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P Sree Sudha

Juristic Aspects of E-Commerce - With Specific Reference to Taxation - Bangalore NLSIU Bangalore 2016 - 498p

INDEX
CONTENTS
I Introduction:
JURISTIC ASPECTS OF E-COMMERCE WITH SPECIFIC REFERENCE TO TAXATION;
1 Growth of e-commerce in India;
2 Significance of the Study;
3 Statement of the Problem;
4 Objectives of the Study;
5 Scope of the Study;
6 Scheme of the Research;
7 Methodology;
8 Hypothesis;
9 Review of Literature;
10 Criteria taken for Selection of Case Law;
11 Constitutional Perspectives Relevant for E-commerce;
11.1 Power to Tax According to Indian Constitution;
11.2 Legitimacy of Taxing Power;
11.3 Commerce Clause of U.S.A. Constitution;
11.3.1 Congress Support for Limiting State Action in E-commerce;
12 Limitations of the Study;
II A CONCEPTUAL ANALYSIS OF LEGAL FRAME WORK ON E-CONTRACTS AND E- SIGNATURES PERTAINING TO E-COMMERCE;
1 Essentials of an e-contract;
2 Kinds of e-contracts;
2.1 Shrink-wrap Contracts;
2.2 Click-wrap Contracts;
2.3 Browse-wrap Contracts;
2.4 End User Licensing Agreement (EULA);
2.5 Source Code Escrow Agreements;
2.6 Software Development and Licensing Agreements;
3 International Legal Framework on e-contracts;
3.1 United Nations Framework on e-contracts - an Overview;
3.2 UNCITRAL Model Law on Electronic Commerce;
3.3 UN Convention on the Use of Electronic Communications in International Contracts;
4 The U.S.A. Legal Frame Work on e-contracts;
4.1 Judicial Precedents on Enforceability of Click-wrap Agreements in U.S.A;
4.2 Judicial Precedents on Enforceability of Browse-wrap Agreements in U.S.A;
5 EU Legal Framework on e-contracts;
5.1 EU Electronic Commerce Directive on e-contracts;
5.2 EU Case Laws on e-contracts;
6 Indian Legal Framework on e-contracts:
6.1 Information Technology Act 2000 (amended 2008) one-contracts;
6.2 Jurisdiction;
6.3 Indian Jurisprudence on e-contracts;
7 Validity of Standard Form of Contracts or Adhesion Contracts in ecommerce;
7.1 Interpretational Issues in Standard Form Contracts;
7.2 Enforceability of Adhesion Contracts;
7.3 Indian Law on Standard Form of Contracts;
7.3.1 Indian Contract Act, 1872 on Illegality and Public Policy;
7.4 Standard Forms of Contracts and Exemption Clauses;
8 General Contractual Terms used in e-contracts;
8.1 Incorporation of Express Terms;
8.2 Incorporation of Terms by Reference;
8.3 Incorporation of Implied Terms;
9 Choice of Law Issues Regarding Cross Border Transactions in ecommerce;
10 Legal Framework of E- Signatures or Digital Signatures for ecommerce;
10.1 Handwritten Vs. Digital Signatures;
10.2 Meaning and Scope of Digital and Electronic Signatures;
10.3 The UNCITRAL Model Law on e-signatures
10.4 U.S.A Legal Regime on Electronic Signatures;
10.5 The European Union Legal Regime on Electronic Signatures;
10.6 Indian Legal Regime on Digital Signature or e-signature;
10.6.1 Information Technology Act 2000 {amended 2008) on Digital Signature;
10.6.2 Digital Signature Certificate (DSC) under Information Technology Act;
10.6.3 Types of Digital Signatures Permissible in India;
10.6.4 Admissibility of Digital Signatures & Indian Evidence Act 1872;
10.6.5 Indian Penal Code (IPC) 1860 and Digital Signatures;
III CRITICAL ANALYSIS OF VALUE ADDED TAX (VAT) TAX IMPLICATIONS FOR
E-COMMERCE;
1 Business Transactions Popular in e-commerce;
2 Why E-commerce Challenges the Existing VAT Tax System;
2.1 Main Characteristics of e-commerce Relevant for VAT;
3 VAT System of European Union (EU);
3.1 Basic VAT Rules Applied for e-commerce at EU;
3.2 B2B cross-border e-commerce service transaction (2010 and beyond);
3.3 Place of Supply under the Sixth Directive;
3.4 Mini One-Stop-Shop System of (MOSS) 2015;
3.5 EU Case Laws;
3.6 Summary of the EU VAT rules;
4 Legal Framework of U.S.A on Sales Taxation of E-commerce Transactions;
4.1 The Internet Tax Freedom Act (lTFA);
4.2 The Digital Goods and Services Tax Fairness Act -2011;
4.3 Wireless Tax Fairness Act;
4.4 The Market Fairness Act (MFA) -2015;
