This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of whether Bitcoin is legal in India or not. Alongside this, other relevant aspects that an individual should acknowledge concerning Bitcoin have been discussed in this article.
This article has been published by Shoronya Banerjee.
Table of Contents
Introduction
Cryptocurrency is a type of electronic money. It is thought to be more secure than actual money. Cryptocurrency transactions are secured using a technique known as cryptography. To put it another way, cryptography is a process of transforming understandable data into complex codes that are difficult to decipher. Digital currencies, alternative currencies, and virtual currencies are all subsets of cryptocurrencies. Bitcoin is one of the first cryptocurrencies, and it is a part of the global peer-to-peer payment system. In the year 2009, Bitcoin became the first cryptocurrency. As a result, the number of cryptocurrencies that have been generated has exploded, including Litecoin, Ethereum, Zcash, Dash, Ripple, and others. Given the government’s attempts to move towards a cashless economy, Bitcoins have slowly begun to acquire acceptance in India. However, it is important to note that Bitcoins are not yet centralized or regulated by any one agency, such as the Reserve Bank of India (RBI), which manages actual currency in India. In fact, peer-to-peer Bitcoin transactions are facilitated by blockchain technology, which functions as a public record for all transactions. The Finance Minister of India, Nirmala Sitharaman said in her presentation of the Union Budget 2022 that the government will implement a digital rupee in the fiscal year 2022-23 and levy a 30% tax on virtual assets thereby enabling hope on the regulation of virtual currencies in India. This article tries to clear the possible doubts surrounding Bitcoin by specifically focusing on its legality with respect to India.
What is Bitcoin
As of 2021, Bitcoin is the most frequently used digital money or e-currency. As it has a real-world equivalent, it’s termed convertible virtual money. A convertible virtual currency’s sale or exchange, as well as its usage to pay for goods or services, has tax consequences.
In 2008, a technical white paper was published that detailed the creation of Bitcoin, a new “peer to peer electronic payment system.” Traditional trust-based payment methods with the possibility of reversals, according to the research, result in high transaction costs and increase the amount of intermediation required by a “trusted third party” (in this case, a bank). As a result of the high transaction costs, small-value transactions cannot be completed digitally. Bitcoin and other public blockchains have no central authority and are seen as facilitators of total disruptive disintermediation. Permissioned blockchains are hosted on private computer networks with limited access and editing privileges, implying that central authorities retain administrative control.
Instead of introducing trust to transactions through ‘trust mechanisms’ or ‘trusted third parties,’ the article claimed that trust may be established cryptographically. Through calculations, this would secure a common order of transactions without the requirement for parties to know each other. Participants would be able to perform transactions without the requirement for a trusted third party as an intermediary, minimizing inefficiencies created by the more traditional approach. While the technology’s shape and form have changed since its inception, many characteristics have remained consistent, as has blockchain’s objective of facilitating more efficient trustworthy electronic transactions. The Swiss city of Zug was the first in the world to accept Bitcoin payments for tax purposes. They built a Blockchain-based voting mechanism and established the Blockchain Task Force to assist businesses in deploying the Blockchain architecture.
Is it legal in India to buy Bitcoin
Cryptocurrency is a sort of virtual currency that is decentralized and encrypted using cryptographic techniques. Decentralization indicates that there is no central authority in charge of keeping track of transactions. Instead, transaction data is recorded and shared by independent computers across multiple distributor networks. Distributed Ledger Technology helps facilitate the functioning of these currencies.
In India, there is no central body that has sanctioned or regulated Bitcoin as a payment method. Furthermore, there are no established laws, regulations, or standards for addressing conflicts that may emerge while dealing with Bitcoins. As a result, Bitcoin transactions have their own set of dangers. However, given this context, it is impossible to conclude that Bitcoins are unlawful, as there has been no prohibition on Bitcoins in India so far. In a judgment issued on February 25, 2019, the Supreme Court of India while deciding on the case of Internet and Mobile Association of India v. Reserve Bank of India (2018), ordered the government to develop cryptocurrency regulating laws. The case was rescheduled for hearing in the second week of July 2019 after being adjourned at the hearing on March 29, 2019.
