DTAA BETWEEN INDIA & MAURITIUS

Agreement For Avoidance Of Double Taxation And Prevention Of Fiscal Evasion With Mauritius.

Whereas the annexed Convention between the Government of the Republic of India and the Government of Mauritius for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and capital gains and for the encouragement of mutual trade and investment has come into force on the notification by both the Contracting States to each other on completion of the procedures required by their respective laws, as required by Article 28 of the said Convention ;

Now, therefore, in exercise of the powers conferred by section 90 of the Income-tax Act, 1961 (43 of 1961) and section 24A of the Companies (Profits) Surtax Act, 1964 (7 of 1964), the Central Government hereby directs that all the provisions of the said Convention, shall be given effect to in the Union of India.

Notification : GSR No. 920(E), dated 6-12-1983.

TEXT OF ANNEXED CONVENTION, DATED 24-8-1982

The Government of the Republic of India and the Government of Mauritius, desiring to conclude a Convention for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and capital gains and for the encouragement of mutual trade and investment: have agreed as follows :

CHAPTER I - SCOPE OF THE CONVENTION

ARTICLE 1 - Personal scope - This Convention shall apply to persons who are residents of one or both of the Contracting States.

ARTICLE 2 - Taxes covered - 1. The existing taxes to which this Convention shall apply are :

(a)  in the case of India,—

(i)  the income-tax including any surcharge thereon imposed under the Income-tax Act, 1961 (43 of 1961) ;

(ii)  the surtax imposed under the Companies (Profits) Surtax Act, 1964 (7 of 1964) ;  (hereinafter referred to as “Indian tax”) ;

(b)  in the case of Mauritius, the income-tax (hereinafter referred to as “Mauritius tax”).

2. This Convention shall also apply to any identical or substantially similar taxes which are imposed by either Contracting State after the date of signature of the present Convention in addition to, or in place of, the existing taxes referred to in paragraph (1) of this article.

3. The competent authorities of the Contracting States shall notify to each other any significant changes which are made in their respective taxation laws.

 

CHAPTER II – DEFINITIONS

ARTICLE 3 - General definitions - 1. For the purposes of this Convention, unless the context otherwise requires:

(a) the term “India” means the territory of India and includes the territorial sea and air space above it as well as any other maritime zone referred to in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (Act No. 80 of 1976), in which India has certain rights and to the extent that these rights can be exercised therein as if such maritime zone is a part of the territory of India

(b) the term “Mauritius” means all the territories, including all the islands, which in accordance with the laws of Mauritius, constitute the State of Mauritius and includes,

(i) the territorial sea of Mauritius ; and

(ii) any area outside the territorial sea of Mauritius which in accordance with international law has been or may hereafter be designated, under the laws of Mauritius concerning the Continential Shelf, as an area within which the rights of Mauritius with respect to the sea bed and sub-soil and their natural resources may be exercised ;

(c) the terms “a Contracting State” and “the other Contracting State” mean India or Mauritius as the context requires ;

(d) the term “tax” means Indian tax or Mauritius tax as the context requires, but shall not include any amount which is payable in respect of any default or omission in relation to the taxes to which this Convention applies or which represents a penalty imposed relating to those taxes ;

(e) the term “person” includes an individual, a company and any other entity, corporate or non-corporate, which is treated as a taxable unit under the taxation laws in force in the respective Contracting States ;

(f) the term “company” means any body corporate or any entity which is treated as a company or a body corporate under the taxation laws in force in the respective Contracting States ;

(g) the terms “enterprise of a Contracting State” and “enterprise of the other Contracting State” mean respectively an industrial, mining, commercial, plantation or agricultural enterprise or similar undertaking carried on by a resident of a Contracting State and an industrial, mining, commercial, plantation or agricultural enterprise or similar undertaking carried on by a resident of the other Contracting State ;

(h) the term “competent authority” means in the case of India, the Central Government in the Ministry of Finance (Department of Revenue) or their authorised representative; and in the case of Mauritius, the Commissioner of Income-tax or his authorised representative ;

(i) the term “national” means any individual possessing the nationality of a Contracting State and any local person, partnership or association deriving its status from the laws in force in the Contracting State ;

(j) the term “international traffic” means any transport by a ship or aircraft operated by an enterprise which has its place of effective management in a Contracting State, except when the ship or aircraft is operated by the enterprise solely between places in the other Contracting State.

