1 B. Michel, ‘The French Crusade to Tax the Online Advertisement Business:
Reflections on the French Google Case and the Newly Introduced Digital
Services Tax,’ 59 Eur. Taxn. 11 (2019), Journal Articles & Papers IBFD
(accessed 28th January 2020)
2 Ibid
Recognising the need of the hour and the significance of the issues relating to the taxation of the digital economy, the Finance Ministry constituted the Committee on Taxation of E-commerce. It consisted of members of the Department of Revenue, representatives of some professional bodies, representatives from industry and other professionals, expert in the field. The Committee examined the Action 1 Report as well as the literature from several well-known authors on the subject and released its proposal in February, 2016.
The Finance Act, 2016 introduced the provisions of EL OAS. Unlike the SEP provisions and the extended source rule, the EL OAS (as well as EL ESS) is not a part of the Income-tax Act, 1961 (‘ITA’). EL OAS applies on specified services rendered by non-residents to a person resident in India or to a non-resident having a Permanent Establishment (‘PE’) in India. Specified service for the purpose of EL OAS has been defined in section 164(i) of the Finance Act, 2016 as follows:
‘“specified service” means online advertisement, any provision for digital advertising space or any other facility or service for the purpose of online advertisement and includes any other service as may be notified by the Central Government in this behalf.’
Under the EL OAS provisions, a person resident in India or a non-resident having a PE in India shall deduct EL at the rate of 6% on payment for specified service to a non-resident if it satisfies the following conditions:
a. The service rendered is not effectively connected to a PE of the non-resident service provider;
b. The payment for the specified service exceeds INR 100,000 during the previous year; and
c. The payment is in respect of the specified services utilised in respect of a business or profession carried out by the payer.
Therefore, the EL OAS applies only in respect of Online Advertisement Services or any facility or service for the purpose of online advertisement. Further, EL OAS provisions place the onus of responsibility of collection of the levy on the payer being a resident or on the payer being a non-resident having a PE in India.
While there are various issues and intricacies in relation to the EL OAS, we have not covered the same as the objective of this article is to cover the EL ESS provisions and the issues arising therefrom. However, some of the common issues, such as whether EL provisions are restricted by a tax treaty, have been covered in the second part of this two-part article.
3. EQUALISATION LEVY ON E-COMMERCE SUPPLY OR SERVICES
3.1 Scope and coverage
The Finance Act, 2020 extended the scope of EL to cover consideration received by non-residents on E-commerce Supply or Services (‘ESS’) made or facilitated on or after 1st April, 2020.
EL ESS applies at the rate of 2% on the consideration received by a non-resident on ESS, which has been defined in section 164(cb) of the Finance Act, 2016 to mean:
(i) Online sale of goods owned by the e-commerce operator; or
(ii) Online provision of services provided by the e-commerce operator; or
(iii) Online sale of goods or provision of services, or both, facilitated by the e-commerce operator; or
(iv) Any combination of activities listed in clauses (i), (ii) or (iii).
Further, the Finance Act, 2021 has also extended the definition of ESS for this clause to include any one or more of the following online activities, namely,
(a) Acceptance of offer for sale; or
(b) Placing of purchase order; or
(c) Acceptance of the purchase order; or
(d) Payment of consideration; or
(e) Supply of goods or provision of services, partly or wholly.
Moreover, EL ESS applies for consideration received or receivable by a non-resident in respect of ESS made or provided or facilitated by it to the following persons as provided in section 165A(1) of the Finance Act, 2016 as amended by the Finance Act, 2020:
(i) A person resident in India; or
(ii) a person who buys such goods or services, or both, using an internet protocol (IP) address located in India; or
(iii) a non-resident under the following specified circumstances:
a. sale of advertisement which targets a customer who is resident in India, or a customer who accesses the advertisement through an IP address located in India;
b. sale of data collected from a person who is resident in India, or from a person who uses an IP address located in India.
Further, the provisions of EL ESS shall not apply in the following circumstances:
(i) Where the non-resident e-commerce operator has a PE in India and the ESS is effectively connected to the PE;
(ii) Where the provisions of EL OAS apply; or
(iii) Whether the sales, turnover, or gross receipts of the e-commerce operator from the ESS made or provided or facilitated is less than INR 2 crores during the previous year.