Purchasing Bitcoin in India : an insight
Mining is an activity in which a person utilizes his/her computer skills to solve computationally challenging challenges. The act of solving such problems, which are fundamental to blockchain technology, aids in its upkeep. The miner is rewarded with fresh Bitcoins as a result of this, which is nothing more than Bitcoin creation or mining.
A Bitcoin miner is not for everyone. As a result, one might consider purchasing Bitcoins via Bitcoin exchanges and storing them in a digital form in an online Bitcoin wallet. Unicorn, Bitxoxo, Zebpay, Coinbase, and more Bitcoin exchanges are now available in India. These Bitcoins would be acquired in exchange for actual money. It’s worth noting that the current value of 1 Bitcoin is around INR 31,99,620 (It is to be noted that the valuation of Bitcoins keeps on changing as per the prevalent market situations). Though it is not yet a widespread occurrence in India, there are a few astute businessmen that take Bitcoins (rather than actual money) for the sale of goods or services.
Crypto as legal tender in India
In an interview with Press Trust of India (PTI), Finance Secretary TV Somanathan stated that, just as gold and diamonds are not legal cash despite their value, private cryptocurrencies would be walking in the same path. He further stated that “cryptocurrencies will never be accepted as legal currency. It is a legal tender, which means it can be used to settle debts. In India, only the Reserve Bank’s ‘Digital Rupee’ would be considered as legal money”. Except for El Salvador, which proclaimed Bitcoin legal cash in September of last year (2021), no other country has made crypto a legal tender. India is drafting laws to govern cryptocurrencies, but no draft has been made available to the public. Meanwhile, the Digital Rupee, a central bank-backed digital currency, will begin to circulate in the coming fiscal year (2022-2023), ushering in more affordable and effective currency management.
Indian laws governing Bitcoins
Currently, India does not own any specialized legislation for governing cryptocurrencies or virtual currencies. The Cryptocurrency and Regulation of Official Digital Currency Bill, 2021 is a proposed bill by the government towards cryptocurrencies, although the government’s stance on the same remains unclear. The same is also not available to the general public. If passed, the bill will be the first step towards the regulation of blockchain technology in the developing land of India. Section 2(47 A) of the Finance Bill, 2022 provides the definition of ‘virtual digital asset’ as any information or code or number or token (not being Indian currency or foreign currency), generated through cryptographic means or otherwise. The definition is exhaustive enough to include inherent powers of the Central Government to exclude any digital asset from the definition of the virtual digital asset provided the conditions specified in the provision are abided by. A timeline of events that have taken place with respect to the regulation of cryptos in India has been provided hereunder.
The period from 2013 till 2017
The existence of the first cryptocurrencies was recognized by the Indian laws came by means of circulars which were issued by the Reserve Bank of India from 2013 till 2017. These circulars were majorly those of caution. The warning circulars were aimed at vigilantly alerting users, holders, and traders of cryptocurrencies that included Bitcoin about the various risks ranging from the legal, operation, financial to that of customer protection and security-related issues, that the crypto associated individuals were exposing themselves to.
Union Budget 2018-2019
The former Finance Minister of India, Arun Jaitley had clearly specified in the Union Budget 2018-2019 speech that the distributed ledger system, also known as blockchain technology, allows any sequence of data or transactions to be organized without the use of middlemen. The government does not consider cryptocurrencies to be legal cash or coins and will take all necessary steps to prevent them from being used to finance illegal activities or as part of the payment system. The speech also included that the government will investigate the usage of blockchain technology in advance of the digital economy’s arrival.
The Reserve Bank of India on 5th April 2018 had issued a circular (Ring-fencing circular) titled, ‘Statement on Development and Regulatory Policies’ directing regulated entities (for example banks, non-banking financial companies, etc) to put a stop to dealings of virtual currencies. The circular stated that although technological advancements, especially those underpinning virtual currencies, have the potential to improve the financial system’s efficiency and inclusivity, these currencies, sometimes known as cryptocurrencies or crypto assets, raise issues about consumer protection, market integrity, and money laundering. The Reserve Bank has regularly warned users, holders, and dealers of virtual currencies, including Bitcoins, of the dangers of doing business with them. Because of the dangers, it has been determined that entities regulated by RBI would not engage with or offer services to any individual or corporate entity dealing with or settling VCs, with an immediate effect. Regulated entities that currently supply such services must terminate the agreement within a certain amount of time. This circular was challenged before the Supreme Court of India wherein the Court delivered its judgment on 4th March 2020, setting aside the aforementioned circular of RBI.