2. In the application of the provisions of this Convention by a Contracting State, any term not defined therein shall, unless the context otherwise requires, have the meaning which it has under the laws in force of that Contracting State relating to the areas which are the subject of this Convention.

ARTICLE 4 - Residents – 1. For the purposes of this Convention, the term “resident of a Contracting State” means any person who, under the laws of that State, is liable to taxation therein by reason of his domicile, residence, place of management or any other criterion of similar nature. The terms “resident of India” and “resident of Mauritius” shall be construed accordingly.

2. Where by reason of the provisions of paragraph (1), an individual is a resident of both Contracting States, then his residential status for the purposes of the Convention shall be determined in accordance with the following rules :

(a)  he shall be deemed to be a resident of the Contracting State in which he has a permanent home available to him; if he has a permanent home available to him in both Contracting States, he shall be deemed to be a resident of the Contracting State with which his personal and economic relations are closer (hereinafter referred to as his “centre of vital interests”) ;

(b) if the Contracting State in which he has his centre of vital interests cannot be determined, or if he does not have a permanent home available to him in either Contracting State, he shall be deemed to be a resident of the Contracting State in which he has an habitual abode ;

(c) if he has an habitual abode in both Contracting States or in neither of them, he shall be deemed to be a resident of the Contracting State of which he is a national ;

(d) if he is a national of both Contracting States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.

3. Where by reason of the provisions of paragraph (1), a person other than an individual is a resident of both the Contracting States, then it shall be deemed to be a resident of the Contracting State in which its place of effective management is situated.

ARTICLE 5 - Permanent establishment - 1. For the purposes of this Convention, the term “permanent establishment” means a fixed place of business through which the business of the enterprise is wholly or partly carried on.

2. The term “permanent establishment” shall include—

(a) a place of management ;

(b) a branch ;

(c) an office ;

(d) a factory ;

(e) a workshop ;

(f) a warehouse, in relation to a person providing storage facilities for others ;

(g) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources ;

(h) a firm, plantation or other place where agricultural, forestry, plantation or related activities are carried on

(i) a building site or construction or assembly project or supervisory activities in connection therewith, where such site, project or supervisory activity continues for a period of more than nine months.

3. Notwithstanding the preceding provisions of this article, the term “permanent establishment” shall be deemed not to include :

(a) the use of facilities solely for the purpose of storage or display of merchandise belonging to the enterprise

(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage or display ;

(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise ;

(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or for collecting information for the enterprise ;

(e) the maintenance of a fixed place of business solely—

(i) for the purpose of advertising,

(ii) for the supply of information,

(iii) for scientific research, or

(iv) for similar activities, which have a preparatory or auxiliary character for the enterprise.

4. Notwithstanding the provisions of paragraphs (1) and (2) of this article, a person acting in a Contracting State for or on behalf of an enterprise of the other Contracting State [other than an agent of an independent status to whom the provisions of paragraph (5) apply] shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if :

(i) he has and habitually exercises in that first-mentioned State, an authority to conclude contracts in the name of the enterprise, unless his activities are limited to the purchase of goods or merchandise for the enterprise ; or

(ii) he habitually maintains in that first-mentioned State a stock of goods or merchandise belonging to the enterprise from which he regularly fulfils orders on behalf of the enterprise.

5. An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where such persons are acting in the ordinary course of their business. However, when the activities of such an agent are devoted exclusively or almost exclusively on behalf of that enterprise, he will not be considered an agent of an independent status within the meaning of this paragraph.

6. The fact that a company, which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other Contracting State (whether through a permanent establishment or otherwise) shall not, of itself, constitute either company a permanent establishment of the other.

CHAPTER III - TAXATION OF INCOME

ARTICLE 6 - Income from immovable property - 1. Income from immovable property may be taxed in the Contracting State in which such property is situated.

2. The term “immovable property” shall be defined in accordance with the law and usage of the Contracting State in which the property is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, oil-wells, quarries and other places of extraction of natural resources, ships, boats and aircraft shall not be regarded as immovable property.

3. The provisions of paragraph (1) shall apply to income derived from the direct use, letting, or use in any other form of immovable property.

4. The provisions of paragraphs (1) and (3) shall also apply to the income from immovable property of an enterprise and to income from immovable property used for the performance of independent personal services.

ARTICLE 7 - Business profits - 1. The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.

