India Entry & Business Startup Consultings

Virtual Digital Assets: Meaning, Taxation and Legal Analysis

Virtual Digital Assets: Meaning, Taxation and Legal Analysis

As the world witnesses a transition to Web 3.0 technology, blockchain-based assets are the assets of the future. The government introduced the concept of virtual digital assets representing the class of digital assets that are primarily based on blockchain technology. It includes cryptocurrencies, Non-Fungible Tokens (NFTs), etc.

The Finance Bill, 2022 created a buzz among the public by introducing various provisions addressing virtual digital assets. These were followed by certain amendments that were carried out in the bill. However, before jumping to the provisions, let’s understand what are virtual digital assets and their inclusions into the same.

What are Virtual Digital Assets?

The meaning of virtual digital assets is introduced by inserting a definition under section 2(47A) of the Income Tax Act, 1961.

In layman’s language, virtual digital assets are assets in electronic form that are generated through cryptographic means. Blockchain technology is the primary medium through which they are created and stored. Let’s understand what is blockchain and examples of virtual digital assets:

  • Blockchain: Blockchain is the technology behind virtual digital assets. It is a storage method whereby the data is stored in blocks in a decentralised manner such that no person can exercise control over the data. Under the blockchain method, a chain of blocks is formed in chronological order such that the data stored in the previous blocks cannot be altered, modified or deleted. As data increases, new blocks are created in the chain.

Examples of virtual digital assets are:

  • Non-Fungible Tokens: Non-fungible tokens, popularly known as NFTs, include any digital art, text, video, images, etc. brought and sold in the digital world. This also includes in-game items as well as virtual real estate.
  • Cryptocurrency: Cryptocurrency is the virtual currency through which you can transact in the virtual world. It is an entirely decentralised non-tangible form of currency stored on public ledgers in the blockchain. Some of the most common cryptocurrencies include Bitcoins, Ethereum, etc.

Laws governing Virtual Digital Assets (VDAs)

One of the key concerns that revolved around virtual digital assets is that they were unregulated. Therefore, in a bid to track the transactions associated with VDAs, the Government of India introduced various provisions for virtual digital assets in Budget 2022. Following are the key provisions of Finance Bill 2022 including the amendments that were proposed thereafter in the bill:

1) Income Tax: The Government proposed the insertion of Section 115BBG under the income tax act. The section states the following:

  • The income from the transfer of VDAs shall be taxable @ 30%. The definition of transfer, as provided under Section 2(47) shall be applicable whether or not the VDA is held as a capital asset. This implies that section 115BBH shall be applicable whether the income is computed as capital gains, business income, or other income. 
  • No deduction for any expenditure, except the cost of acquisition, shall be allowed against the income from VDAs. Even if there is no cost of acquisition, section 115BBH shall apply and the income shall be taxable. Also, no loss incurred by the taxpayer (e.g., business loss, house property loss, etc.) can be set off against the income from VDAs.
  • The loss arising from VDAs cannot be set off against any income earned by the taxpayer (e.g., business income, salary income, etc.). This also includes the income from VDAs itself. This implies that loss arising from one VDA cannot be set off against income from any other VDA. Also, such loss shall not be carried forward in the succeeding assessment years.

2) TDS: The Finance Bill, 2022 proposed the insertion of Section 194S that mandates TDS on virtual digital asset transactions. As per Section 194S:

  • TDS @ 1% shall be deducted when any person makes a payment to the resident person as against transfer of VDA. The deduction shall be made at the time of credit of such sum to the account of the resident or at the time of payment by any mode, whichever is earlier.
  • In case the payment is made in kind or partly in cash and partly in kind (including the exchange of one VDA with another VDA), the payer should ensure that the tax has been deducted and paid in respect of such transaction.
  • Section 203A (requirement of TAN number for deducting TDS) and 206AB (Deduction of TDS at a higher rate for non-filers of ITR) shall not be applicable.
  • In case the amount paid is credited to the ‘suspense account’ or any other account of the person liable to pay such sum, then it shall be deemed that the sum has been credited to the account of the payee and the TDS provisions shall apply accordingly.
  • In case the transaction of VDA is liable to TDS under section 194-O as well (Payments by e-commerce operators to the e-commerce participants), then TDS shall be deducted under this section and not 194-O.

However, except for Section 194-O, the deduction and collection of tax can be made under any other section simultaneously with section 194S. For instance, if a person receives contract income (liable to TDS) and the consideration is paid by way of Bitcoin, then tax shall be deducted under Section 194C as well as 194S.

No Deduction of TDS in Certain cases: In the following cases, TDS shall not be deducted under Section 194S:

  • The consideration is paid by a ‘specified person’ where the value or aggregate value does not exceed Rs. 50,000 in a financial year.
  • The consideration is paid by any person other than the specified person where the value or the aggregate value does not exceed Rs. 10,000 during the financial year.

The following persons are considered as ‘specified persons’:

  • Individual or HUF whose total sales, turnover or gross receipts do not exceed Rs. 1 crore in case of business and Rs. 50 lakhs in case of the profession in the financial year immediately preceding the financial year in which the VDA is transferred.
  • Individual or HUF not having income under the head ‘Profits and Gains of Business or Profession’.

3) Gifts: Gifting of virtual digital assets has also been covered under the income tax act. The definition of the property has been amended to include virtual digital assets. Therefore, all the provisions governing taxation on gifts that were applicable to the property as per the definition given under section 56 (i.e., movable properties) shall apply in relation to the VDAs.

[The above income tax, TDS, and gifting provisions in relation to the VDAs will become applicable from the FY 2022-23.]

In a Nutshell

The Government of India is also drafting the Cryptocurrency Bill that will become the principal law for governing the transactions associated with virtual digital assets. This comes in a bid to regulate crypto and related transactions. Also, quoting PAN card numbers has become mandatory for opening an account with the crypto exchange. It can be anticipated that as the world adopts Web 3.0, many new fundamental changes will be adopted in-laws to regulate and govern these transactions.

In case of any query, please feel free to contact ASC Group.

End Notes

As per Section 2(47A) of the Income Tax Act, 1961,

“Virtual digital asset” means––

a) any information or code or number or token (not being Indian currency or foreign currency), generated through cryptographic means or otherwise, by whatever name called, providing a digital representation of value exchanged with or without consideration, with the promise or representation of having inherent value, or functions as a store of value or a unit of account including its use in any financial transaction or investment, but not limited to investment scheme; and can be transferred, stored or traded electronically;
b) a non-fungible token or any other token of similar nature, by whatever name called;
c) any other digital asset, as the Central Government may, by notification in the Official Gazette specify:
Provided that the Central Government may, by notification in the Official Gazette, exclude any digital asset from the definition of virtual digital asset subject to such conditions as may be specified therein. 

Explanation.––For the purposes of this clause,––

a) “non-fungible token” means such digital asset as the Central Government may, by notification in the Official Gazette, specify;
b) the expressions “currency”, “foreign currency” and “Indian currency” shall have the same meanings as respectively assigned to them in clauses (h), (m) and (q) of section 2 of the Foreign Exchange Management Act, 1999.

 

Leave a Reply

Your email address will not be published. Required fields are marked *

 

SUBSCRIBE OUR NEWS LETTER