The Cryptocurrency judgment
Virtual currency exchanges have been effectively banned since 2018, but the Supreme Court recently gave them a boost in the case of Internet and Mobile Association vs. RBI. The Reserve Bank of India (RBI) prohibited organizations regulated by it from trading in or assisting transactions in virtual currencies in a circular dated April 6, 2018. The RBI attempted to ring-fence those enterprises operating in virtual currencies by cutting linkages between virtual currency exchanges and the traditional economy, without outright outlawing virtual currencies. The RBI’s competence to supervise India’s monetary and credit system included the regulation of virtual currencies, according to the Supreme Court. It did, however, rule that a complete prohibition on virtual currency exchanges was excessive and hence not a “reasonable limitation” under Article 19(2) of the Indian Constitution. Surprisingly, the Supreme Court found that the RBI lacked sufficient empirical evidence to show that virtual currencies had a negative impact on the traditional economy.
The petitioners’ main claim was that the RBI lacked the authority to control cryptocurrencies since they were neither ‘currency’ nor a ‘payment system,’ but rather ‘tradable commodities.’ It was further argued that trading in cryptocurrencies remained a lawful commercial activity in the absence of a legislative ban, and the challenged circular imposed an arbitrary and unconstitutional limitation on it. Furthermore, a complete ban on cryptocurrency trading was unreasonable because it violated the proportionality principle.
The RBI responded by claiming that cryptocurrency’s anonymity made it vulnerable to money laundering and terrorism financing. They further argued that widespread use of cryptocurrency could fundamentally undermine India’s credit system and monetary stability which was required to be controlled by the RBI has broad authority over the country’s economic policy.
Observations by the Supreme Court of India
- After determining that the RBI was a specialized statutory body that acted consistently and in good faith, the Supreme Court considered whether the ban on virtual currency trading was a “reasonable restriction” on a fundamental right guaranteed under Article 19 (1)(g). The proportionality test was used to determine reasonableness. The Apex Court concluded that the RBI had behaved within its authority, consistently, and with due diligence. Furthermore, the RBI’s demand for empirical data to establish harm to the conventional economy did not prevent it from taking pre-emptive actions if it saw proper.
- The Court had also observed that though the RBI was found to be within its authority to publish the circular, the absence of proof of the “proportional damage” incurred by RBI regulated enterprises in dealing with cryptocurrency businesses led to the circular being struck down. Despite the RBI finding no problems with the running of these exchanges, the Supreme Court concluded that the circular isolated the banking sector from cryptocurrency exchanges. Before publishing the circular, the RBI did not look into the possibility of less invasive alternatives, such as regulating Bitcoin trade and cryptocurrency exchanges.
- The Supreme Court stated that cryptocurrencies can be accepted as a form of lawful payment for goods and services and that payment systems can be controlled by the RBI.
Inter-Ministerial Committee Report, 2019 on virtual currencies
In November 2017, a high-level Inter-Ministerial Committee was formed to evaluate the challenges surrounding virtual currencies and make recommendations for action. The Committee submitted its findings on February 28, 2019, and on July 22, 2019, the report was made public. The Committee’s scope includes looking at the policy and legal framework for virtual currency regulation. Key observations by the committee have been provided hereunder:
- Virtual currency and its definition: A digitally transferable type of value, virtual money can be used as a means of trade, a store of value, or a unit of account. It does not have legal tender status. The Central Government guarantees legal tender, and all parties are legally obligated to accept it as a form of payment.
- Issues related to virtual currencies: Due to a number of concerns, the Committee concluded that cryptocurrencies cannot replace traditional currencies. The major concerns have been provided hereunder:
- Cryptocurrency prices fluctuate with the market. In less than a year, the value of Bitcoin cryptocurrency fell from about USD 20,000 in December 2017 to USD 3,800 in November 2018.
- Cryptocurrencies are decentralized, making regulation difficult.
- The design of cryptocurrencies contains various flaws that expose users to phishing cyber-attacks and ponzi scams. Furthermore, transactions are irreversible, which means that they cannot be reversed.
- Cryptocurrencies necessitate a large amount of storage and processing power, which can have negative consequences for a country’s energy resources.