2. Subject to the provisions of paragraph (3) of this article, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment. Where the correct amount of profits attributable to a permanent establishment cannot be readily determined or the determination thereof presents exceptional difficulties, the profits attributable to the permanent establishment may be estimated on a reasonable basis.

3. In determining the profits of a permanent establishment, there shall be allowed as deductions expenses which are incurred for the purposes of the business of the permanent establishment including executive and general administrative expenses so incurred, whether in the State in which the permanent establishment is situated or elsewhere.

4. No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.

5. For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.

6. Where profits include items of income which are dealt with separately in other articles of this Convention, then the provisions of those articles shall not be affected by the provisions of this article.

ARTICLE 8 - Shipping and air transport - 1. Profits from the operation of ships or aircraft in international traffic shall be taxable only in the Contracting State in which the place of effective management of the enterprise is situated.

2. If the place of effective management of a shipping enterprise is aboard a ship, then it shall be deemed to be situated in the Contracting State in which the homeharbour of the ship is situated or, if there is no such home harbour, in the Contracting State of which the operator of the ship is resident.

3. The provisions of paragraph (1) of this article shall also apply to profits from the participation in a pool, a joint business or an international operating agency.

4. For the purposes of paragraph (1), interest on funds connected with the operation of ships or aircraft in international traffic shall be regarded as profits from the operation of such ships or aircraft, and the provisions of Article 11 shall not apply in relation to such interest.

5. The term “operation of ships or aircraft” shall mean business of transportation of persons, mail, livestock or goods, carried on by the owners or lessees or charterers of the ships or aircraft, including the sale of tickets for such transportation on behalf of other enterprises, the incidental lease of ships or aircraft and any other activity directly connected with such transportation.

ARTICLE 9 - Associated enterprises – Where

(a) an enterprise of a Contracting State participates, directly or indirectly, in the management, control or capital of an enterprise of the other Contracting State, or

(b) the same persons participate, directly or indirectly, in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,

(c) and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions have not so accrued, may be included in the profits of that enterprise and taxed accordingly.

ARTICLE 10 - Dividends - 1. Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State.

2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if the recipient is the beneficial owner of the dividends the tax so charged shall not exceed—

(a) five per cent of the gross amount of the dividends if the beneficial owner is a company which holds directly at least 10 per cent of the capital of the company paying the dividends ;

(b)  fifteen per cent of the gross amount of the dividends in all other cases.

This paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.

3. Notwithstanding the provisions of paragraph (2), dividends paid by a company which is a resident of Mauritius to a resident of India may be taxed in Mauritius and according to the laws of Mauritius, as long as dividends paid by companies which are residents of Mauritius are allowed as deductible expenses for determining their taxable profits. However, the tax charged shall not exceed the rate of the Mauritius tax on profit of the company paying the dividends.

4. The term “dividends” as used in this Article means income from shares or other rights, not being debt-claims, participating in profits, as well as income from other corporate rights which is subjected to the same taxation treatment as income from shares by the laws of the Contracting State of which the company making the distribution is a resident.

5. The provisions of paragraphs (1), (2) and (3) shall not apply if the beneficial owner of the dividends, being a resident of the Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein or performs in that other State independent personal services from a fixed base situated therein and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of article 7 or article 14, as the case may be, shall apply.

6. Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State nor subject the company’s undistributed profits to a tax on the company’s undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State.

ARTICLE 11 - Interest - 1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.

2. However, subject to the provisions of paragraphs (3) and (4) of this article, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State.

3. Interest arising in a Contracting State shall be exempt from tax in that State provided it is derived and beneficially owned by :

(a)  the Government or a local authority of the other Contracting State ;

(b) any agency or entity created or organised by the Government of the other Contracting State ; or

(c)  any bank carrying on a bonafide banking business which is a resident of the other Contracting State.

 

4. Interest arising in a Contracting State shall be exempt from tax in that Contracting State to the extent approved by the Government of that State if it is derived and beneficially owned by any person [other than a person referred to in paragraph (3)] who is a resident of the other Contracting State provided that the transaction giving rise to the debt-claim has been approved in this regard by the Government of the first-mentioned Contracting State.

5. The term “interest” as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage, and whether or not carrying a right to participate in the debtor’s profits, and, in particular, income from Government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures. Penalty charges for late payment shall not be regarded as interest for the purpose of this article.

6. The provisions of paragraphs (1), (2), (3) and (4) shall not apply if the recipient of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such case, the provisions of article 7 or article 14, as the case may be, shall apply.

