The market size of the Indian media and entertainment (M&E) sector is estimated to be in excess of USD 20 billion. India has more than 180 million television households and approximately 900 television channels (including news and current affairs). The country also produces the highest number of films–around 2,000 films every year in more than 20 languages.

The key sub-sectors under M&E include (1) broadcasting, (2) print, (3) films, (4) sports, (5) radio, (6) music, (7) digital advertising, (8) out-of-home advertising, (9) animation and VFX, (10) gaming, (11) live events. The M&E sector is expected to outpace GDP growth in 2018. Now, with everyone’s eyes on Budget 2018 proposals, the key expectations of the sector are outlined below:

Mergers and amalgamations

Industrial undertakings are allowed to carry forward tax losses in case of merger or amalgamation. The definition of industrial undertaking, includes manufacture of computer software, providing telecommunication services. However, the sector (including broadcasting, radio) has not been included in this definition. Accordingly, the benefit of tax losses is currently not available for M&E players in cases of consolidation.

On account of evolving business models (including moving to a B2C model), there is a thrust on consolidations within the M&E sector. Considering this and the convergence of the broadcasting and radio sectors with telecommunications, the government should consider including broadcasting and radio under the definition of industrial undertaking for carrying forward tax losses. This would facilitate consolidations in broadcasting and radio.

Infrastructure status

Broadcasting is capital intensive and requires huge investment of funds on account of digitisation, upgrade of technology and infrastructure architecture. Currently, broadcasting is not granted infrastructure status and the government should consider granting such status to the sector. This, amongst others, would aid financing for future growth and help the sector achieve its potential.

Foreign direct investment (FDI) in print

Currently, FDI in print (news and current affairs) is capped at 26 per cent. This sector is trying to deal with the impact of digitalisation. Considering the trend of liberalising the FDI policy and sector’s needs for investment in digital assets, the government should consider increasing the FDI cap for print to 49 per cent. This would help in attracting foreign funds into the sector.

Transfer pricing

Safe harbour is a mechanism under which tax authorities accept the transfer price (under certain circumstances) declared by the taxpayers, without undertaking a detailed audit/scrutiny. The scope of safe harbour transactions has been enlarged in 2017 to provide certainty to taxpayers and transactions such as provision of software development services for IT/ITeS sector are part of the safe-harbour regime. However, transactions specific to the M&E sector are currently not a part of the regime.

The government should consider including the transaction of distribution of content by an Indian company to its overseas group company under the safe-harbour regime. This would provide relief to M&E players in terms of obtaining certainty from a transfer pricing perspective.

Withholding tax

Over the last couple of years, the government has been forthcoming in terms of clarifying tax positions (for instance expense deduction for abandoned films, withholding tax in respect of advertising contracts and content transactions) by way of circulars to avoid litigation. Outlined below are a few issues that the government should consider clarifying the withholding tax position to reduce litigation:

·  Channel placement fees: The government should consider clarifying that such payments do not amount to royalty/fees for technical services considering the Bombay high court decision on this issue.

·  Live broadcast rights: Clarifying that such payments do not amount to royalty/fees for technical services should be considered based on the Delhi high court and Mumbai tribunal decisions on this issue.

·  Transponder fees: The government should also consider clarifying that a non-resident taxpayer can claim the benefit under a tax treaty for transponder fees and domestic tax law explanation of the process should not be       imputed to the tax treaty definition of royalty.

Goods and services tax (GST)

Services by way of admission to exhibition of cinematograph films is subject to GST at 18 per cent or 28 per cent, depending on the price of the ticket. In addition to GST levied by state and central governments, the right to levy and collect tax has also been given to local authorities and this right continues even after implementation of GST. It should be ensured by the government that such local bodies do not levy additional tax on exhibition of films. If levied, a corresponding reduction in GST rate should be granted.

The M&E sector is at the cusp of exponential growth opportunities but to achieve such growth trajectory, the support of the government reforms is of utmost importance. Hopefully, on 1 February 2018, when the Budget proposals are presented, we would take a significant step in that direction.  

Thakkar is Partner and Bhojwani is Director with Deloitte India. The views expressed are personal and Indiantelevision.com may not