- As cryptocurrencies are more anonymous, they are more prone to money laundering and terrorist financing.
3. Regulatory framework for virtual currencies: The Committee noted that different nations have varied regulatory frameworks in place when it comes to cryptocurrencies. Cryptocurrencies are accepted as a form of payment in countries such as Japan, Switzerland, and Thailand. They can be used as a medium of exchange (barter exchange) in Russia, but not as a means of payment. China, on the other hand, has outright banned virtual currency. No government has approved the use of virtual currencies as legal cash, according to the Committee. The Committee suggested that all private cryptocurrencies be prohibited in India, with the exception of those issued by the government, and that any conduct using cryptocurrencies be criminalized through legislation. It was also suggested that the government create a Standing Committee to keep track of global and local technology changes in the industry and address problems pertaining to virtual currencies as needed.
4. Official digital currency: The Committee noted that an official digital currency might offer a number of benefits over current payment systems. These include the accessibility of all transaction data, a less expensive alternative for cross-border payments, and distribution convenience and security. There are various dangers and concerns linked with its execution, according to the Committee. To issue digital money, significant infrastructure investment would be necessary. Validating transactions in a dispersed network would consume a lot of electricity and need a lot of processing power. Furthermore, there may be infrastructure issues due to power outages and internet access. The Committee advised that when it comes to the creation of an official digital currency in India, an open mind is required. It was suggested that, if necessary, the Ministry of Finance organize a committee including members from the RBI and the Ministry of Electronics and Information Technology (MEITY) to evaluate and design an acceptable digital currency model in India.
5. The Distributed Ledger Technology (DLT) and its application: While cryptocurrencies do not offer any advantages as a currency, the underlying technology (DLT) offers various potential uses, according to the Committee. As DLT makes it simpler to spot duplicate transactions, it may be used for fraud detection, processing KYC requirements, and insurance claim management. It can also be useful for reducing mistakes and frauds inland markets if it is utilized to keep track of land records. The Committee suggested that the Department of Economic Affairs identify DLT’s applications and take steps to make them easier to use. Similarly, authorities in the financial industry should assess the technology’s value in their particular domains.
Everything that 2020 had in store for cryptocurrencies
In 2020, the NITI Ayog published a strategy document recognizing many crucial areas blockchain technology can significantly benefit the country. The 59-page policy document, titled Blockchain: The India Strategy — Towards Enabling Ease of Business, Ease of Living, and Ease of Governance, is the first of two parts to be published by NITI Aayog. The first discussion paper addresses the fundamentals of distributed technology, as well as its potential framework for India, implementation obstacles, lessons learned from NITI Aayog’s own proofs-of-concept, application cases, and recommendations for India’s national blockchain strategy.
2021 and the road ahead for virtual currencies in India
The Government of India’s Ministry of Electronics and Information Technology (MeitY) had released a ‘National Strategy on Blockchain,’ (Draft Strategy) in January 2021, which is a step toward allowing trusted digital platforms and developing a blockchain framework for the creation of blockchain-based applications. The document explains Blockchain technology in simple terms, provides a worldwide context for its adoption, highlights national initiatives, and forecasts potential developmental trajectories. A survey on the use of this technology in various nations, as well as estimates and forecasts for the Global Blockchain Government Market, was provided. The document also discusses SWOT analysis, upcoming difficulties, technological and legal problems, and methods for developing the National Blockchain Framework and coordinating the strategy’s execution. The document provides a general overview of the Indian government’s blockchain intentions, but it does not provide precise implementation targets or deadlines. It is, however, intended as a guide for the government and industry stakeholders, as well as a boost for the Indian blockchain community at a time when crypto is facing regulatory scrutiny. It has identified a number of legal and regulatory barriers to blockchain implementation, including privacy concerns, the RBI’s skepticism of cryptocurrencies, and data localization requirements.
On 25th January 2021, the Reserve Bank of India a booklet titled “Payment and Settlement System in India, Journey in the Second Decade of Millennium 2010-2020” which defined Central Bank Digital Currencies (CBDC) as a digital form of legal tender and a central bank obligation denominated in a sovereign currency that appears on the central bank’s balance sheet. It takes the form of electronic currency that can be converted or traded in the same way that cash and traditional central bank deposits can. Payments are rapidly changing due to technological advancements. As a result, central banks all around the globe are examining whether they can use technology to create fiat money in digital form.
