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The online gaming industry and casinos continue to remain on tenterhooks over the lack of convening of the 48th GST Council meeting. This council is in charge of finalising its recommendations on the imposition of GST on online gaming, as well as putting an end to the debate over “games of skill or chance.” It has also been tasked with clarifying the application of GST on multiple-round bets made in casinos.
GoM’s (Group of Ministers) interim report proposes a levy of 28% GST on the total value of the consideration received in online gaming, including the entry fee. It also proposed that once a 28% GST has been charged on the initial purchase of casino chips, no further GST charges will apply, even on new bets made from previous round earnings.
Below we elaborate on the current applicability of GST on online gaming and casinos and analyse the implications of the proposed changes if they come to pass.
To better understand the impact of the proposed changes, let’s first understand the current GST treatment for online gaming and casinos.
Presently, the GST regime differentiates online games based on skills versus chance.
A game of skill is one where the outcome is dependent on the expertise, practice, and experience of the player and not merely on chance. Some examples include rummy and fantasy sports games like Dream 11. This distinction is important as skill games invite a lower tax rate applicability.
Whereas games of chance are treated similarly to betting, gambling, and horse racing. Thus, they are subject to Rule 31A of the CGST Rules, 2018, which charges a higher GST rate.
However, an issue arises as the line between skill, and chance can be thin in some cases, as can be gleaned from the recent case of Gameskraft Technology. The tax authorities clubbed together all its games, including rummy, into games of chance, thus inviting a higher GST tax rate.
Similar to games of chance, a GST rate of 28% is applicable to online lottery and casino earnings.
You can learn more about the applicability of GST on online lottery here.
Currently, the following GST rates are applicable to online gaming and casino earnings:
An online gaming platform keeps money in two ways:
A Game of skill will charge 18% only on the platform/rake fee charged. To illustrate, if 10 rummy players plan on betting Rs.500 and the platform charges 10% as a fee. Then,
|Platform Fee = Rs.100 * 10% * 10|
Platform Fee = Rs.100
GST chargeable = Platform Fee * 18%
GST chargeable = Rs.100 * 18%GST chargeable = Rs.18
However, for games of chance, the entire gross value will be liable to a 28% GST rate. Thus, in the previous example, on treating the game as a game of chance or treating those earnings similar to a casino bet, the tax incidence increases to Rs.28.
|GST chargeable = Rs.100 * 28%|
GST chargeable = Rs.28
The latest interim GoM proposed to do away with the distinction of classifying online games into skill or chance, as it complicated tax calculations. Instead, it made the following recommendations:
To put this into context, if, in the previous example, the gaming platform charges 28% GST, then the tax becomes:
|GST chargeable = Rs.100 * 10 * 28%|
GST chargeable = Rs.280
This means that while the platform has only earned Rs.100 in commission, it will be liable to pay Rs.280 in GST, which makes it unviable.
According to some press reports, if the GoM’s new rate of 28% tax goes into action, then the online skill gaming industry is likely to experience a 50-53% rise in taxation. Globally, the gaming industry pays approximately 10-20% of its earnings as taxes.
Higher GST rates will also lower the playable value received by the platform users. Additionally, online gaming platforms will find their profit margins squeezed further, which can, in turn, result in a massive drop in foreign investment.
This rate hike can also be a massive misstep as it may result in a spate of unlicensed operators who set up their gaming platforms offshore.
As per Section 16(1) of the CGST Act, a registered tax person can avail input tax credit (ITC) on goods and services used in furthering the business. However, Section 17(5) of the CGST Act imposes some restrictions for when ITC cannot be claimed, which are explained in detail here. Furthermore, the 48th GST Council is yet to convene and make a decision about the final taxability of casinos and online gaming companies.
The application of GST to gaming and betting has been challenged in several Indian courts. Below, we encapsulate some such rulings.
In Gurdeep Singh Sachar vs Union of India and Ors, the Bombay High Court ruled that GST is not applicable on the player’s entire deposit, but only on the consideration collected for the supply of goods or services within the platform.
Similarly, in Varun Gumber v. Union Territory of Chandigarh and Ors, the Supreme Court of India (SC) found that Dream 11 was a game of skill, and such games aren’t covered under the Public Gambling Act.
Also, the SC upheld the constitutional validity of levying GST on lottery, betting, and gambling in Skill Lotto Solutions Pvt Ltd. vs Union of India.
The online skill gaming industry in India is booming, with revenues expected to reach Rs. 29,000 crores by FY25. However, the dithering and lack of clarity on applying GST to online gaming and casinos have harmed its prospects. Unfortunately, putting the online gaming industry in the same category as gambling (as proposed) may not be in the best interests of this thriving industry.
Yes. Presently, games of chance are taxed at 28%, and games of skill attract 18% GST. However, the government is considering doing away with the distinction and treating all games as demerit goods, thereby attracting a 28% GST rate.
Yes. Presently, all casino earnings are levied a flat 28% GST.
The GoM has proposed to charge GST only on the initial money spent on entering the casinos and not on future bettings made through winnings from previous rounds.