New TDS provisions for Online Gaming likely to pose compliance challenges for users & industry: Report

A report by Lakshmikumaran & Sridharan provides a detailed overview of the new taxation regime announced during Financial Bill 2023

India, March 3, 2023: Lakshmikumaran & Sridharan (LKS), a premier full-service Indian law firm specializing in taxation, has in a comprehensive white paper analyzed the proposed TDS changes announced for the Online Gaming Industry in the Union Budget 2023. The white paper welcomes the Government’s initiative to provide clarity on direct taxation of online gaming and highlights the potential challenges, their impact on users and industry and proposes solutions to address the same.

The online gaming industry till now was deducting TDS on winnings under section 194B, which had a threshold of INR 10,000 per game post which the tax was deducted at the rate of 30%. In the Union Budget 2023, the Finance Minister announced a separate new section 194BA for TDS on online gaming. Under the new section, the Online gaming platforms are expected to deduct 30% TDS on net winnings. The computation of ‘net winnings’ shall be prescribed separately.

While this has been a welcome move for the industry, it has posed a conundrum as well. This is because the current section 194B is being amended and while the amendments in the section 194B come into effect starting April 01, 2023 the new section 194BA comes into effect only on July 01, 2023.

This essentially means that for a period of 3 months between April 01- June 30th, 2023, the online gaming industry will have to comply with the amended 194B and undergo two different compliance framework changes  within three months. This can cause a lot of confusion for the users and pose a huge compliance challenge for the industry.

Commenting on the report, L Badri Narayanan, Executive Partner, LKS, said, "While the new proposed TDS changes bring in the much needed recognition for online gaming, the compliance complexities do pose a challenge. The application of two different tax deduction changes within the same financial year may result in massive confusion for players who may inadvertently not be able to comply or end up losing money. It may also lead to a mismatch between the winnings reported by OGIs and actual taxable net winnings of the users. Additionally, it would require significant education of the 20+ crore online gaming players, which would be an arduous task.”

He added, “Historically, when such changes are carried out, only one regime change is prescribed to allow for sufficient time to implement. The Government should ideally conduct industry consultations to understand their concerns and notify the rules accordingly.”

According to the whitepaper, the proposed solution to these probable issues would be that threshold amendments to Section 194B should be brought into effect from July 1, 2023 for a smooth transition as has been the practice for earlier amendments. It is also crucial that the tax return filing process for users at the end of the financial year remains seamless. The report also proposes certain principles that may be adopted for calculation of net winnings, reflecting upon the intent of bringing these amendments.

The government and the industry can reap the benefits of this sunrise sector, provided all the concerns are addressed in a holistic manner. India has emerged as a pioneer in the online gaming industry, contributing over INR 22,000 crore in revenue to the exchequer. With a projected Compound Annual Growth Rate (CAGR) of 38%, the industry has the potential to empower the "Make in India" and "Brand India" vision.

About Lakshmikumaran & Sridharan

Lakshmikumaran & Sridharan (LKS) is a premier full-service Indian law firm specializing in areas such as corporate & M&A/PE, dispute resolution, taxation and intellectual property. The firm, through its 14 offices across India, works closely on litigation and commercial law matters, advising and representing clients both in India and abroad. The firm has handled more than 30,000 litigation cases before various forums including 2,000 cases before the Supreme Court of India. Over the last 37 years, the firm has worked with over 15,500 clients which range from start-ups, small & medium enterprises, to large Indian corporates and multinational companies.

The professionals within the firm bring diverse experience to service clients across sectors such as commodities, automobile, manufacturing, healthcare, IT/ITeS, FMCG, hospitality, real estate, petrochemicals, e-commerce, fintech, big data, renewables, cryptocurrency, gaming and sports. The firm takes pride in the value-based, client-focused approach that combines knowledge of the law with industry experience to design bespoke legal solutions.

The firm’s driving principles to achieve our vision are integrity, knowledge, innovation, and collaboration.

(An Innovation Studio Feature Article)

The information is provided for general informational purposes only and should not be relied upon as legal advice