Lastly, section 10(50) of the ITA provides an exemption from tax on the income which has been subject to EL OAS and EL ESS.
3.2 Non-resident
EL ESS applies in respect of consideration received or receivable by a non-resident from ESS made or provided or facilitated. The term ‘non-resident’ has not been defined in the Finance Act, 2016.
However, section 164(j) of the Finance Act, 2016 provides that words and expressions not defined in it but defined in the ITA shall have the meanings assigned to them in the Finance Act, 2016 as well. In other words, in respect of undefined words and expressions, the meaning as ascribed in the ITA would apply here as well.
Accordingly, one would import the meaning of the term ‘non-resident’ from section 2(30) read with section 6 of the ITA.
3.3 Online sale of goods
The EL ESS provisions apply in respect of ESS which has been defined in section 164(cb) of the Finance Act, 2016 as provided in paragraph 3.1 above. Accordingly, EL ESS applies in respect of consideration on online sale of goods made or facilitated by a non-resident. The term ‘online sale of goods’ has not been defined in the Finance Act, 2016 and therefore some of the issues in respect of various aspects of the term have been provided in the paragraphs below.
3.3.1 What is meant by ‘online’
The first condition in respect of the term ‘online sale of goods’ is that the goods have to be sold ‘online’. The term ‘online’ has been defined in section 164(f) of the Finance Act, 2016 to mean the following,
‘…a facility or service or right or benefit or access that is obtained through the internet or any other form of digital or telecommunication network.’
Therefore, the term is wide enough to cover most types of transactions undertaken through means other than physically. Thus, goods sold through a website, email, mobile app or even through the telephone would be considered as sales undertaken ‘online’.
3.3.2 What is meant by ‘goods’
The term ‘goods’ has not been defined in the Finance Act, 2016 or in the ITA. Therefore, the question arises as to whether one can import the term from the Sale of Goods Act, 1930 (‘SOGA’).
Section 2(7) of the SOGA provides that
‘“goods” means every kind of movable property other than the actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before the sale or under the contract of sale;’
On the other hand, section 2(52) of the Goods and Services Tax Act, 2017 (‘GST Act’) refers to a different definition of the term as follows,
‘“Goods” means every kind of movable property other than money and securities but includes actionable claims, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before supply or under a contract of supply.’
The issue in this regard is whether one should consider the definition of the term under the SOGA or the GST Act, with the major difference in the definition under both the laws being that SOGA includes shares and stock as ‘goods’, whereas the GST Act does not do so. This issue is relevant while evaluating the applicability of the EL ESS provisions to the sale of shares and stock. While an off-market sale of shares may not trigger the EL provisions as there may be no consideration paid or payable to an e-commerce operator, one may need to evaluate whether the provisions could apply to a transaction undertaken on an overseas stock exchange (assuming that the overseas stock exchange is considered as an e-commerce operator).
In the view of the authors, it may be advisable to consider the definition under SOGA as this is the principal law dealing with the sale of goods, whereas the GST Act is a law to tax certain transactions. In other words, the transaction of sale of shares and stock on a stock exchange may be considered as an online sale of goods and may be subject to the provisions of EL provided that the stock exchange satisfies the definition of ‘e-commerce operator’ and other conditions are also satisfied. An analysis of whether an overseas stock exchange would be considered as an ‘e-commerce operator’ has been undertaken in paragraph 3.5.3 below.
However, in respect of an aggregator for booking hotel rooms or a hotel situated outside India providing online facility for booking hotel rooms, it would not be considered as undertaking or facilitating sale of goods as rooms would not be considered as ‘goods’. The issue of whether the said facility would constitute a covered provision of services for the application of the EL provisions in respect of booking of hotel rooms is discussed in subsequent paragraphs.
3.3.3 What is meant by ‘online sale of goods’?
Having analysed the meaning of the terms ‘online’ and ‘goods’, the crucial aspect that one may need to consider is whether the ‘sale’ of the goods has been undertaken online as the EL ESS provisions refer to consideration received or receivable for online ‘sale’ of goods made or facilitated by the non-resident e-commerce operator. This term has been generating a lot of confusion and uncertainty as one needs to understand as to whether the goods have been sold online. In other words, the issue that needs to be addressed is whether the EL provisions could apply in a situation where the goods are sold online but the delivery of the goods is undertaken offline.
In this regard, section 19 of the SOGA provides,
‘(1) Where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.’
