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The coming revolution in Indian banking

Increasing penetration of smartphones, Aadhaar-linked bank accounts and a host of powerful open and programmable capabilities is set to create the ‘WhatsApp moment’ for Indian banking.

Once in a while a major disruption or discontinuity happens which has huge consequences. In 2007, the internet and the mobile phone came together in a whole new product called the smartphone. This phone, with its own operating system, such as the iOS or Android, could support over the top (OTT) applications. The messaging solution for the smartphone did not come from the giant telecom or internet companies. Instead, it came from WhatsApp, a start-up. WhatsApp does 30 billion messages a day, whereas all the telecom companies put together do 20 billion SMS messages per day. Such is the power of disruption!

Such a “WhatsApp moment” is now upon us in Indian banking. This discontinuity has been caused by several things coming together. Smartphones are growing dramatically and are expected to reach a penetration of 700 million by 2020. Over 1 billion Indian residents now have Aadhaar, an online biometric identity. The government promoting financial inclusion through the Jhan Dhan Yojana has led to over 200 million new bank accounts being opened. With the RBI giving licences to over 20 new banks, including small banks and payment banks, the competitive intensity of the sector is set to increase. One can visualise a future where every adult Indian has an Aadhaar number, a smartphone and a bank account. Already over 280 million Indian residents have an Aadhaar-linked bank account and around 1 billion direct benefit transfer (DBT) transactions have happened, whose value is in the billions of dollars.

On top of this, a set of powerful open and programmable capabilities, that are collectively referred to as the “India Stack” by the think-tank iSPIRT, has been created over the last seven years. Aadhaar provides online authentication using one’s fingerprint or iris, which can be done from anywhere. This can make transactions “presence less”. The e-KYC (know your customer) feature of Aadhaar enables a bank account to be opened instantly, just by using the Aadhaar number and one’s biometric. The e-sign feature enables online documents to be digitally signed with Aadhaar. The “digital locker” system enables the storage of such electronic documents safely and securely. All this can make the entire banking process “paperless”.

The final two layers of the “India Stack” have great relevance to the future of banking. The Unified Payment Interface (UPI) layer, a product built by the National Payment Corporation of India (NPCI), a non-profit company collectively owned by banks and set up in 2009, will revolutionise payments and accelerate the move towards a “cashless” economy. So “pushing” or “pulling” money from a smartphone will be as easy as sending or receiving an email. This product from NPCI is the latest in several payment systems that they have developed, from the National Financial Switch, National Automated Clearing House, and RuPay cards, to the Aadhaar Payment Bridge, the Aadhaar-enabled Payment System and IMPS, a real-time payment system.

The move to a “cashless” economy will be accelerated by the Aadhaar-enabled biometric smartphones. So credential checking in banking will move from “proprietary” approaches (debit card and PIN) to “open” approaches (mobile phone and Aadhaar authentication). As such, the holy grail of one-click two-factor authentication, now available only to giants like Apple, will be available to kids in a garage to develop innovative solutions.

Finally, as India goes from being a data-poor to a data-rich economy in the next two to three years, the electronic consent layer of the “India Stack” will enable consumers and businesses to harness the power of their own data to get fast, convenient and affordable credit. Such a use of digital footprints will bring millions of consumers and small businesses (who are in the informal sector) to join the formal economy to avail affordable and reliable credit.

As data becomes the new currency, financial institutions will be willing to forego transaction fees to get rich digital information on their customers. The elimination of these fees will further accelerate the move to a cashless economy as merchant payments will also become digital.

This will also shift the business models in banking from low-volume, high-value, high-cost, and high fees, to high-volume, low-value, low-cost, and no fees. This will lead to a dramatic upsurge in accessibility and affordability, and the market force of customer acquisition and the social purpose of mass inclusion will converge.

These gale winds of disruption and innovation brought upon by technology, regulations and government action, will fundamentally alter the banking industry. Payments, liabilities and assets will undergo a dramatic transformation as switching costs reduce and incumbents are threatened. As the insightful report from Credit-Suisse has so well explained, there is a $ 600 billion market capitalisation opportunity waiting to be created in the next 10 years. This will be shared between existing public and private banks, the new banks and new-age NBFCs. It may even go to non-banking platform players, which use the power of data to fine-tune credit risk and pricing, and make money from customer ownership and risk arbitrage.

The public sector banks, which occupy the commanding heights of the economy with a 70 per cent market share, will be particularly challenged. Even as they deal with the inheritance of their losses, they will have to cope with, and master, enormous digital disruption. This will require their owners, the government, to give them the autonomy and freedom to experiment and innovate.

To quote Shakespeare, “There is a tide in the affairs of men, which, taken at the flood, leads on to fortune”. The $ 600-billion opportunity is here. The WhatsApp revolution went unnoticed by incumbents. Normally such disruptive changes (like bubbles) are only recognised after they have happened. In this case, the forces of change are evident and can be anticipated. The opportunity for the banking sector has been called, and it is equally accessible to incumbents, both in the public and private sector, to the new banks, to the NBFCs and the tech companies. The future will belong to those who show speed, imagination and the boldness to embrace change.

This article was written as foreword to a Credit-Suisse report on the Indian banking sector

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The Value Added Service Providers in Cloud Telephony

Industry discussion on response to Consultation Papers by TRAI on Voice Mail/Audiotex/Unified Messaging Services Licence

TRAI floated a consultation paper to review the license of Voice Mail/Audiotex/Unified Messaging Services. The consultation paper throws light along with an in-depth analysis of various issues involved.

Many call these companies as Cloud telephony companies. Cloud telephony is a wider terms. Plus its creates confusion on switching happening from cloud. This can be problematic for a dialog with TRAI or DOT. Hence, We have called them as Value Added Service Providers. This argument is justified in this discussion below.

For iSPIRT this sector is important as

  1. Most of these companies have a Software product at the core developed by them
  2. They are mostly startups and
  3. There is enough scope in  this sector for more innovation to happen.

iSPIRT conducted a discussion on important issues of this segment of the Industry. The discussion was to touch on important aspects of the consultation papers of TRAI. The discussion is organized in 4 parts as follows:

  1. License issues
    • License v/s no license, separate licenses Technology and license mapping
    • Entry Fees, Revenue Share, License Period
  2. Issues like conferencing, dial out, point-to-point conferencing
  3. Unified License – how to tackle this
  4. Focus on innovation, Startups, Ease of Business (compliance)

Following people from Industry joined the Discussion:

  1. Ambarish Gupta, Sandeep Upadhyay and Sriram from Knowlarity
  2. Gurumurthy Konduri from Ozonetel
  3. Shivakumar Ganesan – Exotel
  4. Anik Jain – Myoperator
  5. Ujwal Makhija  – Phonon

Those interested can watch the video embedded here. Also the text below the video describes the common points and agreements of the essence of the discussion.

License issues

There are several questions asked in consultation paper on, What kind of licensing is required for various services. (Q1 to Q8)

At iSPIRT we feel most of these providers fall under one category. And they all should get recognition under one category name. This will include all, those who provide Voice mail, Audiotex, Audio Conferencing service etc. They can focus on one set of service or the entire suit of services.

Nomenclature – Call them Value Added Service providers

Cloud Telephony means a telephony service provided from cloud hosted infrastructure. simple reason that the service offered from cloud. Present policy regime of India calls them content providers. Now this may be difficult to digest for remaining IT industry. This include  provider licensed under the Voice Mail/Audiotex/Unified Messaging Services License.

Application service provider (ASP) and Communication application service provider (CaaS) are other nomenclatuers ascribed.

These providers are not supposed to carry telecom traffic or provide switching of telephony. In essence these providers are “Value Added Service” (VAS) providers. These value added services can range from be voice mail box, an IVR, a virtual PABX, a virtual call center to analytics based services.  There can be lot of innovative ways to deliver services. The VAS operator charges for their value added part. The VAS operator does not have its own network but relies on network resources of the Telcos for the basic or mobile telephony.

Weather a license or a simple Registration process

Everyone in the panel agreed that licensing cumbersome and costly. There is no need for a license and that there should be a simplified registration process.

The registration should be under one category e.g. Value Added Service Providers. This can cover all Voicemail, Audiotex along with Audio conferencing and the Unified messaging.

The registration helps DOT to keep track of fair use of the policy, with complete neutrality and level playing field. DOT can keep watch the registered VAS providers through a simple compliance process.

License issues – Entry Fees, Revenue Share, License Period

There was common agreement in the discussion on fees and charges. Presently there is a bank guarantee of 3 lakhs for Voice Mail/Audiotex licenses. A policy to either keep it at same level or evolve to simplify further is welcome.

License/registration period of 10 or 20 years are good enough.

