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Here's how to navigate complex TDS rules for online ads, software subscriptions and e-commerce sales
Every month, Ranjani Purohit, a women's apparel manufacturer and seller in Jaipur, has to set aside an extra ₹50,000 just to fulfill her tax deducted at source (TDS) obligations. Purohit is liable to deposit 2% TDS on the advertisements she runs on Facebook, Google and other online marketplaces, but is forced to pay this tax out of pocket, given the nature of these transactions.
Big marketplaces such as Facebook and Google demand full payment upfront for running ads, without any deductions. This is contrary to the very definition of TDS, said Lokendra Singh Tomar, a chartered accountant (CA) in Jaipur. 'TDS provisions require the payer to withhold tax at the source, deposit it with the government on the behalf of the receiver, and remit the remaining payment. But big companies such as Google, Meta, Amazon and Flipkart have structured TDS provisions applicable to payments made to them on reimbursement basis."
Terms laid out by these marketplaces clearly sate that the business has to make the full payment for prepaid ads. This businesses with no option but to deposit the TDS out of pocket and get it reimbursed later, Tomar added.
Cash crunch for small businesses
While the reimbursements are honoured in full, the process often blocks substantial capital for businesses with big advertising spends, often creating a cash-flow crunch for small entities.
'The reimbursements can only be filed once every quarter. On an average, ₹1-1.5 lakh of my business's working capital gets blocked for three months in TDS paid towards online ads," said Purohit.
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Apart from online ads, TDS is structured similarly for certain types of fees sellers pay to e-commerce websites and subscriptions of online services such as Microsoft Office, Adobe, and cloud services, among others. Small businesses should be careful to deduct the applicable TDS on such payments as not doing so can attract penalties, and such payments can't be booked as expenses.
Mint breaks down these key TDS provisions that small businesses should be aware of.
Advertisements
Businesses are liable to deduct 2% TDS on advertisements, including online advertisements, under Section 194C when the turnover is over ₹1 crore in business or over ₹50 lakh in profession. The TDS applies if the ad value exceeds ₹30,000 in a single transaction or ₹1 lakh annually. 'The rate is 1% if an individual or HUF (Hindu Undivided Family) is liable to deduct TDS," said Sambhav Daga, a CA and founder of Zaptax Advisors.
For online advertisements, after the invoices of all the ad spends done in a month are issued, the businesses should deposit TDS with the government on the basis of those invoices. After filing the TDS return, they must issue Form 16A to the companies on which ads were run and claim the TDS amount back. All marketplaces including Amazon, Google, Facebook and Instagram have dedicated email IDs or support forums on their websites where Form 16A can be submitted to claim reimbursement.
Note that all marketplaces have different timelines to claim reimbursements and that these timelines are sacrosanct. For instance, Google asks for TDS certificates to be issued quarterly—by 30 July, 30 October, 30 January and 15 May—for the quarters ending in June, September, December, and March, respectively. Meta asks for all the certificates to be submitted by 31 October for the previous fiscal year.
'The business must furnish Form 16A by the said dates, otherwise the reimbursement may not be processed and they will lose the money deposited as TDS," said Daga.
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Businesses that run ads on Facebook and Instagram have a way to escape the reimbursement cycle, Tomar said. 'Once a business has been regularly running ads on Facebook and Instagram, Meta can extend a credit line that can be used for ad spends. With a credit line, Meta offers a monthly invoicing system that allows businesses to pay later for the ad spends incurred during a month instead of paying upfront. In this case, the business can deduct TDS at source and escape the reimbursement cycle," he explained. 'However, businesses don't automatically get this facility and have to contact Meta to check their eligibility and avail of it."
Prakash Hegde, a CA in Bengaluru, said Section 194C provisions don't apply if the ads are billed by a non-resident entity. 'For many businesses, ad accounts on Meta are not set to the Indian entity and rather Meta Ireland. In this case, the invoice is issued by Meta Ireland and hence, TDS under Section 194C doesn't apply. The other examples are ad invoices billed by Google US or LinkedIn Singapore. Earlier, an equalisation levy of 2% was applicable on these, but it has been withdrawn from the current financial year," he said.
