Double taxation avoidance agreement

Double taxation may arise when the jurisdictional connections, used by different countries, overlap or it may arise when the
taxpayer has connections with more than one country. A person earning any income has to pay tax in the country in which the
income is earned (as source Country) as well as in the country in which the person is resident. As such, the said income is
liable to tax in both the countries. To avoid this hardship of double taxation, Government of India has entered into Double
Taxation Avoidance Agreements (DTAA’s) with various countries. DTAA’s provide for the following reduced rates of tax on
dividend, interest, royalties, technical service fees, etc., received by residents of one country from those in the other.

INTRODUCTION
India has a well-developed tax structure with a three-tier federal structure, comprising
the Union Government, the State Governments and the Urban/Rural Local Bodies. The
power to levy taxes and duties is distributed among the three tiers of Governments, in
accordance with the provisions of the Indian Constitution. Since 1991 tax system in
India has under gone a radical change, in line with liberal economic policy and WTO
commitments of the country like reduction in custom and excise duties, lowering
corporate tax, widening of the tax base and toning up the tax administration. The
phenomenal growth in international trade and commerce and increasing interaction
among nations, citizens, residents and businesses of one country has extended their
sphere of activity and business operations to other countries. To avoid hardship to
individuals and also with a view to ensure that national economic growth does not
suffer, the Central government under Section 90 of the Income Tax Act has entered
into Double Tax Avoidance Agreements with other countries.

OBJECTIVES1[1]

(1) Protection against double taxation: These Tax Treaties serve the purpose of
providing protection to tax-payers against double taxation and thus preventing any
discouragement which the double taxation may otherwise promote in the free flow of
international trade, international investment and international transfer of technology;
(2) Prevention of discrimination at international context: These treaties aim
at preventing discrimination between the taxpayers in the international field and
providing a reasonable element of legal and fiscal certainty within a legal framework;
(3) Mutual exchange of information: In addition, such treaties contain
provisions for mutual exchange of information and for reducing litigation by providing
for mutual assistance procedure; and
(4) Legal and fiscal certainty: They provide a reasonable element of legal and
fiscal certainty within a legal framework.

WHAT IS DOUBLE TAXATION?

Double taxation can be defined as the levy of taxes on income or capital in the hands
of the same tax payer in more than one country, in respect of the same income or
capital for the same period.2[2] Double taxation may arise when the jurisdictional
connections, used by different countries, overlap or it may arise when the taxpayer

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has connections with more than one country. For e.g. An NRI will have to pay tax on
the income earned in India on source basis i.e. where income accrues or arises. On the
same income, tax will have to be paid in the country of residence on residence basis.
As such, an NRI will end up paying Income-tax twice on the same income. Tax Treaties
provide protection to tax payers against such double taxation.

WHAT IS DOUBLE TAXATION AVOIDANCE

AGREEMENT?
A person earning any income has to pay tax in the country in which the income is
earned (as Source Country) as well as in the country in which the person is resident.
As such, the said income is liable to tax in both the countries. To avoid this hardship of
double taxation, Government of India has entered into Double Taxation Avoidance
Agreements (DTAAs) with various countries. DTAAs provide for the following reduced
rates of tax on dividend, interest, royalties, technical service fees, etc., received by
residents of one country from those in the other.3[3] Where total exemption is not
granted in the DTAAs and the income is taxed in both countries, the country in which
the person is resident and is paying taxed, the credit for the tax paid by that person in
the other country is allowed.

Where tax relief has been given by one country, the country of residence generally
allows credit for the tax so spared, to avoid nullifying the relief. If the rate prescribed
in the Indian Income-tax Act, 1961 is higher than the rate prescribed in the Tax Treaty
then the rate prescribed in the Tax Treaty has to be applied. In other words, provisions
of DTAA or Indian Income-tax Act, whichever are more favourable to an individual
would apply.4[4] Thus In order to avail the benefits of DTAA, an NRI should be resident
of one country and be paying taxes in that country of residence. India has entered into
DTAA with around 65 countries. These treaties are based on the general principles laid
down in the model draft of the Organisation for Economic Cooperation and
Development (OECD) with suitable modifications as agreed to by the other contracting
countries.
Thus in case there is a DTAA between India and United States of America, an NRI
should be a resident of USA and paying taxes there. In case of income earned in India
by NRI, tax paid in India is allowed as credit against tax paid in USA.

WHO ARE THE SUBJECTS OF SUCH AGREEMENT?

A typical DTA Agreement between India and another country usually covers persons,
who are residents of India or the other contracting country, which has entered into the
agreement with India. A person, who is not resident either of India or of the other
contracting country, would not be entitled to benefits under DTA Agreements.

EXCLUSIVE FEATURE OF DTAA

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One of the most important clauses of double taxation avoidance treaty between
different nations is the clause of non-discrimination.5[5] Non-discrimination in simple
words means that neither of the contracting countries gives any preferential
treatment in taxing its own residents or citizens vis-Ã -vis foreign persons i.e. there
is no discrimination between the local assesses and foreign assesses as far as
taxation is concerned. There must be a level playing field for assesses, locals as well
as the foreigners. Most international tax treaties provide that there will not be any
discrimination in taxation between locals and foreigners. In fact, if there is any
discrimination, it will be a positive one. This may be for several reasons such as
incentive for foreign investment in the country, globalization etc.