Issues like conferencing, dial out, point-to-point conferencing

The consultation paper deals at length these issues. For the industry they are of high importance as most confusions arise from them. Often the threats of inspection and service disruption from TERM cell arise from these provisions. There is always a doubt that the VAS operator may be involved in routing call traffic for business motives or running a switching service clandestinely.

In such a dubious doubtful environment this budding segment of Industry cannot grow. The VAS operators addes lot of value to both their suppliers and clients. The customer pays for the value they add not for the telephone calls. For suppliers (Telcos), the VAS operator is a bulk service customer

The common agreement was that this area needs a serious look from TRAI and DOT.

When industry is complying with all required prohibited clauses of the policy such as

  1. No VOPI integration
  2. No toll bypass
  3. No number masking

When the Call deail record (CDR) are all tapped in the Telco’s network;

AND

When there are further detail logs and records that are avaialable from VAS provider;

there does not arise a chance of

  1. Security  breach by VAS operators and
  2. Revenue loss to Telcos

The revenue of Telcos increase happen to increase even when they VAS providers buy from Telcos at a discounted rate. VAS operators increase the size of Pie.

In view of above, the common agreement in the discussion was that

  1. There should be clarity on conferencing, bridging call out provisions
  2. There is nothing like point to point conferencing
  3. The policy should allow VAS operators to use telecom resources from multiple operators. The limiting principle should be dial out to same operator from where incoming call comes.  Multiple operators are the need for reliability or redundancy.

OSP like provisions or OSP should be allowed for VAS providers?

There was an opinion on OSP being allowed to VAS operators. This will give them more flexibility to operate and grow their presence. The opinion attempts to justify the OSP based on analogy of large Captive call center operators allowed OSP with network spanning country wide with a central logic running.

iSPIRT’s opinion is that this may create conflict with other areas of policy under TRAI and also face sever resistance. It is advisable to take up this issue in a phased manner. May be first limiting OSP to one telecom circle at a time. Plus it advisable to approach it, after due consultative interactions with TRAI and DOT.

Unified License – how to tackle this

There are number of questions on Telcos operating under unified license to offer VAS. The questions also point to inclusion of “Voice Mail/Audiotex/Unified Messaging Services” in unified license.

The common opinion that emerges out from discussion is that the Value Added Services is a different ball game. The market should be free for all. Eventually there is a unique Software Product existing behind these services. The quality of service is highly dependent on this core product.

There does not seem to be any apposition to Unified license getting extended to the value added service suit.

Focus on innovation, Startups, Ease of Business (compliance)

This fourth part got truncated from the recording, perhaps for time limit getting crossed unnoticeably.

For benefit of the community. A very short discussion on how this small industry could further be boosted by perhaps giving more access to domestic market through promotional policy measures.

Certainly there is agreement that there is lot of scope to innovate and do more within this segment of the Industry.

The discussion ended by a Thank you note.

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Convertible Notes

In this session we take up another announcement by ministry of corporate affairs on convertible notes. This is a step forward to solving the problem of receiving funds as loan from foreign investors as convertible notes.

Sanjay Khan Nagra talks about the issue in the video embedded below.

What is a convertible note?

Convertible notes are debt instruments that converts in to equity, at a later date. The lender initially gives a loan with an understanding that he can convert these in to equity. In most cases, this later date is the date of next valuation of the company. If there is no next round of valuation, the company should return the debt back to lender in a fixed time interval.

Convertible notes are quite popular in startup ecosystems like Silicon Valley in USA. In India, there are other forms of convertible instruments. Such as CCDS/CCPS (compulsorily convertible debenture or preference share). These are not exactly akin to convertible notes prevalent in valley.

Ministry of corporate affairs has announced acceptance of the convertible note as a concept for startups through a circular no. G.S.R. 639(E) New Delhi, dated 29th June, 2016.

What is the new in the recent announcement?

In existing CCD/CCP instruments, company receiving funds upfront enters into an agreement defining the value or a formula at which these will convert in to equity. This value, at which they will convert cannot be lower than the present fair market value. The CCD or CCP are compulsorily convertible if there is a next round of valuation in a specified period. If there is no valuation in that period, then the money raised remains as a simple loan to be repaid.

The convertible note practice in valley is better placed. There also, a convertible note is also a loan given by investor to company. The difference being, the lender gets an advantage to convert debt to equity at a later date at a discounted rate.

So if a Rs.10 share value at later date is Rs. 50, the lender may get a conversion at Rs. 40. Next valuation round may also happen at lower than present fair market value.

So, this seems more of less like similar, what is the problem then?

The anomaly is that the Indian company can raise funds using convertible notes from Indian lenders only, and not from foreign investors.

RBI does not allow valuation linked convertibles notes. iSPIRT approached RBI with this stay-in-India check list item. RBI felt that there has to be an acceptance in company law for the convertible note concept, as akin to the practice in developed world.

iSPIRT approached ministry of corporate affairs (MCA), and the new announcement is a step forward in this direction. We soon expect RBI to follow suit and permit convertible notes from foreign investors.

Are there any conditions in MCA announcement?

MCA has announced a definition for “convertible notes” under G.S.R. 639(E) by amending the Companies (Acceptance of Deposits) Rules, 2014. You can read the complete circular here.

The limitations are:

a) The provision of Convertible note applies only to Startups
b) The amount has to be 25 lakhs or more

As per circular the definition of convertible note is added as follows:
“convertible note” means an instrument evidencing receipt of money initially as a debt, which is repayable at the option of the holder, or which is convertible into such number of equity shares of the start-up company upon occurrence of specified events and as per the other terms and conditions agreed to and indicated in the instrument.

iSPIRT stand

iSPIRT will actively pursue this further with RBI.

DIPP and MCA have taken an appreciable step forward, in getting the regulation relaxed for DIPP registered Startups.

However, in order to bring the Indian startup ecosystem at par with developed world, the limitation to DIPP registered Startups should not exist. These measures are to be adopted for all startups/companies across country.

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Domestic venture debt

In this session on Domestic venture  debt, we talk about a recent announcement by Government of India, that relaxed the provision on raising debt from domestic non-banking sources of funds. Sanjay Khan speaks on the subject in below embedded video.

What is the problem, that this new announcement on domestic venture debt solves?

Private companies can raise debt funds in a restricted manner only. They could raise debt from some allowed sources. These could be like company directors, their relatives and other companies etc. But, not from sources like angel funds, domestic VCs who are not companies. A debt raised from such sources fell under deposits category.

To accept ‘deposits’, companies need to follow number of conditions, which are quite tedious.

What is the new announcement?

As per sub-clause (iii) of Clause 68 of Section 2 of Companies Act, 2013 definition of Private Company, “means a Company which by its articles prohibits any invitation to the public to subscribe for any securities of the Company”.

The new announcements open up some new avenues of raising debt funds from domestic markets.

These new sources of funds, added to this non-public funds category are funds registered and operating under SEBI’s regulated regime. Following are these three new sources

1. Alternative Investment Funds (AIFs)

2. Domestic Venture Capital funds

3. Mutual Funds

Prior to this announcements funding from these sources was treated as deposits and not loan.

What are the limits of announcements?

Whereas this announcement opens up these three highly potential sources of domestic debt funding, it is limited to Rs. 25 Lakhs only.

So the announcement is likely to benefit startups in their early phase.

The other good part is that, this is not limited to recognised Startups or startups registered under StartupIndia with DIPP. It is open to any private company hence it can apply to any startup.

The announcement adds up to efforts made by Government of India in creating better environment for funding. It is a step forward in the direction.

iSPIRT believes and is further taking up with the Government to not limit this provision to Rs. 25 lakhs.

The video below covers this topic with Sanjay Khan, the expert who was instrumental in building up the stay-in-india checklist of iSPIRT.

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Investment above Fair Market Value – no more Angel tax for Startups

In this session we take up a long pending issue of “Angel Tax”. It has been given partial reprieve recently, under StartupIndia plan. We also discuss how startups can raise money from Angels, without getting trapped in fair market value rule of finance act 2012.

Sanjay Khan speaks on the problem, the latest announcement and the way out for startups to raise equity without DIPP route, in the below given google hangout video.

What is this issue of Angel Tax? And what changes after new announcement?

Startups receive equity infusions from various sources. One of the most lucrative and internationally prevalent source is the Individual investor (Angels).

In India income tax department is skeptical about angel investment. This is because, at times angel investment was misused to channelize black money. Artificial valuations is mostly the doubt in mind of income tax authorities.

As per, Finance Act 2012, capital raised by an unlisted company from any individual against an issue of shares in excess of fair market value would be taxable as ‘income from other sources’ under Sec 56 (2) of the I-T Act. This came to be popularly called as angel tax.