Therefore, SOGA provides that the title in the goods is transferred when the parties to the contract intend it to be transferred. Moreover, the terms and conditions of various e-commerce sites provide that the risk of loss and title passes to the buyer upon delivery to the carrier.
Hence, one could possibly argue that in such situations there is no online sale of goods made or facilitated by the e-commerce operators which merely facilitate the placement of the order for the said goods, and therefore the provisions of EL do not apply.
One could also take a similar view in the case of certain sites which offer e-bidding services for the goods.
However, this issue has been covered in the Finance Act, 2021 with retrospective effect from 1st April, 2020 wherein it has been provided that for the purpose of the definition of ESS, ‘online sale of goods’ shall include any one or more of the following online activities (‘extended activities’):
a. Acceptance of offer for sale; or
b. Placing of purchase order; or
c. Acceptance of the purchase order; or
d. Payment of consideration; or
e. Supply of goods or provision of services, partly or wholly.
Therefore, now, if any of the above activities are undertaken online, the transaction may be considered as ESS and may be subject to the provisions of EL (refer to the discussion in paragraph 3.5 as to whether the definition of e-commerce operator is satisfied in case the non-resident only undertakes the above activities online).
3.4 Online provision of services
The provisions of EL ESS apply in case of online sale of goods or online provision of services. Having analysed some of the nuances regarding the online sale of goods, let us now consider some of the nuances of online provision of services. Generally, the applicability of EL ESS to online provision of services may pose complexities which are significantly higher than those related to online sale of goods.
Some of the issues have been explained by way of an example in two scenarios.
(Scenario 1) Let us first take the example of a person resident in India booking a room in a hotel outside India (the ‘Hotel’), owned and managed by a non-resident, through its website. Let us assume that payment for the booking of the room is made immediately on booking itself. Now, the question arises whether the said transaction would be considered as an online provision of services by the Hotel and whether the provisions of EL would apply on the same.
The first question is whether there is any sale of goods or provision of services. Arguably, the renting out of rooms may be considered as a service rendered by the Hotel. Now, the question is whether any service is rendered online.
In this case, one may be able to argue, and rightfully so, that the service rendered by the Hotel of rental of rooms is not provided online but is rendered offline and, therefore, this is not a case of online provision of services. However, it is important to note that the Hotel is also providing a facility for booking the rooms online, which in itself is a service, independent of the rental of the rooms. This booking service is rendered online and, therefore, may be considered as an online provision of service by the Hotel to the person resident in India.
On the other hand, one may be able to argue that no consideration is received by the Hotel for providing the online facility and that the entire consideration received is that for the letting out of the rooms (this may be the case, for example, if the rate for the rooms is the same irrespective of whether booked online or directly at the hotel). In such a case, one may be able to argue that in the absence of consideration received or receivable, the provisions of EL cannot apply. Further, even if one were to counter-argue that the consideration received towards the rental of the room includes consideration towards providing the service of provision of online booking and the same can be allocated on some scientific basis, the dominant nature of the activities for the composite service is that of letting out of the hotel room, which is not provided online. Accordingly, in the view of the authors, the provisions of EL shall not apply in such a scenario.
(Scenario 2) Let us now take the same example wherein a person resident is booking a room in a hotel, situated outside India, but the same is booked through a room aggregator called ABC. Let us further assume that the entire consideration for the room is paid by the customer to ABC at the time of booking and then ABC, after deducting its commission or fees, pays the balance amount to the hotel.
Now, the first question to be evaluated here is whether the service rendered by ABC falls under sub-clause (ii) or (iii) of section 164(cb) of the Finance Act, 2016. Sub-clause (ii) of section 164(cb) refers to online provision of services by the e-commerce operator, whereas sub-clause (iii) of section 164(cb) refers to facilitation for online provision of services.
One may take a view that given that there is a specific clause relating to facilitation, which is what is provided by the aggregator ABC, one should apply sub-clause (iii). However, the said sub-clause applies only in respect of facilitation of online provision of services and the services which are being facilitated are in respect of letting out of the rooms of the hotel which are not rendered online. Therefore, the provisions of sub-clause (iii) may not apply.