CBDC is a type of currency issued by a central bank that differs from paper currency (or polymer), according to the RBI. It is a sovereign currency in electronic form, and it will appear on a central bank’s balance sheet as a liability (currency in circulation). CBDCs should be able to be exchanged for cash.
Further, the Ministry of Corporate Affairs Notification on 24th March 2021 that amended Schedule III of the Companies Act, 2013 incorporated that Indian companies are required to disclose the following details in their balance sheet:
- All profits and loss on transactions that involved cryptocurrency;
- Amount of currency held as at the reporting date; and
- Deposits or advances received from any person for trading or investing purposes in cryptocurrency.
A Clarificatory Circular dated 31st May 2021 was issued by the Reserve Bank of India owing to the fact that many banks were quoting the Ring-fencing circular which was earlier scrapped by the Apex Court. The circular had however clarified that banks and other entities may, however, continue to conduct customer due diligence in accordance with regulations governing standards for Know Your Customer (KYC), Anti-Money Laundering (AML), Combating Terrorist Financing (CFT), and obligations of regulated entities under the Prevention of Money Laundering Act (PMLA), 2002, as well as ensuring compliance with relevant provisions under the Foreign Exchange Management Act, 1999 (FEMA) for overseas remittances.
Taxability of Bitcoin in India
In the fiscal year 2022-23, the government plans to create a Digital Rupee, or Central Bank Digital Currency (CBDC). In addition, the Budget suggested a 30% tax on virtual assets (all private cryptocurrencies and virtual digital assets except digital rupee), thereby legalizing the trade of private cryptocurrencies and non-fungible tokens. This is in accordance with the Centre’s aims to create a fiat digital currency while prohibiting private virtual currencies from being used as legal money. The magnitude and frequency of these transactions have made it imperative to provide for a specific tax regime. From April 1, 2022, the government would charge a 30% tax on any gains generated from private digital assets. The provisions relating to 1% TDS will take effect on July 1, 2022, and profits will be taxed on April 1 of that year. There will be no deductions for any expenditures or allowances while calculating such income, save for the cost of purchase.
30% crypto tax and its implications in India
Indians have had different reactions to the 30% tax on Bitcoin income. Some argue that the government’s 30% tax rate on cryptocurrencies means it’s on par with gambling and speculation. Within hours of launching a petition to repeal the 30%, it had surpassed its initial goal of 50,000 signatures. Some people are relieved that a framework for taxing cryptocurrencies has been established. However, for most people, a 30% tax was the lesser of two evils, the other being an outright prohibition. In India, dealing in cryptocurrency is lawful as long as the government does not make it illegal. By definition, tax law cannot legitimize transactions or commodities. Tax rules apply even if there is no regulatory clarification.
Taxing crypto and its legal status
On 11th February, 2022, the Finance Minister of India, Nirmala Sitharaman clarified that by taxing cryptocurrency, the Indian government had exercised its sovereign rights to tax profits, and the question surrounding banning or not banning cryptos in India would be taken only after inputs from consultations are final. While addressing the Budget debate in Rajya Sabha on the decision to levy a 30% tax on gains from virtual assets, the Finance Minister stated that she is currently not doing anything to legalize or ban cryptocurrencies at this stage. Therefore, it is necessary to note that taxing digital assets does not signify that the same is legal in India presently.
Cryptocurrency scenario in foreign and domestic lands : a comparison
It’s fantastic to see that the benefits of Bitcoin have been emphasized in the Ministry of Electronics and Information Technology’s Draft National Strategy on Blockchain, 2021. From a monetary standpoint, cryptocurrency has the potential to be a significant and creative instrument for the economic sector. There are a few companies in India that take Bitcoin, and study is underway on the transparency, commercial business module, and individuals that deal with Bitcoin. Cryptocurrency legislation has the potential to put Indians and India as a country on a path to inventive prosperity. In light of the same, it is essential for us to discuss the status of cryptocurrency in developed nations like China, the United States of America, and the United Kingdom so as to compare the same with India.
