One cannot but agree that the nebulous technological traits of online gaming virtually make it perceptively difficult, if not impossible, to identify who owns these specified goods, who transfers them, who receives them, etc. First, there are different statutory prescriptions for supply of goods versus supply of services. On such an assumed premise perhaps, it appears that the Government is right in extending the GST consequences applicable for offline gambling to online gambling.

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In the absence of such finding, decades of jurisprudential reflection would firmly institute skill-based online gaming activities as a game of skill even if played with monetary stakes, thus excluding it from the scope of betting and gambling and thus vindicating the stand of the online gaming industry. The provision mandates that irrespective of the amount received from a player as a service fee, the online gaming supplier must charge GST on the entire betting amount. If this provision is applied, what an online gaming player actually pays to the online gaming platform for the platform’s facilitation services shall form the value on which GST would be payable. In fact, there was far more clarity in the service tax regime insofar as the law specifically enacted a definition of betting and gambling, which was directly linked to games of chance.15 Thus, the pre-GST legislation enacted by the Parliament itself reveals that the underlying legislative understanding has always been to appreciate betting and gambling in the judicially canvassed test of games of chance.

The fact that regulatory provisions have been enacted to control gambling by issuing licences and by imposing taxes does not in any way alter the nature of gambling which is inherently vicious and pernicious. Interpretations.— (15) “betting or gambling’ means putting on stake something of value, particularly money, with consciousness of risk and hope of gain on the outcome of a game or a contest, whose result may be determined by chance or accident, or on the likelihood of anything occurring or not occurring. Section 7(1)(c) of the CGST Act specifically characterises import of services for a consideration to constitute “supply”.… In the commercial reality of the times, the conceptual lines between goods and services wear thin. In modern commerce, the distinction between goods and services is increasingly becoming a matter of degree than substance. Nonetheless, the effect of the GST authorities’ argument amounts to enforcing this new mechanism effectively from July 2017 i.e. since the introduction of GST, a position which does not appear to be logical or reasonable and, therefore, is opposed by the online gaming industry.

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• This ruling aligns with earlier decisions by the Sikkim High Court, which had struck down multiple service tax levies on lottery-related activities between 2012 and 2017.
• Thus, the arguments appear to have merit that the expression “betting and gambling”, which was not defined in the GST laws should be given the same meaning (as implying games of chance) in view of the judicial exposition36 of the expression.