{"id":1471,"date":"2026-06-25T16:24:41","date_gmt":"2026-06-25T16:24:41","guid":{"rendered":"https:\/\/theleagle.in\/?p=1471"},"modified":"2026-06-25T16:27:54","modified_gmt":"2026-06-25T16:27:54","slug":"wide-scope-of-taxation-powers-supreme-court-endorses-gambling-related-gst-amendments-i","status":"publish","type":"post","link":"https:\/\/theleagle.in\/?p=1471","title":{"rendered":"Wide Scope of Taxation Powers: Supreme Court Endorses Gambling-Related GST Amendments-I"},"content":{"rendered":"
<\/div>\n

The Supreme Court in Directorate General of Goods and Services Tax Intelligence (HQ) & Ors v Gameskraft Technologies Private Limited and Ors<\/a> (\u2018Gameskraft case\u2019) upheld one of the most contested amendments to the Central Goods and Services Tax Act, 2017 (\u2018CGST Act, 2017\u2019). While the judgment in Gameskraft case is more than four hundred pages long, the effective summary is: the Supreme Court has allowed the Revenue Department to reinterpret settled meanings, introduce new concepts, and make GST demands retrospectively. And the GST demands are so gigantic that online companies will never be able to pay them and effectively shut shop. <\/p>\n\n\n\n

The Supreme Court\u2019s judgment, prima facie, looks like an exhaustive analysis on GST, gambling, and related issues. In my view, the Supreme Court\u2019s judgment in Gameskraft case is an elaborate exercise to agree to every argument advanced by the Revenue Department while skipping substantive engagement with crucial issues. To read an analysis of the judgment directly skip to Part-II<\/a> or read this article for the background and context.\u00a0\u00a0<\/p>\n\n\n\n

I. Situating Actionable Claims within the GST Universe <\/strong><\/p>\n\n\n\n

(i) Pre-2023 Position<\/p>\n\n\n\n

Originally, CGST Act, 2017 applied to actionable claims by virtue of two provisions: <\/p>\n\n\n\n

Section 2(52), CGST Act, 2017 defined goods to mean every kind of movable property other than money and securities but included actionable claims. Entry 6, Schedule III, CGST Act, 2017 stated that actionable claims shall not be treated as supply of goods or supply of services except \u2018lottery, betting and gambling.\u2019 <\/p>\n\n\n\n

Thus, only three actionable claims- lottery, betting and gambling – were subject to GST. <\/p>\n\n\n\n

Simultaneously, Section 2(17)(vii), IGST Act, 2017 defined \u2018online information and database access or retrieval services\u2019 to include \u2018online gaming\u2019. Use of the terms \u2018gambling\u2019 and \u2018online gaming\u2019 suggested that GST laws acknowledged a distinction between the two kinds of activities. Former was categorized with goods while the latter was classified as a service. The different tax rates, before 2023, wherein gambling was subject to 28% GST and online gaming to 18% GST also provided credence to the understanding that both activities were different. <\/p>\n\n\n\n

The difference was also informed by the ratio of The State of Bombay v R.M.D. Chamarbaugwala<\/a> (\u2018RMDC-I case\u2019). In RMDC-I case, the Supreme Court had held that games that pre-dominantly involved skill were games of skill while if chance was pre-dominant such games constituted gambling. Courts \u2013 for example, in Shri Varun Gumber v UT of Chandigarh & Ors<\/a> (\u2018Varun Gumber case\u2019) – relying on the test laid down in RMDC-I case held that online fantasy gaming amounted to a game of skill and was not gambling. Judgments such as in Varun Gumber case clarified that online fantasy gaming was not a punishable offence of gambling and influenced their taxability under GST. For example, they provided continued justification for online fantasy gaming to be classified as \u2018online gaming\u2019 alongside services and thereby attracting lower GST rates.   <\/p>\n\n\n\n

