Press Note 3 of 2016 issued by the Department of Industrial Policy and Promotion (DIPP) has had a mixed reception – e-commerce companies have largely remained silent, while some ‘brick and mortar’ retailers have welcomed the prohibition on influencing the price of goods amongst others. We believe that pending litigation and consultations with stakeholders have led the Government to issue the press note at this stage. A clear indication of this can be seen from the conditions attached to the liberalization, e.g. prohibition on influencing of sale price, restriction on exercise of ownership over inventory, cap on the percentage of sales from one vendor or its group companies, all cumulatively intended to ‘maintain level playing field’. While the issues raised in the pending litigation are largely addressed by the new conditions, the ambiguity and applicability thereof, is prone to further controversy and possibly, further litigation.
Today’s Business Standard has published some comments in this regard (excerpted below), authored by Satyajit Gupta, Principal - Corporate/ M&A, Advaita Legal along with his colleague Sudipta Bhattacharjee, Principal - Tax Controversy Management.
Opening up a marketplace of controversy
Government norms allowing FDI in e-commerce marketplace have left the industry divided. Legal and tax experts share their insights on how the guidelines will influence the existing court cases, and tax-related litigation.
Will impact valuation of goods: Satyajit Gupta
Press Note 3, that lays out the rules on FDI in e-commerce for marketplace model, essentially re-states the obvious - that FDI is not permitted in multi-brand B2C e-commerce. The 'silver lining' is the unambiguous recognition (for accessing FDI) granted to e-commerce companies engaged in the 'marketplace' model, i.e. those players who do not own the inventory of goods, and merely provide the IT platform for buyers and sellers to transact, though it comes with strings attached.
Impact on the pending litigation
Impact on the pending litigation
The litigation before the Delhi High Court hinges on the argument advanced by 'brick and mortar' retailers that the 'marketplace' model of B2C e-commerce is nothing but multi-brand B2C retail by using complex and convoluted business structures; the contention being that the FDI regime in relation to multi-brand retail should apply to such e-commerce entities. The petitioners have alluded to the fact that sales of products by such e-commerce companies have been treated as retail sales by governments for taxing such transactions, to bolster their contention that this is retail trade in substance.
Does the press note dilute the stand of marketplace players in relation to indirect tax litigation?
They do not. In fact, they go a long way in strengthening the stand taken by e-commerce companies in litigation with state VAT authorities that they are pure service providers. As regards litigation under State entry tax laws, it may not have any direct impact on such litigation as the main challenge there is relating to the constitutional validity of entry tax provisions. The perceivable impact, which may arise on e-commerce companies, is in relation to the valuation of goods which would be subject to entry tax - given the restriction against 'directly or indirectly influence the sale price of goods or services'. Since entry tax was leviable on the value at which the goods were imported after factoring in any discount, the prohibition on influencing the price is now likely to result in entry tax being levied on the value at which goods are sold by the seller without factoring in any discount. This aspect would need to be examined further in pricing strategies.