Alternatively, one could argue that the service rendered by ABC is through an online facility and therefore it would fall under sub-clause (ii) relating to online provision of services. In such a case, the question arises whether the service is rendered to the customer booking the room or to the hotel. In case the service is considered as rendered to the hotel, the provisions of EL may not apply as it may be considered as a case of services rendered to a non-resident. However, in the view of the authors, the service rendered by ABC, of facilitating the letting out of the rooms of the hotel, is a service rendered by ABC to both, to the hotel and the customer who is booking the rooms. This would be the case even though the commission / fees for the services rendered by ABC is paid for by the hotel and the customer is not aware of the commission payable to ABC for facilitation out of the total amount paid by her.
3.5 E-commerce operator
Having analysed some of the issues relating to online sale of goods or online provision of services, this paragraph covers some issues in respect of the e-commerce operator.
3.5.1 Who is considered as an e-commerce operator?
An e-commerce operator is defined in section 164(ca) of the Finance Act, 2016 to mean the following:
‘“E-commerce operator” means a non-resident who owns, operates or manages digital or electronic facility or platform for online sale of goods or online provision of services, or both;’
Therefore, in order for a non-resident to be considered as an e-commerce operator, the following cumulative conditions are required to be satisfied:
a. There should be a digital or electronic facility or platform; and
b. The said facility or platform should be for online sale of goods or online provision of services, or both; and
c. The non-resident should own, operate or manage the said facility or platform.
3.5.2 Will sale of goods or providing services via e-mail be subject to the provisions of EL?
The biggest concern most non-residents were facing at the time of the introduction of the EL ESS provisions was whether the sale of goods concluded over exchange of emails could be subject to the provisions of EL ESS.
If such a transaction were to be covered under the provisions of EL ESS, there could be major repercussions for a lot of MNCs as a lot of intra-group transactions are undertaken over email. The confusion increased significantly after the amendments undertaken in the Finance Act, 2021 wherein the definition of ‘online sale of goods’ or ‘online provision of services’ has been extended to include acceptance of offer, placing of purchase order, acceptance of purchase order, payment of consideration, etc.
In this case, while ‘email’ may be considered as an online facility, the seller of the goods is not operating, owning or managing the email facility which is managed by the IT company (such as Microsoft or Google). Further, even if one considers that the seller is operating the facility, it is a facility for communication and it is not a facility for online sale of goods or for online provision of services. Moreover, it is important to highlight that there is a difference in the operation of the facility or platform and the operation of an account on the platform. Therefore, if one is operating an email account, it may not be appropriate to contend that one is operating the entire facility.
Accordingly, in the view of the authors, the transactions undertaken through email may not be subject to EL ESS as the seller of goods over exchange of emails may not come within the definition of ‘e-commerce operator’.
This would also be the case for services rendered through email, say an opinion given by a foreign lawyer to a client on email. In such a scenario, the lawyer cannot be considered as an ‘e-commerce operator’.
The absurdity of considering transactions undertaken through email as subject to EL is magnified in the case of transactions undertaken through a telephone. As telecommunication is considered as an online facility u/s 164(f) of the Finance Act, 2016, would one consider goods ordered through a telephone as being subject to the provisions of EL?
In this regard, it may be highlighted that even if one takes a view as explained in paragraph 3.5.4 below that the extended activities list should also apply to the definition of ‘e-commerce operator’, the argument that email is a facility or platform for communication and not for online sale of goods or provision of services, including the extended activities, should hold good.
Similarly, in the case of teaching services rendered online by universities, or conferences organised by various organisations online, the question arises whether the said services rendered by the universities or the organisations could be subject to the provisions of EL ESS. If the platform through which the services are rendered is owned, operated or managed by the university or organisation, such entities may be considered as e-commerce operators, and therefore the fees received by them may be subject to the provisions of EL ESS. However, if these entities are merely using the platform or facility owned and managed by a third party and only operate as users of the platform, then such entities cannot be considered as owning, managing or operating the facility or platform but merely operating or managing an account on the platform. In such cases, they may not be considered as e-commerce operators and the consideration received by them shall not be subject to the provisions of EL.
3.5.3 Will sale of shares on a stock exchange be subject to the provisions of EL?
As evaluated in paragraph 3.3.2 above, ‘shares’ may be considered as ‘goods’. Further, the platform through which the sale is undertaken in most overseas stock exchanges could be considered as an online facility as it would be undertaken through the internet, digital or telecommunication network. Now the question arises whether the platform is for the purpose of online sale of goods, the answer to which would be in the affirmative.