So, if fair market value is say e.g. Rs. 10 per share and a startup receives Rs. 15 investment from an Angel investor. Income tax treats this difference i.e. Rs. 5 per share, as income.

As per the above provisions, the angel investments are subject to assessing officer’s approval. The jurisdictional assessing officers of income tax enjoy the discretionary powers. Instances of misuse of these discretionary powers by assessing officers created problems for startups.

Many startups are not serious about the documentation. Mostly, such startups get into problems due to lack of documentary evidence about their valuations.

Govt. of India recently announced a change under StartupIndia policy of DIPP. A Central Board of Direct Taxes notification, dated June 14, made the required changes to Section 56(2)(viib) of the Income-Tax Act, exempting startups raising funds from angel investors. This is limited to the startups approved by DIPP.

Is it available to all DIPP registered startups?

No, not to all startups approved or recognised by DIPP.

There are three kinds of startups now.

(a) General Startups, that have not applied to DIPP or are not even eligible to apply to DIPP.

(b) those who applied and got recognised by DIPP but did not apply for Income tax exemption.

(c) those who fall under (b) and also got the income tax exemption approval of the inter ministerial board of DIPP.

Only the third (c) category of startups are eligible. These startups need not worry about the assessing officer discretion now. The benefit is available so long as they enjoy the income tax exemption under startup policy.

So, if this is not applicable to all startups, does it mean other startups cannot raise equity from Angel investors at all?

The Finance act 2012 provision does not bar angel investments. Startups not under (c) above can raise the investment from Angels (individual investors). The limitation is that the valuations in such cases will  be subject to examination by assessing officer approval.  They have to extra careful about the valuation at each round of funding.

Such startups should get a professional third party valuation reports. Get a valuation reports for all rounds of valuations with proper documentary proofs. You can face the assessing officers with proper documents without any fear.

The recent hype created in media was mainly arising from down rounds. That is when the new round of investment was done at a lower rate than the previous round. This led to income tax doubting the misuse.

In such challenging valuation situations like down round valuations, the startup can get a professional third party valuation from 2 or 3 sources. This way they can deter the assessing officer’s misuse of discretionary power as well as stand any litigation test, if put through.

In essence, a startup can raise honest angel investment at right fair market value. A professional valuation exercise with all objectivity can help you cover the risk.

iSPIRT’ stand

Startups ecosystems in developed countries enjoy a favourable investment climate that proactively promote and protect the angel’s investments.

Government of India should show give clear signal of favourable investment climate in the country.

Government of India should think of measures that can deter black money getting invested in the Startups, instead of doubting each and every investment. For this Govt. should repeal the the provision introduced by finance bill 2012 should. Discretion to assessing officer is not serving the cause of building investment climate.

India seriously needs a policy that promotes angel investments in general, with responsibility of money invested taken by investors rather than Startups.

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Stay-In-India Checklist – Successes So Far And The Path Forward

Over the past few months, we have witnessed a number of policy changes focused on creating a conducive environment for startups and entrepreneurship in India. Some changes go beyond the startup ecosystem and attempt to resolve the issues faced by companies/investors in general. A common feature in most such changes is iSPIRT’s Stay-in-India Checklist (SIIC). The SIIC comprises 34 issues, which were extracted from a larger list of 120+ issues, put together by the iSPIRT team after extensive consultation with various stakeholders.

With the 29th June notification of the MCA amending the Deposit Rules, a total of 29 SIIC issues have been addresses/acknowledged by various government departments. Some of the key changes that have taken place pursuant to SIIC are as follows:

  • Angel tax: Monies received by a company from certain resident investors (including angel investors) which are in excess of the fair market value of shares issued against such monies, are taxed as income in the hands of such company. This leads to significant hurdles in domestic angel investments (other popular modes of investments are exempted from this tax). Now, startups that are approved by the inter-ministerial board formed by DIPP (“Approved Startups”) have been exempted from this requirement.
  • Harmonisation of tax policy for listed and unlisted equity instruments: There is unnecessary disparity between holding periods for listed and unlisted shares for claiming long term capital gains benefit in relation to them. While the holding period for listed shares is only 12 months, for unlisted shares, it was 36 months. This, despite the fact that investment in unlisted shares, such as those of startups, carry higher risk. Now, this period has been reduced to 24 months. This relaxation is available to all companies, irrespective of them being startups.
  • Favourable tax regime for IPR: In the past several years, India has experienced that the ownership of IPR created in India does not reside in India, as tax regime for IPR in other jurisdictions is more favourable. Now, income by way of royalty in respect of a patent developed and registered in India will be taxed at 10%. This relaxation is available to all companies, irrespective of them being startups.
  • Convertible notes: One of the most popular instruments abroad for startups to raise early stage funds, convertible note, is not expressly recognised in India, and could be considered to be a form of ‘deposit’ which can be taken by a company only from its existing shareholders/ directors. Now, convertible notes of up to INR 25 lakhs per person have been permitted for startups that have registered on the StartupIndia portal (“Registered Startups”).
  • Indemnity escrows and deferred consideration: In FDI transactions, use of escrow mechanisms for indemnity arrangements and payment of deferred consideration required prior approval of the RBI. This created significant hurdles in acquisition of Indian companies by non-residents (since these terms are standard in acquisition transactions globally, and all acquires expected them in Indian acquisitions as well). Now, these mechanisms have been permitted for a period of up to 18 months and for an amount of up to 25% of the consideration under the automatic route (without the prior approval of the RBI). This relaxation is available to all companies, irrespective of them being startups.
  • Transfer from FVCI to non-resident: There is uncertainty around the transfer of shares of an Indian company by an FVCI entity to a non-resident entity. While certain custodians allow such a transfer without an approval of the RBI, other custodians require prior approval of the RBI before proceeding with such transfer. Although there is no specific regulation that requires FVCI entities to obtain prior approval of the RBI for such transfers, given the aforesaid difference of opinion among custodian (which results in delays in M&A transactions), there was a need for the RBI to clarify this issue. Now, Registered Startups have been exempted from this requirement.
  • Restriction on FVCIs from investing in all sectors: Foreign venture capital investors (FVCIs) are permitted to invest in only certain specified sectors. This is largely owing to the list of permitted sectors set out in registration certificates issued by authorities to FVCIs. Now, FVCIs are permitted to invest in all Registered Startups, regardless of the sectors they have been engaged in.

In addition to the above, the following issues have also been recognised by various government departments. The changes to resolve these issues have either been notified, or have been announced to be notified in due course:

  • Collection of foreign monies by residents in India on behalf of non-residents
  • Online filing of forms for cross border transactions
  • Simplification of incorporation process
  • Share swaps in FDI transactions
  • Venture debt not be categorised as deposits
  • Acquisition of overseas company with an existing subsidiary in India
  • Foreign subsidiaries of Indian companies investing back into India
  • Relaxation of external commercial borrowing guidelines for startups
  • Simplifying process of conversion of LLP into a company
  • Exclusion of private companies from the term ‘listed company’
  • Grant of ESOPs to promoters and independent directors
  • Single window agency for closure of failed startups
  • Permitting outbound mergers
  • Simplifying the process of private placement
  • Applicability of provisions relating to insider trading on private companies

As one would note, a significant number of material issues have either been addressed or are in advanced stage of being addressed. iSPIRT continues to interact with the government to get further relaxations on these issues, as some relaxations are restricted only to Approved Startups or Recognised Startup, or are simply limited in scope. iSPIRT also continues to push for resolution of other issues which have either not been addressed so far or are new and have not been covered in SIIC.

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DIPP – New Secretary catalyzing the past efforts, for Startup Ecosystem.

Mr. Ramesh Abhishek, Secretary of DIPP in a learning-session with iSPIRT.
He formerly headed the Forwards Market Commission and has subsequently served as the secretary of performance management at the Cabinet Secretariat. He has been the key driver behind several reforms including the FMC being merged with SEBI. Mr. Ramesh Abhishek, is the new Secretary of DIPP (Department of Industrial Policy & Promotion), following his senior Mr. Amitabh Kant. Mr. Ramesh is now also in charge of Invest India, National Investment Promotion Agency, as well as Startup India campaign. He met up with iSPIRT, on Friday, 10th June, at 91Springboard in Bangalore, participating in a learning-session to understand the plethora of Technological Break-throughs and Policy Transformations that iSPIRT is facilitating for the benefit of the Startup Community. He provided some very useful advice by participating in an interactive learning session for close to 4 hours.
Below are some of the key highlights of the Learning Session.