7. Interest shall be deemed to arise in a Contracting State when the payer is that Contracting State itself, a political sub-division, a local authority or a resident of that State. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by that permanent establishment, then such interest shall be deemed to arise in the Contracting State in which the permanent establishment is situated.

8. Where, by reason of a special relationship between the payer and the recipient or between both of them and some other person, the amount of the interest paid, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the recipient in the absence of such relationship, the provisions of this article shall apply only to the last-mentioned amount. In that case, the excess part of the payments shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Convention.

ARTICLE 12 - Royalties - 1. Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.

2. However, such royalties may also be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the royalties.

3. The term “royalties” as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work (including cinematograph films, and films or tapes for radio or television broadcasting), any patent, trade mark, design or model, plan, secret formula or process or for the use of, or the right to use, industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience.

4. The provisions of paragraphs (1) and (2) shall not apply if the recipient of the royalties, being a resident of a Contracting State carries on business in the other Contracting State in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of article 7 or article 14, as the case may be, shall apply.

5. Royalties shall be deemed to arise in a Contracting State when the payer is that Contracting State itself, a political sub-division, a local authority or a resident of that State, where, however, the person paying the royalties whether he is a resident of a Contracting State, or not, has in a Contracting State a permanent establishment in connection with which the liability to pay the royalties was incurred, and such royalties are borne by such permanent establishment, then such royalties shall be deemed to arise in the Contracting State in which the permanent establishment is situated.

6. Where, by reason of a special relationship between the payer and the recipient or between both of them and some other person, the amount of royalties paid, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the recipient in the absence of such relationship, the provisions of this article shall apply only to the last-mentioned amount. In that case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention.

ARTICLE 13 - Capital gains

1. Gains from the alienation of immovable property, as defined in paragraph (2) of article 6, may be taxed in the Contracting State in which such property is situated.

2. Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or of movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or together with the whole enterprise) or of such a fixed base, may be taxed in that other State.

3. Notwithstanding the provisions of paragraph (2) of this article, gains from the alienation of ships and aircraft operated in international traffic and movable property pertaining to the operation of such ships and aircraft, shall be taxable only in the Contracting State in which the place of effective management of the enterprise is situated.

4. Gains derived by a resident of a Contracting State from the alienation of any property other than those mentioned in paragraphs (1), (2) and (3) of this article shall be taxable only in that State.

5. For the purposes of this article, the term “alienation” means the sale, exchange, transfer, or relinquishment of the property or the extinguishment of any rights therein or the compulsory acquisition thereof under any law in force in the respective Contracting States.

ARTICLE 14 - Independent personal services

1. Income derived by a resident of a Contracting State in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has such a fixed base, the income may be taxed in the other Contracting State but only so such of it as is attributable to that fixed base.

2. The term “professional services” includes especially independent scientific, literary, artistic, educational or teaching activities, as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.

ARTICLE 15 - Dependent personal services - 1. Subject to the provisions of articles 16, 17, 18, 19, 20 and 21, salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived there from may be taxed in that other Contracting State.

2. Notwithstanding the provisions of paragraph (1) of this article, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first mentioned State, if—

(a)  the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in the relevant “previous year” or “year of income”, and

(b)  the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State, and

(c)  the remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other State.

3. Notwithstanding the preceding provisions of this article, remuneration in respect of an employment exercised aboard a ship or aircraft in international traffic, may be taxed only in the Contracting State in which the place of effective management of the enterprise is situated.

ARTICLE 16 - Directors’ fees - Directors’ fees and other similar payments derived by a resident of a Contracting State in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other Contracting State.

ARTICLE 17 - Artistes and athletes - 1. Notwithstanding the provisions of articles 14 and 15, income derived by public entertainers such as theatre, motion picture, radio or television artistes and musicians, and by athletes, from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.

2. Where income is derived from personal activities exercised by an entertainer or an athlete in his capacity as such, and accrues not to the entertainer or athlete himself but to another person, that income may, notwithstanding the provisions of articles 7, 14 and 15, be taxed in the State in which the activities of the entertainer or athlete are exercised.

3. Notwithstanding the provisions of paragraph (1) of this article, income derived by an entertainer or an athlete who is a resident of a Contracting State from his personal activities as such exercised in the other Contracting State, shall be taxable only in the first-mentioned Contracting State, if those activities in the other Contracting State, are supported wholly or substantially from the public funds of the first-mentioned Contracting State, including any of its political sub-divisions or local authorities.