Therefore, if the platform or facility is owned, operated or managed by the overseas stock exchange, the non-resident owning the overseas stock exchange may be considered as an ‘e-commerce operator’ and the transaction may be subject to the provisions of EL.
3.5.4 Can a transaction be subject to EL only because the payment of consideration is undertaken online?
In this regard an interesting point to note is that while the terms ‘online sale of goods’ and ‘online provision of services’ have been extended to include certain online activities as provided in the Explanation to section 164(cb) (extended activities), the terms are provided in two clauses in section 164, namely:
a) Clause (ca) of section 164 defining the term ‘e-commerce operator’ wherein the facility or platform is for online sale of goods or online provision of services, or both.
b) Clause (cb) of section 164 defining the term ESS which means online sale of goods or online provision of services made or facilitated by the e-commerce operator.
The Finance Act, 2021 extended the terms ‘online sale of goods’ and ‘online provision of services’ only in respect of clause (cb), dealing with definition of e-commerce supply or services and not in clause (ca). The Explanation to clause (cb) provides as follows,
‘For the purposes of this clause “online sale of goods”…..’
Further, the definition of the term ‘e-commerce operator’ in clause (ca) does not include the term ‘e-commerce supply or services’ which is defined in clause (cb). Therefore, on a literal reading of the language, one may be able to argue that for a non-resident to be considered as an e-commerce operator, the sale of goods or the provision of services needs to be undertaken online. Moreover, the provisions of EL ESS may not apply in a scenario where only the extended activities are undertaken online without the actual sale of goods or provision of services undertaken online as the extended definition of the term ‘online sale of goods’ or ‘online provision of services’ applies only for the definition of ESS and not for an e-commerce operator.
While this is a literal reading of the provision, the above view may be extremely litigious and may not be accepted by the courts as it may result in the above amendment in the Finance Act, 2021 being made infructuous and would be against the intention of the Legislature.
However, if one takes a view that the extended activities would apply even to the definition of ‘e-commerce operator’ and therefore can result in the application of the EL ESS provisions, it may result in a scenario where EL ESS provisions could possibly apply even when none of the activities of the provision of services or sale of goods is undertaken online but only the payment is done online.
Let us take the earlier example of a foreign lawyer rendering advisory services over email to an Indian client, who would make the payment online through an app operated by a non-resident. In this regard, as discussed in paragraph 3.5.2, as the lawyer would not be considered as an ‘e-commerce operator’, the transaction may be subject to EL ESS as one of the extended activities, i.e., payment of consideration is undertaken online and the e-commerce operator is providing an online service of facilitating the payment. However, in this case the e-commerce operator would be the non-resident operating the app through which the payment is made and not the lawyer.
3.5.5 Can there be multiple e-commerce operators for the same transaction?
If one takes a view that the extended activities shall apply to the definition of ‘e-commerce operator’ as well, the question arises whether there can be multiple e-commerce operators for the same transaction?
One can evaluate this with an example. Let us consider a scenario where the goods of ABC, a non-resident, are sold through its website and the payment for the goods is done by the resident customer through a payment gateway, owned by XYZ, another non-resident. In this case, both ABC and XYZ would be considered as e-commerce operators. Further, the same amount may be subject to EL in the hands of multiple e-commerce operators. Continuing the above example, the consideration paid by the resident customer to ABC through the payment gateway would be subject to EL ESS. Further, if one considers that the payment gateway of XYZ has rendered services to both, the resident customer as well as ABC, the consideration received by XYZ from ABC would also be subject to EL ESS as it is consideration received by an e-commerce operator for services rendered to a resident.
3.6 Amount on which EL to be levied
EL ESS applies on consideration received or receivable by an e-commerce operator from ESS. The ensuing paragraphs deal with some of the issues in respect of consideration.
3.6.1 Whether EL to be applied on the entire amount
One of the key issues that require to be addressed is what would be the amount which would be subject to EL. The issue is explained by way of an illustration.
Let us take an example wherein goods are sold online by the e-commerce operator. Further, while the sale of the goods is concluded online, the e-commerce operator does not own the goods but merely facilitates the online sale of the goods. Let us assume that the price of the goods is 100 and the commission of the e-commerce operator is 15. In this scenario, the e-commerce operator may receive 100 from the Indian buyer of the goods and transfer 85 to the seller of the goods after retaining its fees or commission. The question which arises is, as EL is applicable on the consideration received, would the EL apply on the 100 received by the e-commerce operator, or would it apply on the 15 which is the income earned by the e-commerce operator?
