Buyer to deduct TDS on peer-to-peer VDA transactions, clarifies CBDT

The income tax department on Tuesday said both buyer and seller will have to withhold taxes for transactions involving an exchange of one virtual asset for another.

Issuing a further set of clarification, the Central Board of Direct Taxes (CBDT) also said according to section 194S of the I-T Act, the buyer will have to deduct tax in a peer-to-peer transaction of virtual digital assets (VDA).

"Thus, in a peer-to-peer (ie buyer to the seller without going through an Exchange) transaction, the buyer (ie person paying the consideration) is required to deduct tax under section 194S of the Act," the CBDT said.

With regard to liability to deduct tax at source under section 194S of the Act when the consideration is in kind or in exchange of VDA, the CBDT said in this situation, the person responsible for paying such consideration is required to ensure that the tax required to be deducted has been paid in respect of such consideration, before releasing the consideration.

Giving an example, the CBDT said in a situation where VDA "A" is being exchanged with another VDA "B", both the persons are a buyer as well as a seller. One is the buyer for "A" and seller for "B" and another is the buyer for "B" and seller for "A".

"Thus both need to pay tax with respect to a transfer of VDA and show the evidence to other so that VDAs can then be exchanged. This would then be required to be reported in TDS statement along with challan number by both of them," the CBDT said.

Nangia Andersen LLP Partner Sandeep Jhunjhunwala said that where the consideration is partly in kind and the cash component is not sufficient to discharge the TDS liability, the CBDT has provided the buyer with leeway to ensure that the seller has discharged appropriate taxes before releasing the consideration.

"This comes as a relief for buyers who, sans this clarification, would have to bear the TDS cost without any recourse for recovery from the seller and also circumvents the seller from taking undue credit of such taxes disposed of by the buyer," Jhunjhunwala said.

AKM Global Tax Partner Amit Maheshwari said this shall increase the compliance burden for both buyers and sellers in transactions happening outside exchanges unlike in the case of an exchange, where the exchange would take care of these compliances, here the buyer will have to do the compliances.

"Though the buyer and seller will not be required to apply for TAN for depositing the TDS under 194S, other implications of section 206AA for non-furnishing of PAN to each other would still be required to comply with. Also, once withholding is done under 194S, there is no need for further withholding under any other section," he said.

AMRG & Associates Director (Corporate & International Tax) Om Rajpurohit said the strict TDS compliance requirement when trading in virtual digital assets is understandable given that the government does not want to promote such trading while also reiterating its firm stance against any misuse of unaccounted money.

Last week, the CBDT had clarified that in the case of VDA transactions happening through exchanges, the onus of deducting 1 per cent TDS would primarily be on the exchanges.

The TDS provisions on VDA or cryptocurrencies, announced in the 2022-23 Budget, will be effective from July 1.

The 2022-23 Budget has brought clarity with regard to the levy of income tax on crypto assets. From April 1, a 30 per cent I-T plus cess and surcharges, is levied on such transactions in the same manner as it treats winnings from horse races or other speculative transactions.

A 1 per cent TDS on payments over Rs 10,000 towards virtual currencies has also been introduced, which will kick in from July 1. The threshold limit for TDS would be Rs 50,000 a year for specified persons, which includes individuals/HUFs who are required to get their accounts audited under the I-T Act.