 

iSPIRT Show-case – INDIA Going from Data Poor To Data RICH
The session started with a presentation by Sanjay Jain on the iSPIRT’s jobs perspective. He explained that while new-age startups won’t create many jobs they will build platforms which will drive formalization of the Indian economy. This will materially expand the economy and create millions of jobs. IndiaStack is enabling this transformation of the economy. HouseJoy, NinjaCart and CapitalFloat CEOs shared their own perspective on this change and added to the discussion.
DIPP-secyThe follow-on session, by Shekhar Kirani, presented how INDIA is becoming a major player in the GLOBAL Software Product Industry and how Startups from INDIA are disrupting some major players. Subsequently Unbxd, ShieldSquare and Hotellogix discussed their own journeys and added depth to this discussion..
The most intense session was when Mr. Venkatesh Hariharan presented the Patent & IPR Policy Details, If we have to unleash India’s true innovation potential, India needs to remain a no-software-patenting jurisdiction. Only then can it capitalize on its mathematical foundations, and keep away the patent-trolls.
This last session was by Sanjay Khan and covered the progress around the Stay-in-India Checklist. Mr. Abhishek was very impressed by the progress that has been made and reiterated his commitment to get the remaining items on the Checklist resolved. He agreed that stopping exodus of new-age startups is very critical to the success of the software product ecosystem.
DIPP-2ndSession-2Insights and Advise from Mr. Ramesh Abhishek
Government wants to make a big difference with our Startup Movement. Mr. Ramesh felt that we should make it the biggest, so that it will leapfrog the West. He was immensely supportive to all policy efforts of iSPIRT and, in fact, extended immediate help for on a particular issue that had come up in the discussions. He had 3 important pieces of advice:
  • Startup-Hub as part of the Invest India program, should be supported and adopted with good ideas from the Startup Community.
  • DIPP will address Startup challenges quickly in aget time-bound manner.
  • DIPP wants to so much more, so iSPIRT should continuously engage with it.
Mr. Ramesh later proceeded to visit some Hardware and software Incubators in and around Bangalore.
DIPP-2ndSession-3Conclusion
Mr. Ramesh Abhishek went away with a deep understanding of the forces changing India and the landscape that is emerging. was very impressed with the body of work presented to him. He stressed that this Government wants to go much more.  iSPIRT on its part is fostering and facilitating many such learning-sessions to nudge Policy Makers help the ecosystem, and bridge the gap of Intellectual distance between Delhi and Bangalore. Let us all move-the-needle with collective vigor to catalyze the effort of building India into a Product Nation.

 

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Software Patents rigamarole- non-starter for start ups!

Every few years, we witness a fierce attempt to re-ignite the discussion
of patentability of software (something that the Indian Parliament had
rejected in 2005) by the usual beneficiaries of such a system: the mutli
national holders of patent thickets, old system integrators, lawyers,
and patent agents.

These incumbent holders of patent thickets love to confuse rule-making
by crying wolf and repeating arguments already dismissed by the
Parliament in the middle of last decade. No new arguments are presented
but enough confusion is  created in a hope that the Patent Act can be
amended through patent office rules instead of amending the Act-an
arduous process.

The legislative intent behind excluding “computer programmes per se”
from patentability is very clear. The parliament understood that
allowing computer software patenting  may give rise to monopoly of
multinationals and will make it difficult for Indian companies to
flourish. This was proven right as despite the clarity in law, lawyers
playing word jujitsu were able to get many irregular software patent
application passed by the Indin Patent office. A study by SFLC.in of all
patents granted since 2009 to 2015 shows, 95 % or more patents are
granted to Multi National Corporations and not Indian Companies.

Once again, we are here. When the Patent Office decided to ensure that
no such patents were granted and the patent examiners were trained to
follow the law, they issued Computer Related Inventions guidelines.
These guidelines clearly say merely because you write some software app
which runs on a smart phone  does not mean you can prevent all others
from writing any other app. But big companies, multinationals and patent
lawyers have decided to use this yet again to agitate for software patents.

If these guidelines are not followed, what will follow are floodgates of
litigation just like Ericsson–a company no longer a leader in
phones–is  suing Micromax, Lava  and other manufactures on patent
infringement (around eight suits were filed by Swedish multi-national
Ericsson alone, another three by Vringo Infrastructure) See
http://sflc.in/an-overview-of-standard-essential-patent-litigations-in-india/

We are often presented with the argument what if an Indian start up
comes with some really inventive program, should they not have a right
to patent it? In reality, it does not happen as often as most work
companies do in the field of software are based on pre-existing works
that has already been patented by mostly U.S. but not always old
incumbents. Due to International treaty obligations, these incumbents
will get priority in patenting in India as well, leaving Indian
companies in the cold. Furthermore, Indian software companies can and do
patent their inventions abroad, thus actively competing in the market
for government monopolies maintained in other countries but in India
they are already at a disadvantage. The Indian startup industry has
flourished without patent protection and can continue to do so in the
future without fear of litigation from patent thickets by not supporting
the grant of software patents.

Software, unlike other sectors in the field of technology, is
essentially based on mathematics and algorithms, where the field of
knowledge has improved over the years by sharing of code and improving
on existing code.  Patents were never considered to be the motivating
factor in this industry and patents made their entry much later by means
of judicial interpretations of patentable subject matter in some
jurisdictions.  Inventors and companies have prospered in this industry
in the absence of patents. After the mobile patents wars between Apple,
Samsung and multiple other parties, even the U.S. courts are reigning
back their system as is evident from recent court decision in Bilski and
Alice Corporation.

Lawyers always love more law as that means more business for them, a
policy decision based purely on their observations does not constitute
smart policy making.  In an industry where technology changes fast and
competitive advantage is derived by innovating at a fast pace, these
government granted monopolies will only act as speed-breakers in the
growth of technology and the industry.  The government should wisely pay
no heed to these monopoly holders and keep betting on innovation.

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Demystifying Startup Tax

Over the past couple of days, a lot has been written/discussed about the so called ‘startup tax’ and its perceived ill effects on the startup ecosystem. Under iSPIRT’s new initiative, PolicyHacks, I attempt in this note to demystify the legal/tax jargon around this tax and to clarify the proposed rule for the benefit of ecosystem participants, particularly startups.

What is the law?

Simply put, if a private company issues shares to a resident Indian at a price above the fair market value (FMV) – say the FMV of a share is INR 100 and the company issues it at INR 110 – then the excess consideration (INR 10 in this case) is considered to be the company’s income (since, in a way, it deserved INR 100, but received INR 110). The amount of INR 10 is, therefore, liable to be taxed as the company’s income (which presently is at a rate of 30%). FMV is an important element here, and we will get back to it later. It is popularly called the ‘angel tax’.

Who are exempted from this?

As highlighted above, this provision is applicable only to investments received from resident Indians. Thus, at the first level, it does not affect foreign investments. In addition, the provision does not apply to investments made by SEBI-registered entities. One, therefore, need not worry about money received from angels/VCs/PEs which are either investing from foreign sources or have been registered with SEBI.

Who are hit by this?

Whoever is not covered under the above exemptions or otherwise exempted by the government. Prominently, the Indian angels (which constitute an overwhelming majority of the overall angel investors). Hence, the term ‘angel tax’.

What is ‘startup tax’ then?

As is clear from the above, the law is applicable to all private companies and does not single out startups. However, it has been reported in the media lately that startups which have raised down-rounds will be scrutinised by the tax department, and the valuations of such down-rounds will be considered to be the FMV of all previous (up) rounds.

In other words, if:

  • in the last round:
    • the valuation of the company was INR 1,10,00,000; and
    • the FMV per share was INR 110;
  • in the present (down) round:
    • the valuation of the company is INR 1,00,00,000; and
    • the FMV per share is INR 100,

then the valuation of the down-round, i.e., INR 100 will be considered to be the FMV of the previous round.

Hence, applying the law set out above, anything received by the company in excess of the FMV (in this case INR 10 per share) becomes its income, and is taxable as such.

So what is new in this?

Nothing. There is no change in the law. The issue that the industry has been facing since the introduction of this law is that the income-tax officers (who have wide ranging powers) were found to be using this provision to harass companies.

I have raised money from resident Indians and now I expect a down-round; will the tax department come after me?

Since this is not a new or proposed law, nothing stops the income-tax officer from going after any company even today. In fact, such proceedings have been initiated against quite a few companies in the past.

The key thing here to note is this – No tax can be levied on a company just because it has raised a down-round. The only money that this provision permits to tax is the consideration received by a company in excess of the FMV. It is a settled principle that each funding round can, and quite often, is raised at an FMV different than the previous round. So long as one can justify that in a down-round, the fall in FMV is on account of genuine external factors, and not because the FMV in the previous round was artificially inflated, one should be fine. Thus, even if one receives a notice from an income-tax officer in this respect, all one needs to demonstrate is that the FMV in the last round was calculated in accordance with the valuation mechanism provided under the IT Act, and there was no foul play in that respect. For startups falling in this category, there is nothing (or not much) to worry about, at least prima facie.

iSPIRT view and efforts

At iSPIRT, as part of the Stay-in-India initiative, we have been in continuous discussions with the government to rationalise this provision to ensure that genuine investments using legitimate money (such as angel investments) are not hit by this provision, and there is no unnecessary harassment.