Earlier, one could take a view that the EL ESS provisions seek to tax the e-commerce operator and the consideration is compensation paid to the e-commerce operator for his services and, therefore, the EL ESS provisions should apply on the 15 and not the entire 100. Another argument for this view was that the 85 received by the e-commerce operator does not belong to it and by the principles of diversion of income by overriding title, one can argue that the amount of 85 is not consideration which is subject to EL ESS.
However, the Finance Act, 2021 has provided, with retrospective effect from 1st April, 2020, that the consideration which is subject to EL ESS would include the consideration for sale of goods irrespective of whether or not the goods are owned by the e-commerce operator. Therefore, in the above example, now the entire 100 would be subject to EL ESS.
This may result in a scenario wherein offshore sale of goods, not sold through an e-commerce operator or facility, would not be subject to tax in India on account of the decision of the Supreme Court in the case of Ishikawajima-Harima Heavy Industries Ltd. (2007) 288 ITR 408, goods sold through an e-commerce operator would now be subject to EL on the entire amount.
Further, this may result in various practical challenges as the margin of the e-commerce operator may not be sufficient to bear the levy on the entire consideration received.
3.6.2 Consideration received in respect of sale of goods by a resident
When the EL ESS provisions were introduced for F.Y. 2020-21, the provisions of section 10(50) of the ITA provided an exemption to any income arising from ESS which has been subject to EL ESS.
The provisions did not specify to whom the exemption belonged. Therefore, one could possibly take a view that if a resident is selling goods through a non-resident e-commerce operator and the entire consideration for the sale of goods is subject to EL ESS, the exemption u/s 10(50) would exempt the income of the resident seller as well. This is due to the fact that while the consideration is changing hands twice – once from the customer to the e-commerce operator and then from the e-commerce operator to the resident seller – there is only one transaction, sale of goods by the resident seller to a resident buyer through the e-commerce operator.
On the other hand, there was concern that if the resident seller is taxed on the income and the exemption u/s 10(50) does not apply, it could result in double taxation for the same transaction.
The Finance Act, 2021 has amended the provisions of the Finance Act, 2016 with retrospective effect from 1st April, 2020 to provide that the consideration which is subject to EL ESS shall not include the consideration towards the sale of goods or the provision of services if the seller or service provider is a resident or is a non-resident having a PE in India and the sale or provision of services is effectively connected to the PE.
Therefore, in such a situation now, only the consideration as is attributable to the e-commerce operator would be subject to EL ESS.
3.6.3 Levy on consideration received by e-commerce operator
It is important to highlight that for the EL ESS provisions to apply, consideration needs to be received or receivable by the e-commerce operator. While the amendment in the Finance Act, 2021 extends the coverage of the term ‘consideration’ to include the consideration for the sale of goods as well (100 from the example in paragraph 3.6.1), the extended scope would apply only if the entire consideration is received by the e-commerce operator. Therefore, even after the amendment, if the entire consideration (100 in the example used in paragraph 3.6.1) is paid by the buyer directly to the non-resident seller, who pays the fees or commission to the e-commerce operator, EL ESS shall apply only on the amount of commission or fees received by the e-commerce operator (15). This is due to the fact that EL ESS applies on consideration received or receivable by the e-commerce operator, and if the e-commerce operator does not receive the entire consideration for the sale of goods or provision of services but only receives a sum as facilitation fees or commission, EL ESS shall apply only on the portion received by the e-commerce operator.
4. CONCLUSION
Due to the absence of the Memorandum at the time of introduction of the EL ESS provisions, a lot of ambiguity and confusion exists in respect of various aspects. While the Finance Act, 2021 has made certain amendments with retrospective effect in order to clarify certain issues, the ambiguity in various other aspects continues to exist. In the next part of this two-part article, we shall seek to cover various other issues in respect of the EL ESS such as issues relating to residence and the situs of the consumer, issues relating to the turnover threshold, issues relating to the sale of advertisement and the sale of data, interplay of the EL ESS provisions with various other provisions such as the SEP provisions, EL OAS provisions, royalty / FTS and section 194-O of the ITA.