INTERPRETATION
The correct legal position is that where a specific provision is made in the double
taxation avoidance agreement, that provision will prevail over the general provisions
contained in the Income-tax Act, 1961. In fact, the Double Taxation Avoidance
Agreements, which have been entered into by the Central Government under section
90 of the Income-tax Act, 1961, also provide that the laws in force in either country
will continue to govern the assessment and taxation of income in the respective
country except where provisions to the contrary have been made in the agreement.
Thus, where a Double Taxation Avoidance Agreement provides for a particular mode of
computation of income, the same should be followed, irrespective of the provisions in
the Income-tax Act. Where there is no specific provision in the agreement, it is the
basic law, i.e. the Income-tax Act that will govern the taxation of income.

SCOPE OF SUB-SECTION (1)

The four clauses of sub-section (1) lay down the scope of power of the Central
Government to enter into an agreement with another country. Clause (a)
contemplates situations where tax has already been paid on the scope in both
countries and it empowers the central government to grant relief in respect of such
double taxation. Clause (b), which is wider than the clause (a),6[6] provides that an
agreement may be made for the avoidance of double taxation of income under this
Act and under the corresponding law in that country. This clause cannot be extended
to make provisions in agreements for situations not relating to double taxation.
However, it is not necessary that a situation regarding avoidance of double taxation
can arise only when tax is actually paid in one of the contracting countries. 7[7]
Moreover, as long as the objectives in these clauses are sought to be effectuated by
any agreement, the power of the central government cannot be said to have been
used in an ultra vires manner.8[8] Clause (c) and (d) essentially deal with agreements
made for exchange of information, investigation of cases and recovery of Income Tax.

NEW CLAUSE (a)

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With effect from 1st April 2004, clause (a) will be substituted to provide that an
agreement may also be entered into for granting relief in respect of income-tax
chargeable under this Act an under the corresponding law in force that country, to
promote mutual economic relations, trade and investment. With this amendment, the
power of the Central Government has been greatly widened, and it an now enter into
agreements not only for the avoidance of double taxation, but also for exempting
income from taxation. It is clear from the language of the clause that this power can
be used only for granting relief in respect of income tax, and not to create any fresh
charge, obligation or responsibility.

SUB-SECTION (3)
This subsection, applicable from 1st April 2004, relates to terms used, but not defined,
in this Act or in any agreement made under subsection (1). Such terms are to have
the same meaning as assigned to them in any notification issued in this behalf by the
Central Government. However, the meaning of such term must not be inconsistent
with the provisions for the Act or the agreement; further, the term can be interpreted
differently, if the context so requires.

EXPLANATION TO SECTION 90
The Finance Act 2001, has inserted an explanation to this section with retrospective
effect from the commencement of the Act, to clarify that the charge of the tax in
respect of a foreign company at a rate higher than the rate at which a domestic
company is chargeable, shall not be regarded as a less favorable charge or levy of tax
in respect of such foreign company, where such foreign company has not made the
prescribed arrangement for declaration and payment within India, of the dividends
(including dividends on preference shares) payable out of its income in India.

APPEAL AND REFERENCE

An application for refund may be made under section 237 by an assessee entitled to
relief under this section, and from the order of the AO, on such application for refund
an appeal would lie to the CIT(A), a second appeal to the tribunal and a reference to
the High Court.9[9]

SECTION 91: COUNTRIES WITH WHICH NO

AGREEMENT EXISTS
Sub-section (1) of this section grants unilateral relief in cases where section 90 does
not apply, subject to the fulfillment of the following conditions:
(1) the assessee should be resident in India in the previous year;
(2) the income should have accrued in fact outside India10[10] and should not be
deemed under any

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 provision of this Act to accrue in India;
(3) the income should be taxed in both Indian and in a foreign country with which
India has no
agreement for relief against or avoidance of double taxation11[11]; and
(4) the assessee should have in fact paid the tax in such foreign country by
deduction or
otherwise.

Unilateral relief under this section is available only in respect of the doubly taxed
income, i.e., that part of the income which is actually included in the assessees total
income: the amount deducted under Chapter VI A is not doubly taxed and therefore,
no relief is allowable in respect of such amount.12[12] Further, the section
contemplates granting of relief calculated on the income country wise and not on the
basis of aggregation or amalgamation of income from all foreign countries.13[13]
This section should be liberally construed, for example, the dividend from a United
Kingdom company, from which tax is deducted and retained by the company, is
entitled to relief under this section, and the passing of an assessment order in the
United Kingdom, in respect of such dividend is not necessary.14[14]
In order that this section, it is necessary that the foreign tax should be levied in a
country with which India has no agreement for relief against or avoidance of double
taxation; but it is immaterial that the tax paid in such a foreign country is in respect of
income arising in another foreign country with which India has such an agreement.

In similar circumstances, sub-section (3) affords relief to a non resident in respect of

his share in the foreign income of a registered firm, which is assessed as resident in
India.

In Gammon India v. CIT,15[15] the Bombay High Court Held on the facts of the case
that a relief under this section could not be claimed in rectification proceedings under
section 154, but the Calcutta High Court took a different view in CIT v. United
Commercial Bank

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