Also, the government has exempted startups (which register on Startup India portal and are approved by the inter-ministerial board) from income-tax. Thus, ideally, such qualified startups should be exempt from this tax as well. We continue to discuss this with the government.

Author note and disclaimer: PolicyHacks, and publications thereunder, are intended to provide a very basic understanding of legal/policy issues that impact Software Product Industry and the startups in the eco-system. PolicyHacks, therefore, do not necessarily set out views of subject matter experts, and should under no circumstances be substituted for legal advice, which, of course, requires a detailed analysis of the relevant fact situation and applicable laws by experts in the subject matter on case to case basis.

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Digital economy needs tax clarity

“Digital” is an inevitable and progressive catalyst of change. Whereas internet-based online transactions have existed for some time now, the transformations at a national scale are morphing many more areas together into a “digital economy”.

The transformation is about 100% dematerialisation up to the ‘last mile’, with near 100% continuous involvement of the internet and is built upon cloud computing. In India, the recent UPI launch will accelerate last-mile integrations and lead to a national cohesive market.

The digital economy is therefore about “digital goods” and “digital services” being stored, transported, or provisioned ‘digitally’ and exchanged using ‘digital money’. Electronic hardware, networking, telecom and e-commerce are about enabling this digital economy.

Tax regime—out of sync

On the other hand, governments globally have a huge challenge from the emergence of a digital economy which has the power to disturb or outmaneuver tax systems if not accommodated adequately and in a timely manner.

On the international front, the challenge is posed by technology diluting the efficacy of borders. The equalisation levy of 6%, introduced in Budget FY17, on the advertisement fees paid to foreign digital media companies, is a corner stone of the international problem of BEPS. In yet another example, since 2015, the EU has brought all digital goods’ B2C sales under VAT, irrespective of the country of origin.

On the domestic front, the challenges are created by a piecemeal approach from the tax authorities with respect to the evolution of this new economy ever since the internet and software delivery have proliferated. The fragmented system is not able to cope with new business models that are based on innovation and ideas where “software is eating the world”—as famously said by Marc Andreessen, a general partner at the prominent venture capital firm Andreessen Horowitz .

In some countries, Netflix users evaded tax when they procured directly online, as against paying taxes when procured through a partner. In India, the same ‘SaaS’ software is taxed only under the service tax component when procured through a service partner, as against service tax plus VAT when procured directly. The confusing tax systems create immense frictions for ease of doing business for digital goods and services.

The world has recognised the problem and started moving towards pragmatic solutions. India, with its 29 states and over 250 million internet users, cannot afford to overlook the taxation issues facing a digital economy.

On the domestic front, for indirect taxation, it is an opportune time for India to solve this problem with the GST rollout.

India has rightly opted for a ‘thoroughly digital’ system for implementing GST. However, to offer infrastructure to support a authentically ‘digital GST’, it also needs to integrate the digital economy’s taxation concerns.

The GST will solve many confusions, but must address several more of them. A single rate is always a good starting point. There are several unnecessarily imposed classifications of digital goods, and differential rates must be eliminated to simplify the mechanics. Additionally, the value chain of consumption of “goods” versus “services” is quite different, and must be reflected clearly in the definitions.

Accept digital goods as reality

A generally accepted principle across the ongoing discussions in the world of taxation on digital economy is that it does not favour a new or separate tax regime for ‘digital’. We must principally agree that the digital economy’s concerns should be overlaid and accommodated into the existing and evolving legal framework.

Despite a lot of confusion on this issue, the US has a well-drafted bill defining “digital goods” and “digital services” under consideration. The bill has adopted a simple and fair definition. The term “digital good” is defined as, “Any software product or other good that is delivered or transferred electronically, including sounds, images, data, facts, or combinations thereof, stored and maintained in digital format, where such good is the true object of the transaction, rather than the activity or service performed to create such good”. A “digital service” is defined as, “Any service that is provided electronically, including the provision of remote access to or use of a digital good”. This excludes services like telecom for fair sectoral treatment.

“Digital goods” therefore, is not just about music, video, images, or e-books. In fact, software products may be a combination of complex scientific computer programs or commercial applications with a combination of data types including voice, video, images, texts, document files and so on. We must account for the many permutations and combinations, and not limit the evolution of such products.

In order to make best use of the digital economy’s opportunities while achieving the objectives of a) increasing the tax base with a simple, fair and neutral tax regime, and b) promote an environment of business growth with ease of doing business, India must consider the following four measures in its tax systems:

One, free “digital goods” from the shackles of ‘royalty income’ under the garb of attached ‘copyrights’ in the Income Tax act. This binding of ‘royalty income’ on software and ‘intangible/digital’ goods is a bottleneck to trade in a digital economy.

Two, clearly define “digital goods” and digital services” consistently across the legal framework.

Three, provide “digital goods”, or intangible goods, the status of “goods” as defined in Article 366(12) of the Constitution. The digital goods, though intangible in nature, exhibit all properties of tangible goods generally acceptable in legal parlance viz. durability (perpetual or time bound), countability (number of pieces, licenses or users etc.), identifiability (standardised), movability and storage, ownership (IP or right to use), producibility/reproducibility, and marketability/tradability using an MRP.

And fourthly, in a digital world, the tax system (both domestic and international) has to be end-to-end digital, i.e., be able to track transactions, levy a clear single tax, and collect tax digitally—including taxes on international online transactions.

There is progress on the fourth issue in different quarters, but the government needs to move fast on the first three measures in order to align the tax system with the digital economy. This can not only solve existing taxation issues in the most transparent manner, but also provide future-proof solutions and establish standards for the support of innovation and progress.

Contributed by Mohandas Pai, Aarin Capital & Sudhir Singh, iSPIRT

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Clearing the confusion on – SOFTEX form filing need

There are instances, when Software exporting companies operating outside an export oriented scheme (STP, SEZ, EOU etc.) are advised, that there is no need for them to file SOFTEX forms. The young entrepreneurs in Startups, obviously get confused on this. In some cases, companies stopped getting SOFTEX certification done, after complying in past when they moved out of STP/SEZ schemes, owing to this advice.

There are always two parts to deal with regulatory compliance. One, the policy aspect and second, the procedural aspect. There is lot of material available on internet, on the procedural (process) part of filing SOFTEX form. And perhaps none, that explains the policy aspect.

This article is meant to clear the confusion on SOFTEX form among the Software product community by explaining the policy aspect of SOFTEX and background process, in the realm of foreign trade regulations.

Why and how SOFTEX form came in to existence?

In general exports means sending ‘goods and service’ to clients in foreign country (outside territorial borders of India) for purpose of sale. Physical goods are exported through a physical port of shipping (a sea port, airport or foreign post office) monitored by Central customs department.

When physical goods leave borders, from any port of shipment, the exporter is required to declared value of goods. In India, this was done through a form called GR form (PP form in case of exports by post office) for non-EDI ports and SDF for EDI ports, along with invoice and other supporting documents. Recently, as part of simplification of process, the GR and PP form have been substituted by a new form called ‘EDF’ (export declaration form) and SDF has been merged with shipping bill. Please see RBI circulars. RBI/2013-14/254 A.P. (DIR Series) Circular No.43 September 13, 2013) and RBI//2014-15/599, A.P. (DIR Series) Circular No.101, May 14, 2015.

This value declared is required to be accepted and certified by the customs office, at the port of shipment. This is called “valuation of export”. Once the valuation of export is complete, the value is accepted both by RBI and its authorised dealer (the exporter’s bank). RBI then monitors, the remittance of an equivalent value in exporter’s bank account.

A ‘Software’ exported on a media (CD/DVD, magnetic tapes etc.) has to pass through these steps, as it is exported physically through a port of shipment, as physical goods.

In early 1990s, when Software Technology Park (STP) scheme came in to existence, the need to export Software through data communication links emerged. Customs department had difficulty in managing this, as nothing physical was visible in a Software transmitted, as well as did not have human resources and knowhow to deal with exports through telecom links.

DeitY (then Department of Electronics) enabled an innovation in government policy and could get RBI to announce SOFTEX form as an alternative to the GR/PP forms, to suit the export of Software, through data communication links.

STPI being the administrative authority of STP scheme, became the designated authority for “Software export valuation” and certification of SOFTEX form, in place of Customs. As on date the jurisdictional STPI Directors and SEZ Commissioners are the designated authority for SOFTEX valuation.

The purpose, policy and process of SOFTEX form is same as in GR/PP (or new EDF) form.

