Development in the taxation of income arising from the transfer of virtual digital assets (VDAs) : Clause 194 (Table: S. No. 4) of Income Tax Bill, 2025 Vs. Section 115BBH of Income Tax Act, 1961

Clause 194 Tax on certain incomes.

Income Tax Bill, 2025

Introduction

Clause 194 of the Income Tax Bill, 2025 represents a significant legislative development in the taxation of specific categories of income, including, notably, income arising from the transfer of virtual digital assets (VDAs). Table: S. No. 4 under this Clause introduces a comprehensive tax regime for VDAs, which is of particular relevance in the rapidly evolving landscape of digital assets, cryptocurrencies, and blockchain-based tokens. This provision is to be examined in the context of the existing Section 115BBH of the Income Tax Act, 1961, which was inserted by the Finance Act, 2022 and operational from 1st April 2023, thereby marking the first legislative attempt to tax VDAs in India. The commentary will first provide a detailed analysis of Clause 194 (Table: S. No. 4), followed by an in-depth comparative analysis with Section 115BBH, highlighting similarities, differences, legislative intent, and practical implications.

Objective and Purpose

The legislative intent behind Clause 194 (Table: S. No. 4) is to create a clear, unambiguous, and robust tax framework for income arising from the transfer of virtual digital assets. The provision aims to:

• Ensure tax certainty and compliance in the rapidly expanding digital asset sector.
• Prevent tax avoidance and ensure that gains from VDAs are brought within the tax net at a flat and significant rate.
• Disallow deductions, set-offs, and carry-forward of losses to prevent the erosion of the tax base through artificial or excessive claims.
• Align the taxation of VDAs with other speculative or windfall income, such as winnings from lotteries and gambling, which are taxed at a flat rate without deductions.

The historical context arises from the proliferation of cryptocurrencies and digital assets, which, prior to 2022, existed in a legal grey area in India. With increased adoption and trading activity, the need for a dedicated tax regime became evident, both to regulate the sector and to generate revenue.

Detailed Analysis of Clause 194 (Table: S. No. 4)

1. Structure and Scope Clause 194(1) sets out a special regime for certain incomes, overriding other provisions of the Act. Table: S. No. 4 specifically addresses:

Any person; Any income from the transfer of any virtual digital asset; 30%; (a) No deduction in respect of any expenditure (other than cost of acquisition, if any) or allowance or set off of any loss shall be allowed to the assessee under any provision of this Act in computing the income referred to in column C; and (b) no set off of loss from transfer of the virtual digital asset computed herein shall be allowed against income computed under any provision of this Act to the assessee and such loss shall not be allowed to be carried forward to succeeding tax years.

2. Key Provisions

• Applicability: The clause applies to "any person" earning income from the transfer of any virtual digital asset, thereby encompassing individuals, companies, firms, and other entities.
• Flat Tax Rate: The income from the transfer of VDAs is taxed at a flat rate of 30%. This is irrespective of the total income or the slab rate applicable to the assessee.
• Computation Mechanism: The tax payable is the aggregate of:
  • Tax on VDA income at 30%.
  • Tax on the rest of the income at applicable rates, as if VDA income was excluded.
• Denial of Deductions and Set-off:
  • No deduction is allowed for any expenditure or allowance, except for the cost of acquisition.
  • No set-off of loss from VDA transfer against any other income.
  • Such loss cannot be carried forward to subsequent tax years.
• Definition of "Transfer": For the purposes of this provision, "transfer" as defined in section 2(109) is applicable, regardless of whether the VDA is a capital asset.

3. Definitions and Interpretative Provisions Clause 194(2)(n) specifically states that the term "transfer" as defined in section 2(109) shall apply to any virtual digital asset, whether capital asset or not. This broadens the scope, ensuring that all forms of alienation or disposal of VDAs are covered.

