companies and government agencies across the world, we are likely to over-simply the true and complex nature of international data flows by treating it like any other commodity or services.

Kapoor also highlighted the markets for fake news and the limited capacity of the governments to regulate such markets. These can have phenomenal implications on institutions in democratic countries.

Avik Sarkar, OSD of the Data Analytics Cell at NITI Aayog, spoke about the digitisation efforts of the government, giving examples of how machine-learning, artificial intelligence and big data analytics could help bring about profound impacts on policies and programmes, especially those in health and early disease prevention.

In order to build the digital economy, India will need to determine a fit-for-purpose regulation especially in privacy, consumer protection, intellectual property and financial regulation. The big push needs to be from the top, ensuring governments at all levels – national, state and local — go digital and consider the delivery of services through digital technologies.

Overall the vibrant debate on this forum and many alike on cross-border data flows in India remains a part of a larger global discussion on the need for an international framework to provide predictability, security and stability of cyberspace.

source:www.brookings.edu

Tax Department’s Consultation On Digital Taxation May End Up Being An Academic Exercise, Experts Say

taxationTechnology giants like Facebook, Google, Amazon, Alibaba and other such digital companies derive considerable value from a large user base. For instance, some digital companies sell user data for targeted advertising. It’s this value that nations now want to tax.

Europe, for instance, has proposed a tax on turnover. Australia is mulling a tax on digital advertising. Singapore has announced a sales tax on digital services, starting 2020. India isn’t far behind either.

Digital advertising on foreign platforms is already under the tax net, also known as the equalisation levy. But now, India now wants to tax the business profits of digital companies, for which the taxman has reached out to various stakeholders for consultation. Experts told BloombergQuint the move will run into two problems: attribution of profits among countries i.e. who can tax how much, and treaty troubles.

Digital Services: What Gets Taxed?

Two years ago, the government imposed a 6 percent tax on digital advertising, which is attracted when an Indian resident or a non-resident with a fixed place of business in the country advertises online with a service provider with no permanent establishment in India. Permanent establishment is, in tax parlance, a fixed place of business. The levy is applicable if the transaction value exceeds Rs 1 lakh in a financial year. Reportedly, this levy has added close to Rs 3,000 crore to tax collections in the last two years.

Equalisation levy is applicable on advertising revenues and the administration of it has been smooth in the last two years, Sudhir Kapadia, partner and national tax leader at EY India, told BloombergQuint. It’s a tax on business-to-business transactions and the law has ensured there’s no double taxation, he said.

There is no income tax in the hands of a non-resident once the equalisation levy is discharged. So, it is a proxy for any kind of income tax liability that can be levied on the company concerned.Sudhir Kapadia, Partner, EY India

What About B2C Transactions?

Enter, Significant Economic Presence. In budget 2018, the government proposed to get its fair share of tax from business-to-consumer transactions by introducing the concept of significant economic presence. According to the finance minister, the idea is to tax profits of those digital businesses that don’t have a physical presence in India but derive significant economic value from the country.

India’s belief is that we follow strict source-based rules of taxation; our domestic law and treaty definitions of permanent establishment have lost their relevance because of the digital invasion, Mukesh Butani, managing partner at BMR Legal, said.

A lot of foreign luxury goods and garment manufacturers don’t have a physical presence in India. You can use an Amazon platform and order those goods, or you can go to the company’s website and order. But you can’t tax those activities in India, assuming they don’t have presence here. Under this significant economic presence, such activities will come under the tax net.

Mukesh Butani, Managing Partner, BMR Legal

What Does The Tax Department Want To Know?

In one word, thresholds. The department has asked for consultation on:

  • Revenue threshold of transactions with respect to physical goods or services carried out by a non-resident in India.
  • Revenue threshold of transactions pertaining to digital goods or services or property, including the provision of download of data or software.
  • Threshold for number of “users” with whom systematic and continuous soliciting of business activities is done through digital means.

To begin with, the phrase used in our law is significant economic presence and not just digital presence as is the case in Europe, Kapadia said. The first element on which consultation is sought is about transactions involving physical goods and so, our approach is far more overarching, he added.

The budget memorandum only talked about digital economy, but this would include all transactions of import of goods, which currently attract only customs duty. For example, EPC contracts, manufacturing, supplies from vendors etc who do not have a presence in India.

Sudhir Kapadia, Partner, EY India

If India is determined to bring this, revenue threshold for digital goods and services and user threshold can be akin to what the E.U. has proposed, he said.

Europe has proposed a three percent tax on businesses with E.U. digital revenues of over 50 million euros and total global revenues of over 750 million euros. Revenues derived from online advertising, sale of user data and online marketplaces will attract this levy.

So, What’s The Problem?

The first is profit attribution. Or, how should governments determine the revenue attributable to digital activities in their country.

It’s going to be very difficult for India or any other country to ascertain this since the conventional principles of permanent establishment won’t apply to digital businesses, Kapadia said. He explained that data about users in other countries, revenues collected in other countries arising from that user data isn’t easy to get despite the exchange of information arrangements.

 Currently, India has two provisions for attribution. Rule 10 of the Income Tax Rules which essentially says that revenues from India divided by global revenues multiplied by global profits should be the taxable base in India. This, in a brick-and-mortar space, poses enough challenges. It would be impossible to apply this principle in a digital business. Second is the arm’s length principle under transfer pricing. That can’t be the answer either since the entire functions, contractual and legal risks are outside of India in the digital business context.

Sudhir Kapadia, Partner, EY India

The second issue would be tax treaties. If the treaty problem isn’t addressed, this consultation will just be an academic exercise, Butani said.

When the law was passed in Budget 2018, it clearly said India is proposing this law in order to be prepared for the changes that occur in double-tax treaties, Butani said. This subordinate legislation that the department is proposing won’t be useful in situations where the non-resident tax payer is from a country that has a tax treaty with India, he added.

The definition of permanent establishment under the tax treaties don’t contemplate digital transactions. The only way is to amend the treaties using the multilateral instrument tool proposed by the Organisation for Economic Co-operation and Development. But if the treaty partner hasn’t signed up to MLI, the provision under the domestic law won’t help.

Mukesh Butani, Managing Partner, BMR Legal

You’re looking at a scenario where some treaties will trigger a digital permanent establishment and some treaties won’t, he said. So, how will a change in the domestic law affect the taxable position under these treaties, he added.

India:Google tax may be broadened to cover non-digital MNCs

India FlagMUMBAI: A budgetary proposal to tax multinationals with a substantial user base in India such as Google and Facebook is now being widened to include non-digital companies.
This could mean that any company that merely sells goods or services in India could see domestic taxes of up to 42% on their profits, said two people with direct knowledge of the matter.

The government is planning to introduce rules to effect the change proposed in the budget in the coming weeks, said one of the persons quoted above.
Many tax experts fear this could impact several multinational companies that only export goods or services to India.

“The question is whether there is a tax to do business with India. If non-digital companies that merely trade with India could see their business connection/permanent establishment set in India slapped with domestic taxes, this could lead to unsettling of settled tax positions,” said , partner, Ashok Maheshwary & Associates LLP.

According to another person with direct knowledge of the matter, the impact on non-digital companies is unintentional.

Source:https://economictimes.indiatimes.com