The only policy point difference between GR/PP or EDF form and SOFTEX form is that GR/PP forms are submitted and valued, simultaneous to the exports actually happening from port of shipment. Whereas, SOFTEX form is a post-facto approval, after the actual export of Software has actually taken place.

An important policy aspect to understand here is that before the SOFTEX form was launched the Software was put at par with ‘goods’ in the foreign trade policy, as policy makers could not conceive a trade in anything that is not ‘goods’. Even today, a services export in non-IT sector does not need any declaration or export valuation. Therefore, Software (IT and ITeS) was given a special status in international trade equivalent to ‘goods’.

Valuation of exports by Customs/STPI/SEZ is a crucial part of process

As described above, there are two policy aspects embedded here,

  1. Regulation of foreign remittances by RBI against export done by exporter (the origin of this procedure and policy behind lies in the name of GR form – “Guaranteed Remittance”) and
  2. Valuation of export done by Customs officials at port of shipment (by STPI/SEZ for SOFTEX)

The second part of the process is “valuation of exports”. Exporter declares the value of exports supported by relevant documents. The designated officer in customs/STPI/SEZ considers and certifies this value and has all right to reject the value declared or examine any declaration for overtly undervaluation or overvaluation. The process is very smooth and in more than 99.9999% cases the value is accepted and certified. Rejections are only subject to a real doubt, unlawful trade happening and exporter not able to justify genuine exports. The valuation is done under the Customs Valuation (Determination of Value of Export Goods) Rules. Since there is no separate rules defined for ‘Software’ and the export oriented units (STP, SEZ, FTZ, EPZ) operate under customs bond, the same rule applies to ‘Software’. In absence of a rule for non-EOU exporters the law would rely on same rule as well.

An export of goods and software without valuation is incomplete. RBI depends on designated officers for this valuation exercise as they are the ones who have delegated powers under the constitution to do so.

A form not certified by jurisdictional designated officer is incomplete, legally.

Who should not file EDF or SOFTEX?

An exporter of physical goods has no option other than filing EDF, as goods passes through the port of shipment managed by customs. Similarly, exporter registered under STP and SEZ has no option as the value to be accounted as exports by exporter is taken from the SOFTEX forms signed in name of the exporter.

Exporters of Software (both IT and ITeS companies) not registered in STP or SEZ (or other EOU schemes) scheme should also file SOFTEX, as per foreign trade policy.

Such exporters popularly called non-STP units can file for SOFTEX with jurisdictional STPI Director.

Only those exporters whose exports are not goods or Software can escape the filing of SOFTEX. The foreign remittances received as exports proceeds, without certification of EDF (replacement of GR/PP form) or SOFTEX form will fall in two categories, either a general service or an unlawful remittance.

Exports of services that do not fall under IT and ITeS category are exempted from filing the export declarations and certification required thereof.

What is covered under the term ‘Software’ in RBI circular

The RBI circulars on SOFTEX mentions exports of ‘Software’. It implies both IT and ITeS exports. The genesis lies in how foreign trade policy evolved, ever since STP scheme was added to the bandwagon of export oriented schemes.

‘IT’ covers both Software services and Software products (including SaaS). Software services is a whole lot of things from consulting to design, development, implementation, maintenance, re-engineering of Software or a Software product.

‘ITeS’ covers all those services that are delivered to clients across borders of India using an IT driven system and process over a telecom/internet link (include BPO, KPOs, Digitization, Call centers, Data processing etc.).

What happens if exporter does not file SOFTEX (or alternative EDF) form?

If SOFTEX (or EDF in case of physical exports) form is not filed, and exports proceed is realized, the remittance received is either treated as ‘general services’ or not as an export proceed or illegal.

For general services such as management consulting, technical services there is no declaration form.

Advice for Software product including SaaS companies

For Software exporting companies not operating under STP or SEZ, it is possible to bypass and get remittances without filing SOFTEX or EDF, under the guise of a ‘service’ export. There is no immediate threat of non-compliance, unlike the exporters in STP or SEZ.

However, not getting classified as ‘software’ can create problems in future. First problem created is your exports are not ‘Software exports’. The other problems can erupt from regulations in other areas of taxation etc. Complex Service tax rules can create problem. Any situation, where an exporter will need to prove and protect herself can end up in to a nightmare.

The important part here is the export valuation process by STPI, SEZ or Customs. Once EDF/SOFTEX form is certified, your export is also certifies as export of ‘Software’, under foreign trade policy.

For Software product companies including SaaS companies, is it advisable to mandatorily file SOFTEX form or and EDF form for Software product export in physical media, even when they are not part of STP, SEZ or similar schemes.

iSPIRT efforts in further liberalization of SOFTEX \EDF

Many argue, why this documentation. The need to declare export value, monitor foreign remittances, export valuation and balance of trade & payment accounting will not vanish for a nation state. There has to be some minimal documentation and process to fulfil all these needs.

However, there is scope for further liberalization and need for an easy liberal regime for ‘ease of doing business’.

iSPIRT is aiming for a 100% “Digital” SOFTEX and EDF run under aegis of RBI, where the process can be executed and compliance completed even at single invoice level or a monthly consolidated statement level, based on various practical needs, with export declaration fully ‘dematerialised’.

This is much needed for a ‘digital economy’ and can be a boon for exporters especially in SaaS segment and startups, where orders and invoices are generated online. And online interface can be extended in to a fully ‘digital’ export declaration regime of RBI.

India to progress to a Product Nation, in a digital world, has to take some of these steps. Sooner the better.

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Taxation and “Digital Economy”

Background

There two precursor blogs recently published to this new article on taxation of digital economy, which are helpful in understanding the context for Software product industry in general and especially for SaaS.

  1. ‘SaaS’ – the product advantage and need
  2. ‘SaaS’ – indirect tax issues in India

Here is a brief overview.

The first blog, made a case for SaaS industry to be a formidable part of the Indian Software product industry (iSPI).

The second blog, explored the problems of double and confused indirect taxation, GST and its implications, applying a product definition as different from service and need for a clear distinction between a ‘product’ and ‘service’ or ‘digital goods’ and ‘digital service’.

This third blog is based on excerpt from representations and notes pursued with the Ministry of finance in last few months, as a solution to the problems in a larger sphere i.e. the emerging “Digital Economy”.

The Tax system if fragmented

The taxation on ‘intangible’ goods and services has been marred with double taxation, confusion, and litigations. The biggest cause of this broken tax system is that tax authorities have been giving piecemeal approach to the taxation in this sector.

Until December 2006, there was no indirect tax by central Govt. on Software. In 2006, excise duty was levied on Software and until 2008, there was only excise duty + VAT (even VAT was exempted till such date in many states) payable on Software. In 2008, Software came under the purview of service tax and for a long time until February 2010, a large number of Software product companies paid both excise duty and service tax, plus the VAT in states. This continued until the pronouncement of notification No. 2/10 No. 17/2010-Service Tax Dt. 27th February 2010, which exempted Software product companies from payment of service tax, if the excise duty or customs duty was already paid on same.

An example problem (on Service tax +VAT) of this fragmented tax system, for Software product industry, has been illustrated in previous blog, ‘SaaS’ – indirect tax issues in India.

Similarly on direct tax front, the finance act 2012 subjected income from sale of Software as “Royalty Income”, and therefore subject to TDS of 10% on every sale. A book is traded as a product (a tangible good), whereas the contents are copyrighted. So a buyer buys the book and not the copyright. Similarly in the case of a software product, the buyer buys the product and not the copyright. However, the tax treatment is as if the buyer has purchased the copyright.

In a period between 2006 to 2012, the Software product industry has been subjected to many such bottlenecks. The tax authorities acted in a piecemeal basis, to first apply a tax to increase the tax net and then had to make course correction through several patchwork notifications in multiple steps, resulting in to a fragmented tax system.

The cause of this piecemeal approach has been that Software product (being ‘intangible’ product) is not recognized and treated at par with other products. We have proposed that defining ‘digital goods’ and ‘digital services’ clearly may solve the problem.

Let us understand, why there is a focus needed on ‘digital’ and why the ‘goods’ parlance is needed.

Digital economy is about digital goods and digital services

India has rightly embarked on a path for “Digital India” in line with world economies in transforming to a “Digital Economy”. The move, in 2015 budget towards a ‘near cashless’ has been boosted with UPI launch, which will further significantly contribute to the transformation in to digital economy.

The ‘digital economy’ will be overwhelmed with ‘Intangibles’ i.e. ‘digital goods’ and ‘digital services’. Software, may not just be standalone computer program. It may work with either data, audio or video products. Similarly the audio, video, data and document products may have a software product running them. Hence Software product, sounds, images, data, and documents or combinations of them may exist as a ‘digital product/goods’.

