The enforcement directorate (ED) plans to scrutinize bitcoin exchanges to check for potential violations of foreign exchange rules by the exchanges and cryptocurrency investors, said two ED officials aware of the matter.

The move follows a survey by the income-tax (I-T) department to determine how tax assessees were treating bitcoin investments. If the I-T department concludes that bitcoin is a currency, it would establish a clear violation of the Foreign Exchange Management Act (FEMA), one of the officials said.

“It is income-tax (department) which is heading the investigation. If it finds any violation of FEMA, we will launch an investigation. We are waiting for income-tax (department) to form its opinion on how to treat bitcoin," said the official on condition of anonymity.

On 13 December, the I-T department conducted a survey on bitcoin exchanges across the country to see how the digital currency was being treated by tax assessees—as a commodity, currency or a financial security.

Analysts disagree on how cryptocurrencies should be classified, although market capitalization numbers for bitcoin are being bandied about as though it were an asset. The price of bitcoin has soared as much as 1,766% since the start of 2017 amid a debate on whether it is a legitimate financial asset.

“If bitcoin is a commodity, then goods and service tax should be payable. However, it is very early to say how bitcoins should be treated. It is after the analysis of the material collected during the survey (that) we will be able to say how bitcoin should be treated for taxation purpose," an I-T official said on condition of anonymity.

Currently, the I-T department is looking at bitcoin under section 133A (which gives powers to the taxman to scrutinize or to inspect documents/books) of the Income Tax Act and high net worth individuals are also under the scanner, the official added.

Currently, no regulations exist for cryptocurrencies in India although regulators such as the Reserve Bank of India (RBI) have repeatedly issued warnings that trading or investing in them are risky.

“On bitcoin, all regulators are coming together to form regulations including RBI, Securities and Exchange Board of India and the ministry of IT (information technology). So far it does not seem to be a systemic issue but we can’t ignore it and are looking at that," Sebi chairman Ajay Tyagi said on the sidelines of a conference on Wednesday.

“If there are some bitcoin schemes that look like CIS (collective investment scheme), then we would look into it," he added.

Tax experts say that taxation depends on whether you hold something as a capital asset, which is an investment.

“If bitcoin is held as an investment, it will be taxed for capital gains—like an unlisted security. In case it is termed a commodity, it will be called stock-in-trade under income tax parlance and hence will be taxed under the head business income," said Gautam Nayak, a Mumbai-based chartered accountant.

The I-T department’s “role is to find whether people have paid income tax on it. All stock exchanges have to file annual information return. If you have transactions more than Rs10 lakh a year, exchanges will disclose it to the I-T department. But unfortunately in case of bitcoin exchanges, they have remained below the radar," added Nayak.

A bitcoin exchange says bitcoin’s classification should be based on its use. “Bitcoin is a futuristic concept that has multiple uses and can be used differently based on its requirement. Our perspective on its classification is that it should be determined by the use case or the business developing around it," said Benson Samuel, chief technology officer and co-founder, Coinsecure.

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