Game On: India - 8th edition

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Hi readers!

In our last edition we spoke of warm tidings for the online gaming industry. The positive developments continue this month as well, as the Madras High Court struck down for a second time the Tamil Nadu State Government’s ban on games of skill. The decision follows the trend of High Courts, including those of Bombay, Kerala, and Karnataka, consistently passing judgments in favour of online skill gaming. We discuss the latest decision in this edition.

This edition’s MVP is Kavin Bharti Mittal , founder and CEO of Hike , building the Rush Gaming Universe (RGU). He discusses his thoughts on the current regulatory landscape in online gaming, how RGU is navigating the opportunities, and what’s coming up for RGU’s users!

As always, we enjoy hearing from our readers. Share your comments or raise a query on online gaming in India at?[email protected] .

Game on!

Roland Landers

AIGF secures Madras HC order in favour of online games of skill!: On 9 November 2023, the Madras High Court passed its judgement overturning the State Government’s ban on online games of skill, including online rummy and poker. The AIGF was the lead petitioner in the case.?

As a background, the State Government had introduced an amendment in 2021 (2021 Amendment), which placed a ban on online games of skill, including rummy and poker played with stakes. The 2021 Amendment was struck down in its entirety by the Madras High Court in August 2021 (judgement copy ). The State Government then instituted a committee for providing recommendations for regulation of online gaming in the state. Subsequently, a new law was introduced in April 2023 for among others regulation of online gaming (Online Gaming Act). The Online Gaming Act also prohibited a number of skill games. The Online Gaming Act was challenged by AIGF as the lead petitioner, and Gameskraft , Games24x7 , Head Digital Works and Junglee Games too joined as petitioners.?

The court noted that the element of skill remains constant when a game is played online vs when played offline. While arriving at its findings, the court also took note of various measures adopted by online skill gaming platforms including charging of a fixed fee by the online gaming platforms, availability of games only to individuals who are 18 years or above, KYC verification to confirm age, and no evidence of the online gaming software being tampered (summary here ).

The Madras High Court’s second decision adds to the decades old jurisprudence of the Supreme Court of India and Karnataka, Kerala and Bombay High Courts, all resoundingly in favour of online skill gaming as a legitimate, Constitutionally-protected activity.?

High Courts’ continue grant of interim relief against tax notices: ?

• Gujarat High Court: On 3 November 2023, the Gujarat High Court issued an order for stay on a show cause notice issued to Vision11 under the Central Goods and Services Tax Act, 2017 (report ). The show cause notice demanded recovery of alleged unpaid dues of INR 1700 crores, by claiming that the petitioner’s online fantasy gaming platform, Vision11, was a betting and gambling platform. A similar show cause notice was also issued to another fantasy gaming platform, Twelfth Man Fantasy. The petitions filed by Vision11 and Twelfth Man Fantasy were then clubbed before the court. In its challenge to the demand notice before the High Court, Vision11 drew the court’s attention to previous decisions of the Bombay and Rajasthan High Courts along with the Supreme Court of India, who had held online fantasy to be a game of skill. In light of this, the Gujarat High Court ordered a stay on the operation of the show-cause notices issued to the two companies till the matter is decided by the court.
• Calcutta High Court: On 30 November 2023, the Calcutta High Court granted interim protection to Delta Tech Gaming from an INR 6,000 crore tax show-cause notice issued by the Directorate General of GST Intelligence, Kolkata. This follows a similar stay granted by the High Court of Sikkim on a INR 628 crore GST notice.?
• Bombay High Court: On 6 December 2023, the High Court passed an order preventing the adjudicating authority from passing a final order in relation to a demand notice of INR 500 crore received by Playerzpot Media Private Limited for recovery of INR 500 crores.
• Rajasthan High Court: On 7 December 2023, the High Court of Rajasthan stayed the passing of a final order in relation to the show-cause notice issued to Khud Ka Karobar Infotech Private Limited for recovery of alleged unpaid dues of INR 201 crores. While the tax proceedings will continue, no final order can be issued without permission from the High Court.

Group of Ministers (GoM) likely to meet on 15th December: As per reports , the GoM tasked with deliberating on regulation of online games is set to meet on 15 December 2023. Formed to review online gaming regulations, the new GoM consists of Amit Shah (Union Minister for Home Affairs), Ashwini Vaishnaw (Union Minister for Railways, Communications and Electronics & Information Technology), Anurag Thakur (Union Minister of Sports, Youth Affairs, and Information & Broadcasting), and Nirmala Sitharaman (Union Minister of Finance and Corporate Affairs.As per reports , the agenda will be to deliberate on money-laundering via offshore online gaming apps. In our last edition we had written about the Union Government proactively tackling the presence of illegal offshore gaming companies in India, including ED investigations and introduction of stricter regulations. The GoMs meeting appears to be a step in this direction. Watch this space next month on the outcome of the meeting!

IP battle rages on: In our last edition , we had reported that a stay granted to Exchange22 against MYFAB11 had been vacated by a single judge of the Delhi High Court. This order was appealed by Exchange22 before a division bench of the same court. In its order dated 10 November 2023, the division bench has now reinstated the interim stay granted to Exchange22.

In arriving at its conclusion, the court found that there was a delay of more than a year since the single judge had reserved its order and the actual pronouncement of the order. Further, the single judge’s order had noted that multiple gaming apps that had features similar to Exchange22 were launched before Exchange22; in contrast, the division bench found that the same was incorrect, and there was a further need to examine the extent to which Exchange22 and MYFAB11’s apps were completely identical.?