4. Notwithstanding the provisions of paragraph (2) of this article and articles 7, 14 and 15, where income is derived from personal activities exercised by an entertainer or an athlete in his capacity as such in a Contracting State and accrues not to the entertainer or athlete himself but to another person, that income shall be taxable only in the Contracting State, if that other person is supported wholly or substantially from the public funds of that other Contracting State, including any of its political sub-divisions or local authorities.

ARTICLE 18 - Governmental functions - 1. Remuneration, other than pension, paid by the Government of a Contracting State, to an individual who is a national of that State in respect of services rendered to that State shall be taxable only in that State.

2. Any pension paid by the Government of a Contracting State to an individual who is a national of that State, shall be taxable only in that Contracting State.

3. The provisions of paragraphs (1) and (2) of this article shall not apply to remuneration and pensions in respect of services rendered in connection with any business carried on by the Government of either of the Contracting States for the purpose of profit.

4. The provisions of paragraph (1) of this article shall likewise apply in respect of remuneration paid under a development assistance programme of a Contracting State, out of funds supplied by that State, to a specialist or volunteer seconded to the other Contracting State with the consent of that other State.

5. For the purposes of this article, the term “Government” shall include any State Government or local or statutory authority of either Contracting State and, in particular, the Reserve Bank of India and the Bank of Mauritius.

 

ARTICLE 19 - Non-Government pensions and annuities - 1. Any pension, other than a pension referred to in article 18, or any annuity derived by a resident of a Contracting State from sources within the other Contracting State shall be taxed only in the first-mentioned Contracting State.

2. The term “pension” means a periodic payment made in consideration of past services or by way of compensation for injuries received in the course of performance of services.

3. The term “annuity” means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time, under an obligation to make the payments in return for adequate and full consideration in money or money’s worth.

ARTICLE 20 - Students and apprentices - 1. A student or business apprentice who is or was a resident of one of the Contracting States immediately before visiting the other Contracting State and who is present in that other Contracting State solely for the purpose of his education or training, shall be exempt from tax in that other Contracting State on—

(a) payments made to him from sources outside that other Contracting State for the purposes of his maintenance, education or training, and

(b) remuneration from employment in that other Contracting State, in an amount not exceeding Rs. 15,000 in Indian currency or its equivalent in Mauritius rupees at the parity rate of exchange during any “previous year” or “year of income”, as the case may be, provided that such employment is directly related to his studies or is undertaken for the purpose of his maintenance.

2. The benefits of this article shall extend only for such period of time as may be reasonable or customarily required to complete the education or training undertaken, but in no event shall any individual have the benefits of this article for more than five consecutive years from the date of his first arrival in that other Contracting State.

ARTICLE 21 - Professors, teachers and research scholars - 1. A professor, teacher and research scholar who is or was a resident of one of the Contracting States immediately before visiting the other Contracting State at the invitation of that other Contracting State or of a university, college, school or other approved institution in that other Contracting State for the purpose of teaching or engaging in research, or both, at the university, college, school or other approved institution, shall be exempt from tax in that other Contracting State on any remuneration for such teaching or research for a period not exceeding two years from the date of his arrival in that other Contracting State.

2. This article shall not apply to income from research if the research is undertaken primarily for the private benefit of a specific person or persons.

3. For the purposes of this article and article 20 an individual shall be deemed to be resident of a Contracting State if he is a resident in that Contracting State in the “previous year” or the “year of income”, as the case may be, in which he visits the other Contracting State or in the immediately preceding “previous year” or the “year of income”.

4. For the purpose of paragraph (1), “approved institution” means an institution which has been approved in this regard by the competent authority of the concerned Contracting State.

ARTICLE 22 - Other income - 1. Subject to the provisions of paragraph (2) of this article, items of income of a resident of a Contracting State, wherever arising, which are not expressly dealt with in the foregoing articles of this Convention, shall be taxable only in that Contracting State.

2. The provisions of paragraph (1) shall not apply to income, other than income from immovable property as defined in paragraph (2) of article 6, if the recipient of such income, being a resident of a Contracting State, carries on business in the other Contracting State through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein and the right or property in respect of which the income is paid is effectively connected with such permanent establishment or fixed base. In such case, the provisions of article 7 or article 14, as the case may be, shall apply.