The above position of law continued until the Revenue Department took the position that all online money games amounted to gambling. The skill-chance distinction was replaced by the criteria of monetary stakes<\/a>, i.e., use of monetary stakes in any online game amounted to gambling. And, accordingly, show cause notices were issues to online gaming companies. Equally importantly, the Revenue Department argued that online gaming companies were liable to collect GST on the entire monetary stake placed by players and not merely the platform fee charged by online gaming companies. The Revenue Department\u2019s stance had no basis in the text of GST laws, or secondary legislation, or any judicial precedent. Equating games played for monetary stakes to gambling was a novel stance and deviated from the test laid in RMDC-I case. <\/p>\n\n\n\n

The Karnataka High Court \u2013 in Gameskraft Technologies Pvt Ltd v Directorate General of GST Intelligence<\/a> \u2013 pointed to weak legal foundation of the Revenue Department\u2019s GST demands and quashed the show cause notices. The High Court held that online rummy, even if played for monetary stakes, did not amount to betting or gambling. And online gaming platforms were intermediaries liable to pay GST at 18% on their platform fee and not the entire value of monetary stakes. The High Court termed the Revenue Department\u2019s demands as arbitrary. The High Court specifically highlighted<\/a> that the Revenue Department was not able to point to any specific valuation rule which allowed it to levy GST on the entire value of monetary stakes. The Supreme Court\u2019s judgment in Gameskraft case is result of the Revenue Department\u2019s appeal against the Karnataka High Court\u2019s judgment. <\/p>\n\n\n\n

In the interim, before the Supreme Court could adjudicate on the appeal, the Revenue Department initiated amendments to the GST laws, specifically CGST Act, 2017 that provided statutory and legal basis to its stance on gambling and GST liabilities of online gaming companies.           <\/p>\n\n\n\n

(ii) Amendments in 2023 <\/p>\n\n\n\n

Some relevant amendments made to the CGST Act, 2017 are:  <\/p>\n\n\n\n

Section 2(80A) and 2(80B) introduced concepts of online gaming and online money gaming. The latter was defined to mean online gaming in which players pay or deposit money or money\u2019s worth in the expectation of winning money or money\u2019s worth. And this was irrespective of whether the outcome was based on skill, chance or both and whether the game was permissible or not. <\/p>\n\n\n\n

Simultaneously, Section 2(102A) added the phrase \u2018specified actionable claims\u2019 and encompassed six categories: lottery, betting, gambling, online money gaming, horse racing, and casinos. Entry 6, Schedule III, CGST Act, 2017 was amended to state that actionable claims shall not be treated as supply of goods or supply of services except \u2018specified actionable claims.\u2019<\/p>\n\n\n\n

The net result of the above-mentioned amendments was that specified actionable claims were made taxable under GST laws. And specified actionable claims included online money gaming. Latter included all online games where players played for monetary stakes. Thus, providing statutory basis to the Revenue Department\u2019s stance that online money gaming amounted to gambling.   <\/p>\n\n\n\n

Alongside, Rule 31B was added to the CGST Rules, 2017 which specified value of supply in case of online gaming. Rule 31B stated that the value of supply in case of online gaming including online money gaming was: <\/p>\n\n\n\n

Notwithstanding anything contained in this chapter, the value of supply of online gaming, including supply of actionable claims involved in online money gaming, shall be the total amount paid or payable to or deposited with the supplier by way of money or money\u2019s worth, including virtual digital assets, by or on behalf of the player:<\/em><\/em><\/p>\n\n\n\n

Similar rules were introduced casinos under Rule 31C wherein the face value of bet was specified as the value of supply in all scenarios. And this aligned with Rule 31A under which face value of lottery, betting, gambling, and horse racing was 100% of the face value of the bet or the amount paid into the totalizator.   <\/p>\n\n\n\n

Rule 31B introduced a new measure of GST relating to online money gaming. The full value of monetary stake was used as the measure to calculate the GST payable and not merely the platform fee collected by online gaming companies. The above amendments introduced in 2023, blunted two aspects of the Karnataka High Court\u2019s judgment: first, that the Revenue Department\u2019s argument that online gaming companies should pay GST on the entire monetary value of stakes was not rooted in any specific valuation rule and that online games such as rummy did not amount to gambling merely because players used monetary stakes.   <\/p>\n\n\n\n