Watch this space closely for what unfolds in the next stage of this saga.

Kavin Bharti Mittal , is the founder and CEO of Hike , building the Rush Gaming Universe (RGU). RGU is building a new kind of game economy where players can play, earn and grow and become true owners in the very networks that they help create.?

• Approaching the current regulatory landscape in gaming: We are adapting to the 400%+ increase in GST on online gaming by enhancing player confidence through additional cash-backs. Our business strategy has rapidly evolved to counter the impact of this tax change. Recognising that the industry is now fully regulated, this is an opportunity to lead and capture a significant market share. We are actively engaging with policymakers to advocate for a balanced regulatory approach that supports innovation and player interests, and we are looking forward to the upcoming SRB Framework implementation and GST Council review.
• Product-level measures to ensure gaming remains engaging for RGU’s users: To keep gaming engaging for our users, we offer competitive user benefits, AAA quality games in PVP & tournament formats, and have streamlined financial transactions with one-click deposits and withdrawals through UPI. We have also designed a personalised first-time user experience to engage new players quickly and implemented a comprehensive loyalty program. Our approach includes blending new-age technologies with pre-existing systems, for example, ML-driven skill-based matchmaking and AI-driven game art and code development, enabling rapid game creation. It ultimately helps us create unique advantages.
• RGU is building a product for today's India: Rush Gaming Universe addresses the need for economic opportunities in India, where a significant portion of the population earns under $300 a month. By leveraging the massive gaming market, affordable data, and the digital payments boom, we aim to provide a platform where players can use their skills to play, win, and earn. Our app features over 15 'Games of Skill', including popular local games, catering to the diverse tastes of Indian gamers.
• How RGU is creating a safe gaming experience: Our commitment to safe gaming begins with responsible gaming, educating users, and setting limits on gameplay. We encourage players to take breaks and return with a fresh mindset. On the security front, we run both private and public Bug Bounty Programs to identify and resolve vulnerabilities. Our approach to safety encompasses robust security measures across enterprise, network, infrastructure, and applications, backed by proactive initiatives and a forward-looking security roadmap.
• What’s next from RGU: Users can expect an expanded game library with diverse genres to suit different preferences across India, including AAA quality games such as quick card games, Endless Runners, and Battle Royales. Looking ahead to 2024, we plan to integrate Web3 technologies, making complex blockchain and crypto technologies user-friendly. The objective is to enhance the gaming experience by incorporating crypto wallets and NFTs, allowing users to own the economies they help build.

AIGF organises investors’ roundtable on ‘Online Gaming Industry in India - Current Outlook and What's Next’: On 8 November 2023, AIGF hosted a selected group of investors and investment analysts to provide insights into the Indian online gaming sector from experts who are currently at the forefront of the sector’s legal and regulatory developments.?

• Retrospective taxation: Sudipta Bhattacharjee , Partner Tax at Khaitan & Co , took the floor to provide a comprehensive overview of the ongoing tax litigations in the Supreme Court of India. He highlighted a noteworthy shift in the approach of tax authorities; while previous notices were accompanied by orders freezing bank accounts, the recent notices lacked similar stringent measures.?
• Regulatory framework: Rakesh Maheshwari, former Director and Group Coordinator, Ministry of Electronics and Information Technology, asserted that the government is committed to providing a stable regulatory environment for legitimate online gaming businesses. Further, he stated that the government’s intention was not to shut but regulate the online gaming industry.
• Prospective taxation: Dhruv Garg provided insights into the 50th GST Council meeting's proposal to impose 28% GST on the full face value of bets. Responding to a query from one of the investors, Mr. Landers explained that the government has invited AIGF for consultations and to provide additional data regarding the impact of the GST change. He assured the gathering that AIGF continues to advocate for GST to be charged only on gross gaming revenue and not on deposits. He noted that the GST Council will review its decision in six months, and AIGF will persist in pleading the case of the gaming industry.

Mobile games driving Indian online gaming growth: Earlier in November, Lumikai Fund launched its annual ‘State of India Gaming Report FY23 ’ in collaboration with Google. The report also includes a survey of over 2000 gamers across India, providing valuable insights on user behaviour and demographics. Most notably, mobile gaming has emerged as an important driver of growth in India, with 15.4 billion downloads in FY23, second only to China.

The survey also found that 41% of the online gamers in India were women. This is a key insight for game developers and operators to build games and marketing strategies that are geared towards this demographic. The report further provides that in-app purchases and ad revenues are key drivers of revenue growth in online gaming.?

Record revenue recorded for gaming companies: In spite of regulatory hurdles, it seems to be business as usual for online gaming companies so far as financial performance is concerned.

• Earlier in November, Nazara Technologies Limited reported a 53% jump in its Q2 net profit (report ).
• Further, bootstrapped gaming operator Gameskraft reported a 14% jump in its profit in FY23 to INR 1,062 crores.
• Similarly, Mobile Premier League (MPL) reported a 63% increase in its revenue in FY23, with 38% contributions from its North America, Africa and Europe operations.?

The All India Gaming Federation is the apex industry body for online gaming in India. Being the oldest, largest and the most diverse industry association for online gaming, AIGF’s overarching vision is the growth of the Indian online gaming ecosystem in an open, safe, and accountable manner, and making online gaming a cornerstone of Digital India. At AIGF we want to support and push the vision of Create in India and have the Indian gaming industry compete globally.