4. Legislative Technique The provision is structured in a "Table" format, allowing for a modular and flexible approach, whereby the taxation regime for various special incomes can be updated or amended by changing the Table rather than the entire section.

5. Notes and Conditions The notes under column E for S. No. 4 clarify that:

• Only cost of acquisition is allowed as a deduction; all other expenses are disallowed.
• No set-off or carry-forward of losses from VDA transfers is permitted.

Practical Implications

1. Impact on Taxpayers

• Individuals and Investors: Gains from the sale, exchange, or transfer of VDAs are taxed at 30%, regardless of the holding period or nature of the asset. This discourages tax arbitrage by treating all VDA gains uniformly.
• Businesses and Startups: Entities dealing in VDAs, such as exchanges, trading platforms, or companies accepting VDAs as payment, must account for the flat 30% tax on gains, with no deduction for operational expenses.
• Miners and Developers: The cost of acquisition may be interpreted to include the cost of mining or acquisition, but other related expenses are disallowed, potentially increasing the effective tax burden.

2. Compliance Requirements

• Taxpayers must segregate VDA income from other income for tax computation.
• Losses from VDA transfers are ring-fenced and cannot be used to offset other income or carried forward, requiring careful record-keeping and reporting.
• Assessment and audit procedures must account for the special regime and ensure correct computation.

3. Regulatory and Enforcement Implications

• Tax authorities must develop mechanisms to track and verify VDA transactions, which are often pseudonymous and cross-border.
• The provision may incentivize voluntary reporting but could also drive transactions underground if enforcement is weak.

Comparative Analysis: Clause 194 (Table: S. No. 4) vs. Section 115BBH

1. Structural Comparison

Aspect	Clause 194 (Table: S. No. 4), Income Tax Bill, 2025	Section 115BBH of the Income Tax Act, 1961
Applicability	Any person; income from transfer of any VDA	Any assessee; income from transfer of any VDA
Tax Rate	30% on VDA income	30% on VDA income
Computation Mechanism	Tax on VDA income at 30% + tax on rest of income as if VDA income excluded	Tax on VDA income at 30% + tax on rest of income as if VDA income excluded
Deductions Allowed	Only cost of acquisition; all other expenses disallowed	Only cost of acquisition; all other expenses disallowed
Set-off and Carry-forward of Losses	Not allowed; losses cannot be set off or carried forward	Not allowed; losses cannot be set off or carried forward
Definition of "Transfer"	section 2(109), whether capital asset or not	section 2(47), whether capital asset or not

2. Provisions: Point-by-Point Analysis

• Tax Rate: Both provisions prescribe a flat 30% tax rate on income from the transfer of VDAs, ensuring parity and removing ambiguity about the applicable rate.
• Scope of "Transfer":
  • Section 115BBH: Refers to "transfer" as defined in section 2(47) of the 1961 Act, which covers sale, exchange, relinquishment, extinguishment of rights, compulsory acquisition, conversion of asset, etc.
  • Clause 194: Refers to "transfer" as defined in section 2(109) of the Bill. The content of section 2(109) is not provided, but it is likely analogous to section 2(47) of the 1961 Act. The explicit inclusion of "whether capital asset or not" in both provisions ensures that even VDAs held as stock-in-trade are covered.
• Denial of Deductions:
  • Both provisions categorically disallow any deduction for expenditure or allowance other than the cost of acquisition, thereby preventing the reduction of taxable VDA income through claims of incidental or related expenses.
• Set-off and Carry-forward of Losses:
  • Both provisions ring-fence losses from VDA transfers, disallowing set-off against other income and carry-forward to subsequent years. This is a departure from the general rule for capital losses and business losses, which are ordinarily eligible for set-off and carry-forward.
• Computation of Total Income:
  • Both provisions require that total income be computed by first taxing VDA income at 30% and then taxing the remaining income as if VDA income was excluded, ensuring that VDA income does not distort the slab rate or progressive taxation applicable to other income.
• Wording and Legislative Technique:
  • Section 115BBH is a standalone section, while Clause 194 is a table-based provision covering multiple types of income, allowing for better modularity and legislative clarity.
  • Clause 194 includes more detailed definitions and cross-references in sub-section (2), which may enhance interpretative certainty.