4.5 U.S.A Judiciary's Interpretation on Imposition of Sales Tax on ecommerce Transactions;
5 Other Countries Experiences;
5.1 Canada;
5.2 China;
6 Indian Legal Framework on VAT & e-commerce;
6.1 Nature of VAT in India;
6.2 Unsettled Issues of VA T & e-commerce Transactions;
6.3 Indian Judiciary's Interpretation on VAT & e-commerce Transactions;
7 Taxation of Right to Use of Intangible Goods: Overlapping between Service tax and VAT Tax;
7.1 Is online p0l1als are Dealer for VAT purpose!;
7.2 State Governments' Responses on VAT Taxation of e-commerce;
IV CHANGING DYNAMICS OF INCOME TAXATION IN THE CONTEXT OF
E-COMMERCE;
1 The Challenges Posed by E-commerce for Income Taxation;
1.1 Difficulty in Applying Residence and Source Jurisdictions;
1.2 Difficulty of Categorizing and Taxing Digitized Online Goods and Intangible Assets;
1.3 The Difficulty in Taxation of Cross-border Online services in ecommerce;
2 Basic Principles of International Taxation;
2.1 Residence-Based Taxation;
2.2 Source-Based Taxation;
2.3 Source v. Residence Clash and Double Taxation;
3 Channing Dimensions of International Taxation Regime after Industrial Revolution;
3.1 International Legal Regimes on Income Taxation;
4 Evolution of Indian Income Tax System;
4.1 Vedic Period;
4.2 Mauryan Period;
4.3 Period of Kings and the Rulers;
4.4 Mughal Period;
4.5 Period of East India Company:
4.6 British Colonial Period;
4.7 Period of independence;
4.8 Organizational Setup of Income Tax Department;
4.9 The Central Board of Direct Taxes (CBDT);
5 Overview of Income Tax Act 1961 Provisions relevant for ecommerce;
5.1 E-commerce and Source-Based Taxation under Income-tax Act;
5.2 Business Connection (BC) according to Income Tax Act 1961;
6 Purpose of DTAAs in Apportionment of Taxing Rights between Two Countries;
6.1 Double Tax Avoidance Agreements (DTAA) & Source Principle;
6.2 Royalties;
6.3 Fees for Technical Services (FTS);
6.4 Business Profits;
7 Difficulty of Categorizing and Taxing Digital Goods and Intangible Assets in e-commerce;
7.1 Difficulty in Taxation of Cross-border Services in e-commerce;
7.2 Characterization of Income Issues in e-commerce;
7.3 Examples of Payments for Copyright Rights & Copyrighted Articles in e-commerce;
8 Withholding tax Issues Relevant for e-commerce Transactions;
8.1 Withholding Taxes for NRIs and Foreign e-commerce Companies;
8.2 Taxability of Technical, Managerial or Consulting Services Provided bye-commerce Firms to Indian Clients Performed Outside India;
8.3 Withholding Taxes on Software payments - Contentious Issue;
8.4 Withholding Tax on Royalties;
8.5 Relief from Withholding Tax;
9 Effect of e-commerce on Administration and Enforcement;
9.1 Filing of Income-tax Returns;
9.2 Income Tax Recovery;
9.3 Refund of income Tax;
10 Equalizaiton Levy;
10.1 Modus Operandi of Equalizaiton Levy;
V DIFFICULTY IN ESTABLISHMENT OF PERMANENT ESTABLISHMENT (PE) - IN E-COMMERCE;
1 Evolution of PE in Direct Taxation;
2 Difficulty in Identification of PE in E-commerce;
2.1 Kinds of Pes;
2.1.1 Fixed Place PE;
2.1.2 Installation PE;
2.1.3 Service PE;
2.1.3 Agency PE;
2.2 India's Position on the OECD Model Tax Convention;
2.3 OECDs Response towards PE in e-commerce;
2.3.1 The OECD's Proposal on Interpretation of PE;
2.3.2 The OECD Digital Economy Report 2015;
3 Difference between the OECD Model and UN Model Conventions Regarding PE in
e-commerce;
4 Theory of "virtual" Permanent Establishment (PE);
5 Indian Jurisprudence on PE;
6 Attribution of Income to PE;
6.1 Cardinal Principles of Attribution of Profits to PE under DT AA;
6.2 Attribution of Profits to Permanent Establishment (PE) Under the Income Tax Act 1961;
6.3 Attribution of Profits to PE under DT AA;
6.4 Developments at OECD;
6.4.1 Article 7 of the OECD model Convention on Attribution of Profits to PE;
6.5 Approaches for Allocation of Profits;
6.5.1 Relevant Business Activity Approach;
6.5.2 Functionally Separate Entity Approach;
6.5.3 Rationale behind "Dual taxpayer" Approach;
6.5.4 Basics of Authorized OECD Approach;
6.6 Indian Judiciary's Interpretation on the Attribution of profits to PE;