Recognizing the tradability in ‘digital goods’ is one the most important need of a ‘digital economy’. The volume of such trade will be huge in future as the digital economy is unleashed. Anderson said, “Software is eating the world”. IoT is a reality now.

All this pointing to, a ‘digital economy’, that will be overwhelmed with trade of not only ‘digital goods’ and ‘digital services’, but also the trade of ‘right to use’ or ‘transfer of right to use’ just as there is ‘deemed sales’ or ‘transfer of right to use’ of tangible goods.

All these reflect the pervasiveness of digital in future economies, as well as inseparable pervasiveness of Software products in the digital world. The buzz word is now ‘digital’, end-to-end.

Why Digital?

Since a digital economy will be about a converged digital world where Software products will also be inseparably pervasive, taxation issues of Software product industry should be dealt in a unified ‘digital economy’ domain, where ‘digital goods’ and ‘digital services’ will be the produced and supplied.

If tax authorities just focus on Software, it will again create another patchwork and will not provide long term solution, for the evolution that is happening with greater velocity now. Focusing on ‘digital’ will provide strategic solution to the problem at policy formulation level. And hence, the issues of the Software product industry can be dealt with by clearly defining “Digital Goods” and “Digital Services” in the tax system.

Digital goods and service definition

It has been already illustrated in ‘SaaS’ – indirect tax issues in India the COG-TRIP test can be used to identify a Software products as different from Software service. However, in order to align with existing Indian legal system and the evolving international practices, following definitions (based Digital Goods and services Tax Fairness Act[1], a bill pending in USA) at structural level has been proposed.

These proposed definitions are just the guiding factors that can be used as a starting point by the Government of Indian in this direction.

DIGITAL GOOD – The term “digital good” means any software or other good that is delivered or transferred electronically, including sounds, images, data, facts, or combinations thereof, stored and maintained in digital format, where such good is the true object of the transaction, rather than the activity or service performed to create such good.

DIGITAL SERVICE – The term “digital service” means any service that is provided electronically, including the provision of remote access to or use of a digital good.

For purpose of above definitions, the term

(i) “Digital Goods” means “Goods” as defined in 366(12) of the Constitution

(ii) “Digital service” means a “service” and that which is not a “Digital Good”

(iii) “Delivered or transferred electronically” means the delivery or transfer by means other than tangible storage media, and

(iv) “Provided electronically” means the provision remotely via electronic means

(v) “Software” is a representation of instructions, data, sound or image, including source code and object code, recorded in a machine readable form, and capable of being manipulated or providing interactivity to a user, by means of a computer or an automatic data processing machine or any other device or equipment. And, “Software Product” is a standardised set of such software bundled together as a single program or a Module that directs computer’s processor to perform specific operations, exhibiting the properties of an intangible good that can be traded.

Explanatory Note:

In legal parlance, the ‘goods’ exhibit the following properties:

iSPIRT has proposed a COG-TRIP test[2] for identifying it as Software products. The same definition overlaps with the following legally tenable definition and explanation on detailed attributes.

  1. Durability (perpetual or time bound)
  2. Countability – traded commodity can be counted as number of pieces, number of licenses used, number of users etc.
  3. Identifiability – identified as a standardised product
  4. Movability and storage. Can be delivered and stored and accounted as an inventory
  5. Ownership of the right to use
  6. Produced/Reproduced through a process
  7. Marketable/Tradable or can be marketed and sold using standard marked price (except when volume discounts, bid pricing and market promotion offers are applicable).

‘Goods’ as distinguished from services that are consumed either instantly or within very short period of time or continually coinciding with the activity of provision of service.

‘Digital goods’ exhibit all these properties plus the property of being stored and maintained digitally.

This definition of ‘digital goods’ will also imply, that their sales and purchase will be governed by same laws as for “Goods” in the constitution and various acts thereof. Hence just as ‘Goods’ are subject of ‘sales’ under article 366(29A) so will be ‘digital goods’. It is important in the context of ‘ease of doing business’ in trade of ‘digital goods’ and removing the present confusion on taxation in trade of ‘digital goods’.

The ‘right to use’ as a deemed sales of digital goods to be used or consumed at future instance(s) can also be delivered or transferred digitally. It can be a PIN or a Password or a combination of biometric and password to allow access to digital goods.

In digital economies, many a times ‘digital goods’ are stored on a remote server or maintained digitally on a remote location by a producer or its agents/dealers/distributors for use or access by clients and users.

An act of use or remote access of ‘digital goods’ by using the access PIN or password acquired in advance through a trade or commerce transaction in ‘right to use’ of such ‘digital goods’ shall be an act of trade or commerce in ‘digital goods’ and not of ‘digital service’.

Recommendations made

Following recommendations were made:

  1. Definition be introduced through a bill/finance act in future.
  2. Also a clarity be inserted that, ‘digital goods’ will mean “goods” for all purpose, including ‘tax on the sale or purchase of goods’ as defined in Article 366(29A) which also includes the ‘transfer of right to use digital goods’.
  3. Both indirect tax (in future) GST and Income tax Act, should to refer to the same definition for purpose of ‘digital goods’ and ‘digital service’.
  4. Need for a Tariff code (HS Code) for ‘digital goods’.

The future lies with recognition of ‘digital goods’ as an international standard and WTO involvement in the accepting these principles.

In the interim, India can adopt a workable solution.

At present, all that is not covered under HS Code classification as given below (mostly software/digital goods downloaded online or SaaS Software) is treated as a service, despite the fact that packaged software and SaaS is the same whether traded on a media or online as a medium.

HS Code Item Description
4907 00 30 Documents of title conveying the right to use Information Technology software
4911 99 10 Hard copy (printed) of computer software (PUK Card)
8523 80 20 Information technology software on Media

Source: DGFT HS Code Database and CBEC

A HS code classification for following categories can be issued using the last 2 digits (first 6 Digits being defined under international system) Or Until a global harmonious classification emerges a codes may be defined under chapter 98/99.

Following category of definition will solve the issues of Digital Goods

(i) Pre-packaged software (Software Product) downloads

(ii) Software Product supplied as S-a-a-S model

(iii) Sale of ‘right to use’ digital goods

(iv) Digital Goods other than Pre-packaged Software

Some countries have created a HS code under 98/99 for Downloaded Software e.g. China has a code under 980300 for Computer software, not including software hardware or integrated in products. Similarly some countries are using 9916 as a code for pre-packaged software.

Conclusion

The above proposal of definition and the measures in recommendations can solve the issues faced by the industry, help in ‘ease of doing business’, lubricate trade, ensure neutrality and fair practices as well as provide the much needed level playing field.

The proposal does not create any loop holes in system as it does not recommend the change in the tax regime. It merely recommends the changes desired to accommodate the rise of digital economy.

The Software product industry can be the biggest beneficiary of this and members in Software product industry should take up this concept with Govt. of India with full force to help in rise of India as a Product Nation.

References

[1] Digital Goods and services Tax Fairness Act, USA, https://www.congress.gov/bill/113th-congress/senate-bill/1364/text

[2] A framework developed by iSPIRT, under leadership of Shri. Bharat Goenka of Tally Solutions

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An Indian Fintech Entrepreneur’s Views on UPI

Ever since UPI (Unified Payments Interface) alpha launched on 11th April 2016, I see much confusion amongst various stakeholders. For me, the most relevant question is will UPI kill payment gateway aggregators and PSPs (payment service providers) ?

My answer is No. If you’re interested to know more, please read on…

To understand in detail, let’s understand below 5 pointers:(1) What is UPI (Unified Payments Interface) & what is it’s objective ? And who is an Aggregator /PSP & what is their objective?

For the uninitiated, UPI is a layer on top of the IMPS etc (see image above) which will work on a network of banks, facilitating account-to-account transfers in a simple and secure manner .

In other words, UPI (standalone) will just be another way of transferring funds from ones’ bank account to another without going through the hassles of adding someone as a beneficiary / IFSC / account no (NEFT) or entering MMID / mobile no (IMPS) . The objective is to simplify the payment process vis-a-vis NEFT / IMPS which didn’t reach critical mass required to make India cashless — both from person-to-person (P2P) and merchant payments standpoint.

Whereas, a n aggregator /PSP is one which continuously works towards empowering its customers aka Merchants ( in our case, mostly long-tail online merchants and individuals desirous of collecting online payments) with as many payment options possible & more. For example, debit cards, credit cards, net-banking, cash-on-delivery, IMPS, cash deposits, prepaid wallets etc. The objective is to provide one stop payment collection solution that encompasses all possible payment instruments in one bucket. But that is not all. The PSPs also supports its clients by creating new products & features to enhance their business outcome too!