3. Ambiguities and Potential Issues

• Definition of "Cost of Acquisition": Both provisions allow deduction only for the cost of acquisition. However, the treatment of "cost of acquisition" for mined or gifted VDAs is not explicitly clarified, leading to interpretative challenges.
• Taxation of Airdrops, Forks, and Derived Assets: The provisions do not explicitly address the tax treatment of airdrops, hard forks, or staking rewards, which are common in the VDA ecosystem.
• Valuation and Reporting: The determination of fair market value, especially in the absence of a regulated exchange or in the case of peer-to-peer transfers, poses practical challenges.
• Overlap with Other Provisions: The exclusion of VDAs from the general capital gains regime may create conflicts or confusion in cases where VDAs are used as consideration for goods or services.

Practical Implications: Stakeholder Analysis

1. For Taxpayers

• Increased Tax Burden: The flat 30% rate is higher than the long-term capital gains rate for listed securities and may discourage investment or trading in VDAs.
• No Relief for Losses: The inability to set off or carry forward losses may adversely affect active traders and investors, especially in volatile markets.
• Record-Keeping: Accurate and detailed records of acquisition and transfer are essential to comply with the law and to substantiate the cost of acquisition.

2. For Businesses and Exchanges

• Compliance and Reporting: Exchanges may be required to report transactions and deduct tax at source (TDS) under separate provisions, increasing compliance costs.
• Operational Impact: The inability to claim expenses may affect the profitability of businesses engaged in VDA trading or services.

3. For Tax Authorities

• Enforcement Challenges: The pseudonymous nature of many VDA transactions, use of foreign exchanges, and decentralized platforms complicate enforcement.
• Revenue Assurance: The flat rate and denial of deductions maximize tax yield and reduce the scope for aggressive tax planning.

Comparative Analysis with Other Jurisdictions

Globally, the taxation of VDAs varies:

• United States: Treats cryptocurrencies as property; gains are taxed as capital gains, with short-term and long-term rates, and losses are generally set-off against gains.
• United Kingdom: Taxed as capital gains for individuals, with set-off and carry-forward of losses permitted.
• Singapore: No capital gains tax; business income from trading is taxed as income.

India's approach, as reflected in both Section 115BBH and Clause 194, is more stringent, with a flat rate and denial of loss relief, aligning VDAs with speculative or windfall income.

Policy Rationale and Critique

The policy rationale is to:

• Prevent tax evasion and avoidance in a sector prone to volatility and speculation.
• Ensure administrative simplicity by denying deductions and set-offs.
• Maximize revenue from a new and growing asset class.

However, the regime may be critiqued for:

• Being overly harsh on genuine investors and traders by denying loss relief.
• Potentially discouraging innovation and growth in the digital asset sector.
• Risking non-compliance or migration of activity to unregulated or foreign platforms.

Conclusion

Clause 194 (Table: S. No. 4), Income Tax Bill, 2025, closely mirrors the existing Section 115BBH of the Income Tax Act, 1961, in its approach to the taxation of virtual digital assets. Both provisions impose a flat 30% tax rate, allow only the cost of acquisition as a deduction, and prohibit set-off and carry-forward of losses. The legislative design aims for clarity, simplicity, and revenue assurance, but may raise concerns about fairness and the impact on the digital asset ecosystem. The modular structure of Clause 194 promises greater legislative flexibility, while the detailed definitions may assist in interpretation. As the digital asset landscape evolves, further clarification and possible reform may be warranted to address emerging issues and stakeholder concerns.

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Full Text:

Clause 194 Tax on certain incomes.

 

Dated: 5-5-2025