II. A Four-Pronged Change   <\/strong><\/p>\n\n\n\n

While the issues in Gameskraft case can divided into various silos depending on one\u2019s inclinations. To achieve coherence and in respect of brevity, in these two articles I will only focus on four broad issues in the two articles and keep the discussion anchored in online gaming companies.   <\/p>\n\n\n\n

(i) Definition of Online Money Gaming <\/p>\n\n\n\n

The above amendments introduced the novel concept of online money gaming and made the skill-chance distinction irrelevant to GST. States of Karnataka and Tamil Nadu had introduced similar concepts in their gambling laws to regulate online gambling and the Supreme Court was hearing a challenge to those laws analogously. And a via a separate judgment \u2013 State of Tamil Nadu v Junglee Games India Private Limited<\/a>(\u2018Junglee Games case\u2019) – delivered on the same date as Gameskraft case, the Supreme Court had upheld power of States to use monetary stakes as the relevant criteria to distinguish gambling from permissible activities. And the Supreme Court in Gameskraft case, cited Junglee Games case, and concluded that:<\/p>\n\n\n\n

\u2026 where online games, including games predominantly involving skill, are played for stakes, the activity attracts the essential characteristics of betting and gambling for the purposes of the impugned levy<\/em>. (para 49.4)<\/p>\n\n\n\n

More details on online money gaming, and the Junglee Games case are in my previous posts here<\/a> and here<\/a>. Thus, in this article I won\u2019t repeat the vulnerabilities and limitations of that approach. <\/p>\n\n\n\n

Though for the GST context it is relevant to mention that once the Supreme Court in Junglee Games case accepted that use of monetary stakes converted online gaming into gambling, it endorsed the Revenue Department\u2019s view that online gaming companies facilitated gambling. Because most online games such as rummy and poker required players to stake money and online gaming companies earned a portion of the stakes as platform fee. <\/p>\n\n\n\n

(ii) Expanded Scope of Actionable Claims <\/p>\n\n\n\n

Once online money gaming was held to be gambling, the foremost GST-related issue was about the legislative competence relating to actionable claims. Including but not limited to the Parliament\u2019s competence to include actionable claims within the definition of goods, constitutionality of levy of GST on betting and gambling, and whether online gaming companies even supplied actionable claims to its players. The Supreme Court engaged with the conceptual parameters of actionable claims and upheld all provisions relating to actionable claims.   <\/p>\n\n\n\n

(iii) Change in Value of Supply <\/p>\n\n\n\n

The introduction of new valuation rule was responsible for a significant increase in GST liability of online gaming companies. The new valuation rule was more onerous for online gaming company, which until the 2023 amendments, were paying GST on Gross Gaming Revenue (\u2018GGR\u2019), i.e., the net amount after deducting winnings from initial wagers. Use of GGR for levying GST is a widely adopted practice in various jurisdictions \u2013 as online gaming companies mentioned in their pleadings \u2013 since it is the revenue generated by online gaming companies. The change in measure to tax wherein to full value of bets instead of GGR required transformed GST into an extortionary tax. But, the Supreme Court did not examine the issue of valuation\/measure of tax in a meaningful manner.  <\/p>\n\n\n\n

(iv) Nature of Amendment(s): Prospective or Retrospective     <\/p>\n\n\n\n

The amendments also brought to fore the question of whether they were merely \u2018clarificatory\u2019 or \u2018substantive\u2019 in nature. Typically, if an amendment is clarificatory courts permit their retrospective application since they do not impose an additional burden on taxpayers. Because clarificatory amendments merely \u2018clarify\u2019 the import and meaning of the provision. Substantive amendments, which introduce an additional burden on taxpayers are rarely permitted to be effective retrospectively. While the distinction between \u2018clarificatory\u2019 and \u2018retrospective\u2019 amendments can, at times, be slippery. In Gameskraft case, the Supreme Court deviated from the Karnataka High Court\u2019s approach where the latter highlighted that the Revenue Department\u2019s demand was not backed by any specific valuation rule. Instead, the Supreme Court focused on taxable event and that actionable claims in betting and gambling were subject to GST even before 2023. And termed valuation rules as merely specifying the tax liability.  <\/p>\n\n\n\n