Now here is what a PSP brings to the table which UPI does not today :

  • Provide other payments instruments which comprises a significant majority portion (~ 60 -80 %) of the total online payments. May be, UPI might become the new net-banking, by replacing it as a payment mode.
  • Detailed information on received payment (who paid & for what), apart from providing transaction management, reconciliation, insights etc.
  • Customisation at every level (payment options, payment page, etc) which is beyond a simple push-n-pull movement of money via UPI.
  • Trust custodian — one who provides protection against any dispute between merchant & consumer (this is completely missing in UPI today).

(2) What UPI adds to existing systems & processes?

The apps that will be built on top of UPI architecture might not only be easy to use — but the mobile first, secure & interoperable ( any bank to any bank) nature of UPI makes it one of a kind. With the learnings of digital wallets and IMPS adoption in the past , NPCI now has all the ingredients to revolutionise the the way Indians pay one another.

(3) Can UPI act as a catalyst and benefit Indian Fintech ecosystem?

We at Instamojo will add “UPI as a payment option” in the checkout page (representation image below) along with other available payment instruments and ride the wave of consumer adoption.

(4) Can UPI adversely affect anyone in the Fintech space?

Launch of UPI at this time is actually a blessing in disguise for payment agnostic players like Instamojo. Because the likely causalities of UPI will be those who have invested time & money in building non-interoperable and siloed products. Namely,

  • Digital wallets — UPI doesn’t allow interoperability of wallets on its platform today. Hence, P2P payments might shift entirely via UPI.
  • Net-banking network providers — Many players in the ecosystem had long enjoyed the relationship they had with each banking partner to put the net-banking infrastructure in place. If UPI picks up, it might become a one stop solution to get connected to all the network of banks due to inter-operability. Thus making all their hard work redundant. Now simply getting connected with UPI architecture via one banking partner will give exposure to all others banks required to process merchant payments.
  • Card network providers — If UPI is going to hurt anyone in a meaningful way, it will be the card networks like VISA/MC which will loose out of the Debit Card interchange to some degree, provided RuPay card become predominant.

Moreover, this revolutionary approach might make more consumers “online payment ready” in a very short span of time. And I hope, what Telecom revolution did for communication, UPI does the same for the Fintech space in India.

(5) What happens if UPI takes off massively?

Most digital wallets will lose relevance in the P2P payments space and will ultimately phase out and die like good old pagers . However, there can be a counter argument that in a winner-take-all or winner-take-most market, the digital wallet provider with largest merchant acceptance network might win due to inter-operability as consumers would gravitate towards the player which provides max fungibility for one’s wallet balance.

So, merchant payment collections via net-banking and wallets will be replaced by UPI. VISA / MasterCard will loose it’s share of revenues from debit card processing since RuPay (India’s own VISA/Mastercard) will share the interchange nuggets which is part of UPI now.

However, aggregators and PSPs will still be central to a Merchant, since such players bring other modes of payment collections too e.g. credit card, unified reconciliations of orders with payments, integration & APIs, customization, industry specific pricing & features, data and analytics and possibly discovery — apart from UPI enabled payments too!

On top of above, an online Merchant who is shifting from NEFTs / Cheque / Cash to PSPs for their payments need, will still turn t o the PSP as the pain-points still remains the same , with or without UPI coming into play i.e.

  • Integration & APIs
  • Order and transaction management
  • Unified reconciliations — orders with payments
  • Refund management
  • Dispute resolution
  • Customization — at every level
  • Industry specific pricing & features
  • Data & analytics
  • Support management
  • Risk management

Even if UPI solves all the above issues for an Online Merchant, they will still solve a portion of their payment collection needs, as UPI does not support VISA / Mastercard led credit card processing which stands at 20–25 Mn active users in India today.

Conclusion

It is evident that UPI is a boon and might be the much needed catalyst to increase the digital shopper base of India and in the process, might take a stab at the real enemy — CASH or unaccounted money exchanging hands; thus hurting the progress of our economy!

Hence, UPI is working very closely with banks under the guidance of RBI. In turn, banks are partnering with various players to take this new payment instrument to merchants & consumers.

Footnote:

  • For an aggregator/PSP , it will all be the same — only the graph of the credit card processing will dip while a new segment will rise.
  • Lastly, if someone thinks that banks will themselves act as an aggregator and offer UPI directly to the Merchants. W ell , they tried that before by offering IMPS to merchants which did not work . For argument s sake if one says it failed because of the complex MMID etc and now with a simpler process it will work, it won’t work for entire suite of payment instruments that a merchant needs.
  • And finally, if one believes that banks would offer a bundled solution of Cards + UPI — well I would say its will be a good debate to be a part of but end of the day, even banks know what they are good at i.e. retail banking / CASA / lending & deposit arbitrage!

Credits:

Guest blog post by Sampad Swain, Instamojo. The original article can be accessed here

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Rajasthan – The Next IT & Startup Hub of India

Enabling Startups to apply for Govt. Projects

Over the past few years, the startup ecosystem has witnessed exponential growth within the country, with a positive impact on the startup framework as well as the economy. Information and communication technology (ICT) has profoundly changed almost all aspects of society. It is now central to how people communicate, interact, make decisions and do business. This includes the way governments operate and deliver services, and startups providing out of the box approach to utilizing Information Technology.

We, with the vision to achieve Good Governance and facilitate inclusive growth, harnessing ICT and evolving eGovernance with improvement in services, bridging the digital divide and evolving Digital Rajasthan, are committed to provide efficient, reliable and transparent government to help startups and grow IT/ITeS, ESDM and Robotics in Rajasthan.

Rajasthan_ITstartupRajasthan intends to play a pivotal role in various dimensions of the startup ecosystem, with the main focus on promotion of Startups and making Rajasthan the Startup, Incubation and Entrepreneurship hub of North India. We, through Rajasthan IT Day on March 21, 2016 forged the inception of a new era for making Rajasthan a platform and destination for Information Technology in India.

Rajasthan is aggressively moving on the path of being the IT Hub of India – ensuring an environment which is dynamic, supportive and reliable for development of IT as a sector.

We are creating IT standards and benchmarks on three pillars – Confidentiality, Integrity and Availability.

Rajasthan has proved to be the trendsetter in eGovernance initiatives, ensuring the maximum ease to residents till the last mile in connecting with the Government as well as getting benefits at their doorstep.

We are the first state in the country to have implemented an integrated and unified eGovernance Framework, ensuring a world class coherent environment of integrated platforms – maximizing utilization and minimizing investment for betterment of eGovernance initiatives in the state.

We are moving aggressively towards making Rajasthan the dream destination of IT investment and promotion in India and SAARC. We are committed to translating our vision into reality, utilizing initiatives like Digital India, Smart City, Smart Grids etc. along with the finer points of Governance – citizen centricity, service orientation and transparency.

We expect the IT Sector and Startups to assist, advise and partner with us in this journey towards achieving the Technology vision with seamless integration between departments and optimal investment encouraging innovation.

The formidable and enlightening support of IT industry shall act as a catalyst for our mission of bringing Information Technology achieve new heights in Rajasthan with an absolutely dynamic IT environment.

At the IT Day, our diverse and dynamic group of speakers and panelists provided in-depth insight, as well as, actionable and practical tools of engagement models, methods and mechanisms (3Ms); and were able to share how the 3Ms could be utilized to promote the IT sector in Rajasthan to become more effective in the on-going efforts of Government of Rajasthan in the sector.

With the aim to fulfil the commitment of promoting startups in Rajasthan, Be Startup – Rajasthan program is envisaged to be initiated by Department of Information Technology & Communication and RajCOMP Info Services Limited, which will ensure providing a platform for Startups in Rajasthan to showcase their skillset and talent, and give ample opportunity to get associated in eGovernance projects benefitting not just themselves, but also the state in the lager perspective.

To further our effort, Government of Rajasthan is initiating the “Be Startup – Empanelment Platform” providing enormous opportunity for the IT Startups to get engaged and work for the Government, getting experience as well as boost to grow. The details for the same are available at our Startup Promotion Platform website: http://itstartup.rajasthan.gov.in RISL envisages obtaining inputs and feedback on the draft RFP for the said empanelment from Startups and Entrepreneurs who intend to get engaged with RISL for its projects.

You are requested to provide your inputs/feedback on [email protected] by April 15, 2016. The same would be evaluated and considered with the final document pertaining to the empanelment.

I urge the IT industry to rise, participate and support whole heartedly to this endeavour of promoting Digital Rajasthan. I assure of our commitment to bring about this evolution in Rajasthan.

Akhil Arora, Secretary & Commissioner, Information Technology & Communication, Government of Rajasthan

Message from the iSPIRT Policy Team:
“We would like the Software Product Companies to share their view on the above RFP process which should enable buying from Product Startups. Please do also feel free to reach out to [email protected] for any comments/thoughts which you may have on the above.”