Subscriptions and royalties
The other important payment where businesses are liable to deduct TDS are fees for software subscriptions. When the subscription is for a service by an Indian entity, for example Google Cloud India, TDS of 10% under is deducted under Section 194-J. However, the subscription fee paid to a non-resident entity attracts 20% TDS under Section 195.
For domestic subscriptions, similar to ads, big tech companies ask for the full subscription amount without deduction of taxes for their services. So, the business itself must pay the TDS and claim a reimbursement for it. However, the process becomes tricky when the subscription is for a service by a non-resident vendor. Adobe, for instance, doesn't have an Indian entity so its subscription is billed to Adobe US or Adobe Ireland.
In the case of foreign entities, many companies refuse to reimburse the TDS as they are not liable to be compliant with Indian income tax laws and hence don't want the hassle of processing refunds, said Hegde. In this case, businesses have two options – submit the tax residency status of the company to avoid TDS deduction liability or the grossing up mechanism.
In the first option, the business should ask the foreign company whose software they have subscribed to for a permanent-establishment declaration and their tax residency certificate (TRC). By submitting these documents, the businesses will not be required to deduct TDS on software subscriptions as per a Supreme Court judgement, said Hegde.
'In its judgement dated 2 March 2021 in the case of Engineering Analysis Centre of Excellence Private Limited Vs The Commissioner of Income Tax, the Supreme Court held that the amount paid by resident Indians to non-resident manufacturers/suppliers of computer software under a distribution agreement or end user licence agreement does not amount to royalty and that such payment is not taxable in India," he said.
Hegde added, 'The 20% tax rate is as per the Indian income tax always. But once a business gives a declaration that it doesn't have a business establishment in India along with the proof of its tax residency in another country, the provisions of the double taxation avoidance agreement (DTAA) between India and that country apply. Under DTAAs, software subscriptions are not treated as royalties. DTAA overrides the IT Act and hence, TDS provision as per IT laws doesn't apply."
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In this case, avoiding TDS depends on the foreign entity's willingness to submit a TRC and establishment declaration. For a small business, it may not always be possible to get these documents from a foreign entity, so the only option is grossing up.
Grossing up in income tax means increasing the payment to be made to the recipient to cover the tax that will be withheld on that payment. For example, say an Indian business, ABC, has to pay a ₹10 lakh subscription fee to a non-resident entity, XYZ, and 20% TDS applies. Company XYZ wants the full ₹10 lakh payment. Under the grossing up mechanism, tax authorities will treat ₹10 lakh as the net payment after deducting the 20% tax, so ₹10 lakh becomes 80% of the taxable amount. Now, ABC has to calculate and deposit 20% TDS on ₹12.5 lakh (Rs10 lakh is 80% of ₹12.5 lakh), which works out to ₹2.5 lakh.
Vijaykumar Puri, partner at VPRP & Co, said the benefit under grossing up is that the Indian business can claim the entire TDS amount as an expense. 'They will not get reimbursement on the TDS amount, but it can be deducted from the revenue as an expense," he said.
However, grossing up should be the last resort to use only if the foreign entity neither agrees to provide a TRC nor reimburses the TDS, as it is an added expense. In the example above, ABC ends up paying ₹2.5 lakh TDS instead of ₹2 lakh.
Selling on e-commerce websites
TDS provisions for businesses that sell on e-commerce websites changed considerably after the Central Board of Direct Taxes (CBDT) exempted marketplace fees, which include the platform's own commission, from TDS starting December 2023. Earlier, the seller had to pay TDS on the platform's fee and claim a reimbursement on it.
Now, the seller only has to deduct TDS on those fees that are not directly related to an order. These include storage fees, ad services fees and inbound transportation fees, among others.
Queries sent to the companies mentioned in the article did not elicit an official response.