Status of cryptocurrency in China
A lot of the world’s largest Bitcoin miners are located in China. China outlawed the purchase and sale of Bitcoins on Chinese exchanges in 2017. Many Chinese residents have switched to using foreign exchanges to exchange cryptocurrencies. The People’s Bank of China (PBC) is already circulating reports that China may also prohibit all access to domestic and international cryptocurrency exchanges and ICO websites. It’s unclear how much of an impact comparable Chinese cryptocurrency prohibitions will have, nonetheless, they will almost certainly add to the market’s gloom.
In terms of cryptocurrencies, the People’s Republic of China appears to be the most rigorous cryptocurrency regulation among the major economies. This is an odd fact, considering that Chinese Bitcoin miners accounted for more than half of all worldwide miners in 2017 and that cryptocurrency use in China grew at a faster rate than in any other country. Despite China’s tough stance on non-public cryptocurrency trading, the PBC has been researching the possibility of launching its own state-run cryptocurrency.
The United States of America and their take on cryptocurrency
In recent years, virtual currencies such as Bitcoin have gained popularity. Some employees are paid in Bitcoin, and many merchants accept e-currency as payment. Others keep Bitcoin as a capital asset. The Internal Revenue Service (IRS) recently clarified how virtual currency transactions are taxed.
Bitcoin used to pay for goods and services taxed as income
If you pay employees using Bitcoin, you must file W-2 forms with the IRS to disclose their profits.
1. You must convert the value of Bitcoin to US dollars on the day each payment is made and keep meticulous records.
2. Wages received in virtual currency are subject to the same withholding as wages paid in dollars.
Even if paid in Bitcoin, employees must record their overall W-2 compensation in dollars. Self-employed people who receive Bitcoin as a form of payment must convert the virtual currency to dollars on the day they receive it and disclose the results on their tax returns.
Bitcoin held as capital assets are taxed as property
When you own Bitcoin, it’s considered a capital asset, and you must handle it as such for tax reasons. The general tax principles that apply to real estate transactions will apply. Any gain or loss from the sale or exchange of the asset is taxed as a capital gain or loss, much like stocks or bonds. On exchanges, investors make typical gains or losses.
Bitcoin miners must report receipt of the virtual currency as income
Some people “mine” Bitcoin by validating Bitcoin transactions and maintaining the public Bitcoin transaction ledger using computer resources. According to the IRS, if a taxpayer successfully “mines” Bitcoins and earns money from it, whether in Bitcoin or another form, they must include it in their gross income after assessing the fair market dollar value of the virtual currency on the day it is received. If a Bitcoin miner is self-employed, the self-employment tax applies to gross earnings minus permitted tax deductions.
Status of Bitcoin in the United Kingdom
- In the United Kingdom, there are no rigorous Bitcoin restrictions. Although Bitcoin does not have legal standing, it is typically recognized as foreign money for most reasons, including Value-Added Tax (VAT) and Goods and Service Tax (GST). Profits and losses from cryptocurrencies are subject to capital gains tax.
- The UK government, on the other hand, intends to introduce certain legal processes in the Bitcoin industry. Their main objective is to make it mandatory for UK Bitcoin exchanges to perform due diligence on clients and to incorporate cryptocurrency platforms in anti-money laundering and counter-terrorism funding measures.
- The United Kingdom has issued a warning about the dangers of investing in initial coin offerings (ICOs) and cryptocurrencies, but it has yet to enact any specific regulations.
Conclusion
Based on the information, the aforementioned facts, and the current state of affairs in the cryptocurrency sphere, it’s clear that there is a lack of clarity on cryptocurrency regulation in India. Well-founded cryptocurrency legislation that takes into account crypto buying and selling exchanges, blockchain technology, investors, and the people employed in such fields is the need of the hour, and such a law deserves more attention.
References
- https://www.zeebiz.com/personal-finance/news-will-cryptocurrency-be-a-legal-tender-in-india-finance-secretary-clears-the-air-178083.
- https://www.news18.com/news/business/is-cryptocurrency-legal-in-india-crypto-bill-private-cryptos-all-questions-answered-4480385.html.
- https://www.bloomberg.com/news/articles/2022-02-01/india-to-launch-central-bank-digital-currency-next-fiscal-year.
- https://www.theweek.in/news/biz-tech/2022/02/01/budget-2022-is-crypto-now-legal-india-congress-asks-after-nirmala-sitharaman-announcement.html.
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