I\u2019ve analysed the Junglee Games judgment previously here and here, while the above-mentioned issues that arise from Gameskraft judgment are discussed in detail in Part-II of this article<\/a>.\u00a0<\/p>\n\n\n\n

However, before I indulge in a typical academic and serious analysis, a short contextual note below to underline nature of the dispute and how the Revenue Department paralyzed an entire sector of the economy and got away with it.    <\/p>\n\n\n\n

III. Absurdity of the GST Demands<\/strong><\/p>\n\n\n\n

At several places in the judgment, the online gaming companies and casinos pointed to the unprecedented nature of GST demands. For example, Gameskraft was issued a show cause notice demand a payment of Rs 2,09,89,31,31,501\/- (Rs 21,000 crores appx) while for the relevant period its revenue was Rs 4,650 crores; substantially lower than the amount sought to be recovered. Clearly an \u2018absurd and disproportionate\u2019 GST demand as Gameskraft argued. Similarly, casinos argued that the original GST demand from them was Rs 11,139 crores while their gross gaming revenue was Rs 1,640 crores. Even though the Revenue Department has won the case, they are likely to see only a fraction of the original revenue demand. Because the relevant taxpayers simply do not have the amount of money being demanded by way of GST.<\/p>\n\n\n\n

From a strictly revenue perspective, it\u2019s a pyrrhic victory for the Revenue Department where despite winning the case, even realizing a small fraction of the initial tax demand will be a miracle. From a structural perspective the Supreme Court, in its Revenue Department-friendly judgment, has handed the Revenue Department two weapons that can be trained against any sector of the economy: retrospective amendments and a change in measure of tax. <\/p>\n\n\n\n

While we are not unaccustomed to the Revenue Department using retrospective amendments to alter statutory text to negate courts judgments. Or otherwise amend and align the provisions to their view and interpretation. In Gameskraft case, the usual retrospective route was combined with a change in measure of tax which substantially altered the tax payable. But the Supreme Court did not examine either issue with the necessary rigor and dismissed the entire tangent of disproportionate GST demands. Instead, chose to focus on narrow definitions of taxable event, actionable claims, and gambling and completely ignoring the unprecedented nature of tax demands. A hyper focus on tax, while ignoring the context, resulted in a judgment that feels intimidating and analytical. But is a generous dole of powers to the Revenue Department.    <\/p>\n\n\n\n

Anyhow, what did the Supreme Court say specifically? I\u2019ve written about it here<\/a>.\u00a0<\/p>\n","protected":false},"excerpt":{"rendered":"

The Supreme Court in Directorate General of Goods and Services Tax Intelligence (HQ) & Ors v Gameskraft Technologies Private Limited and Ors (\u2018Gameskraft case\u2019) upheld one of the most contested amendments to the Central Goods and Services Tax Act, 2017 (\u2018CGST Act, 2017\u2019). While the judgment in Gameskraft case is more than four hundred pages long, the … Read more<\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_themeisle_gutenberg_block_has_review":false,"cybocfi_hide_featured_image":"","footnotes":""},"categories":[137],"tags":[146,375,61,59,12,374,53,317,94,32],"class_list":["post-1471","post","type-post","status-publish","format-standard","hentry","category-there-are-two-certainties-in-life-taxes-and-complaints-about-taxes","tag-constitutionality","tag-fiscal-matters","tag-gambling","tag-gameskraft","tag-gst","tag-junglee-games","tag-karnataka-high-court","tag-online-gaming","tag-ravpratapsingh","tag-supreme-court"],"yoast_head":"\nWide Scope of Taxation Powers: Supreme Court Endorses Gambling-Related GST Amendments-I - TheLeagle | Eco Law Forum<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/theleagle.in\/?p=1471\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Wide Scope of Taxation Powers: Supreme Court Endorses Gambling-Related GST Amendments-I - TheLeagle | Eco Law Forum\" \/>\n<meta property=\"og:description\" content=\"The Supreme Court in Directorate General of Goods and Services Tax Intelligence (HQ) & Ors v Gameskraft Technologies Private Limited and Ors (\u2018Gameskraft case\u2019) upheld one of the most contested amendments to the Central Goods and Services Tax Act, 2017 (\u2018CGST Act, 2017\u2019). 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