What You Need to Know About Crypto, NFT Laws in India

VDAs come under the definition of 'property' under section 56 of the Income-tax Act which relates to 'Income from other sources'.

By Rohas Nagpal | Updated: 2 July 2022 21:27 IST

What You Need to Know About Crypto, NFT Laws in India

Photo Credit: Pixabay/ Darshak Pandya

The government of India has issued guidelines explaining when TDS applies and when it does not.

Over the last few months, there have been many discussions (and a lot of confusion) around crypto tax in India. In this post, I will briefly explain all the laws that apply to cryptocurrencies in India.

Before we begin, let's quickly understand what Non-Fungible Tokens (NFTs) are.

NFTs are digital proof-of-ownership of an underlying asset such as:

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digital art collectibles domain names virtual game items physical assets Cryptos can broadly be divided into six types:

Non-fiat-backed currencies e.g. Bitcoin (BTC), Monero (XMR) Fiat-backed currencies e.g. Tether (USDT) Utility coins e.g. Ether (ETH), Filecoin (FIL) Governance tokens e.g. Uniswap (UNI) NFTs not backed by tangible assets NFTs backed by tangible assets Virtual Digital Assets

Categories one to five are Virtual Digital Assets (VDAs) under section 2(47A) of the Income-tax Act.

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Some laws that apply to VDAs are:

VDAs come under the definition of 'property' under section 56 of the Income-tax Act which relates to 'Income from other sources'.

Many transactions in VDAs incur one percent tax deducted at source (TDS) under section 194S of the Income-tax Act titled 'Payment on transfer of virtual digital asset'.

The government has issued guidelines explaining when TDS applies and when it does not. These can be downloaded from here.

The government has also issued an order in relation to TDS for transactions other than those taking place on or through an Exchange. This can be downloaded from here.

The Government has also issued a Circular providing some exemptions for the application of section 206AB to TDS on VDA. Section 206AB is titled "Special provision for deduction of tax at source for non-filers of income-tax return" and the Circular can be downloaded from here.

Income from VDAs is taxed at 30 percent under section 115BBH of the Income-tax Act titled 'Tax on income from virtual digital assets'.

What Do Not Qualify as VDAs?

The government has issued a notification specifying the following are not considered VDAs:

Gift cards or vouchers Mileage points Reward points or loyalty card Subscription to websites or platforms or application NFTs Backed by Tangible Assets

As per the government of India, an NFT will not be considered a VDA if it satisfies two conditions:

The transfer of the NFT results in the transfer of ownership of an underlying tangible asset.

The transfer of ownership of such underlying tangible assets is legally enforceable. In March, Ritesh Pandey, a parliamentarian from the Bahujan Samaj Party (BSP) had expressed concerns in the Lok Sabha. At the time, Pandey said this one percent TDS will promote 'red tapism' while killing off this up-and-coming digital asset class.

The ‘red tapism' idiom refers to those formal rules that are claimed to be excessive and rigid.

Pandey's comments had come against the backdrop of an outcry from India's crypto community, which is requesting the government to reconsider the tax regime it's pushing the crypto industry into.

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