6.7 New Approach by ITAT Delhi Bench;
VI EMERGING AREAS IN TAXATION OF E-COMMERCE (A) AN OVERVIEW OF SERVICE TAX REGIME PERTAINING TO E-COMMERCE;
1 Meaning of Service;
1.2 Meaning of Declared Services;
1.3 Negative List of Services;
1.4 Chargeability of Service Tax under New Approach;
2 Service Tax Implications for Various e-commerce Services;
2.1 Various Kinds of e-commerce Business Models Popular in ecommerce;
2.1.1 Direct Supply of Goods Model;


2.1.1.1 Direct Supply from Seller to Customer;
2.1.1.2 Seller to Online Portals to Customer;
2.1.2 Inventory Model;
2.1.3 Market Place Model;
2.1.4 Hybrid or Facilitator Model;
2.1.5 Rendering of Services Model;
3 Online Information and Database Access or Retrieval Services;
4 Intellectual Property Rights (IPR) Services;
5 Online Advertisements;
6 Affiliate Income of Bloggers and Service Tax;
7 Aggregators and Service Tax;
8 Social Networking Web Sites and Service Tax;
9 Domain Names under Franchise Services;
10 Export and Import of Services;
11 Point of Taxation Rules, 20 II;
12 General Rules for Place of Provision of Services (POPS);
12.1 Determination of Place of Provision;
12.1.2 Determination of Location of Service Provider and Location of Service Receiver;
12.2 Intermediary Services;
12.3 Services Partly Performed in India;
(B) CUSTOMS ISSUES TRANSACTIONS PERSPECTIVE RELEVANT FOR
E-COMMERCE - A DEVELOPING COUNTRIES;
1 Discussions at WTO on E-commerce;
2 Electronic Commerce and GATS;
3 Unsettled Issues on e-commerce before WTO;
4 Regulatory Issues Within WTO Regarding e-commerce;
5 Additional Import Duties and Taxes on e-commerce;
5.1 Calculation of Additional Duties;
6 E-commerce Related Disputes before WTO;
7 World Customs Organization (WCO) Initiatives on e-commerce;
7.1 The Baku Declaration (2001) on e-commerce;
7.2 Kyoto Convention 1974;
7.3 The Revised Kyoto Convention (RKC) - ICT Guidelines 2006;
7.4 Electronic Exchange of Data between Post and Customs;
8 Joint WCO-UPU Virtual Working Group on e-commerce;
9 Indian Legal Frame work on Customs;
10 Steps Vital for' Development of an Integrated, more Viable and Durable Multilateral Trading System' for the Modem e-commerce Age;
(C) GST AND E-COMMERCE - THE ROAD AHEAD!;
1 Problems Associated with the Existing Indirect Tax System of India;
2 Introduction of GST is Imperative for Competitiveness and Growth;
3 Rationale behind Introduction of the Goods and Services Tax in India;
4 Journey of GST in India;
5 Impact of GST on Stakeholders;
5.1 On competitiveness and Growth;
5.2 On Consumers and Demand for Goods;
5.3 On Government Revenue;
5.4 On Investment and Economic Efficiency;
6 Nature of GST in India;
7 Salient Features of Model GST Law 2016;
7.1 Levy and Collection of Central/State Goods and Service Tax;
7.2 Point of Supply;
8 GST at International Scenario;
8.1 The European Union;
8.2 The United States;
8.3 The Canada;
8.4 The Australia;
8.5 The Singapore
9 How GST is Helpful to e-commerce?;
VII EMPIRICAL ANALYSIS OF RESEARCH WORK ON "JURISTIC ASPECTS OF
E-COMMERCE with SPECIFIC REFERENCE TO TAXATION";
1 Significance of Socio Legal Research;
2 Objectives of Social Research;
3 Methodology;
4 Methods Applied for the Present Study;
5· Interview Method;
5.1 Interview Schedules;
5.2 Sample Design;
6 Analysis and Interpretation of Data;
VIII CONCLUSION AND SUGGESTIONS;
1 Ideal Framework for VAT;
1.1 Ideal VAT Framework Suitable for E-commerce;
1.1.1 Origin Based VAT Approach;
1.1.2 Destination Based VAT Approach;
2 Ideal Framework for Income Tax;;
2.1 Refundable Withholding Mechanism;
2.2 Residence-based Taxation;
2.3 India should Rethink its Source Rules;
3 Base Erosion and Profit Shifting Approach (BEPS);
3.1 BEPS Developments at OECD;
3.2 BEPS and Developing Countries;
3.3 Indian Perspective and its Position on BEPS;
3.4 Key findings on BEPS;
4 Formulary Apportionment System;
4.1 Perceived Technical Barriers to Formulary Apportionment System;
5 Suggestions;
BIBLIOGRAPHY.


E-Commerce - India E-Contract & E-Signature- Legal Aspects Taxation - E-Commerce