CHAPTER IV - METHODS FOR ELIMINATION OF DOUBLE TAXATION

ARTICLE 23 - Elimination of double taxation - 1. The laws in force in either of the Contracting States shall continue to govern the taxation of income in the respective Contracting States except where provisions to the contrary are made in this Convention.

2. (a) The amount of Mauritius tax payable, under the laws of Mauritius and in accordance with the provisions of this Convention, whether directly or by deduction, by a resident of India, in respect of profits or income arising in Mauritius, which has been subjected to tax both in India and in Mauritius, shall be allowed as a credit against the Indian tax payable in respect of such profits or income provided that such credit shall not exceed the Indian tax (as computed before allowing any such credit) which is appropriate to the profits or income arising in Mauritius. Further, where such resident is a company by which surtax is payable in India, the credit aforesaid shall be allowed in the first instance against income-tax payable by the company in India and as to the balance, if any, against surtax payable by it in India.

(b) In the case of a dividend paid by a company which is a resident of Mauritius to a company which is a resident of India and which owns at least 10 per cent of the shares of the company paying the dividend, the credit shall take into account [in addition to any Mauritius tax for which credit may be allowed under the provisions of sub-paragraph (a) of this paragraph] the Mauritius tax payable by the company in respect of the profits out of which such dividend is paid.

3. For the purposes of the credit referred to in paragraph (2) the term “Mauritius tax payable” shall be deemed to include any amount which would have been payable as Mauritius tax for any year but for an exemption or reduction of tax granted for that year or any part thereof under :

(i)  sections 33, 34, 34A and 34B of the Mauritius Income-tax Act, 1974 (41 of 1974) ;

(ii) any other provision which may subsequently be made granting an exemption or reduction of tax which the competent authorities of the Contracting States agree to be for the purposes of economic development.

4. (a) The amount of Indian tax payable under the laws of India and in accordance with the provisions of this Convention, whether directly or by deduction, by a resident of Mauritius, in respect of profits or income arising in India, which has been subjected to tax both in India and Mauritius shall be allowed as a credit against Mauritius tax payable in respect of such profits or income provided that such credit shall not exceed the Mauritius tax (as computed before allowing any such credit) is appropriate to the profits or income arising in India.

(b) In the case of a dividend paid by a company which is a resident of India to a company which is a resident of Mauritius and which owns at least 10 per cent of the shares of the company paying the dividend, the credit shall take into account [in addition to any Indian tax for which credit may be allowed under the provisions of sub-paragraph (a) of this paragraph] the Indian tax payable by the company in respect of the profits out of which such dividend is paid.

5. For the purposes of the credit referred to in paragraph (4), the term “Indian tax payable” shall be deemed to include any amount by which tax has been reduced by the special incentive measures under—

(i) section 10(4), 10(4A), 10(6)(viia), 10(15)(iv), 10(28), 10A, 32A, 33A, 35B, 54E, 80HH, 80HHA, 80-I or 80L of the Income-tax Act, 1961 (43 of 1961);

(ii) any other provision which may subsequently be enacted granting a reduction of tax which the competent authorities of the Contracting States agree to be for the purposes of economic development.

6. Where under this Convention a resident of a Contracting State is exempt from tax in that Contracting State in respect of income derived from the other Contracting State, then the first-mentioned Contracting State may, in calculating tax on the remaining income of that person, apply the rate of tax which would have been applicable if the income exempted from tax in accordance with this Convention had not been so exempted.

CHAPTER V - SPECIAL PROVISIONS

ARTICLE 24 - Non-discrimination - 1. The nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances are or may be subjected.

2. The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities in the same circumstances.

3. Nothing contained in this Article shall be construed as obliging a Contracting State to grant persons not resident in that State any personal allowances, relief’s, reductions and deductions for taxation purposes which are by law available only to persons who are so resident.

4. Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of that first-mentioned State are or may be subjected in the same circumstances.

5. In this article, the term “taxation” means taxes which are the subject of this Convention.

ARTICLE 25 - Mutual agreement procedure - 1. Where a resident of a Contracting State considers that the actions of one or both of the Contracting States result or will result for him in taxation not in accordance with this Convention, he may, notwithstanding the remedies provided by the national laws of those States, present his case to the competent authority of the Contracting State of which he is a resident. This case must be presented within three years of the date of receipt of notice of the action which gives rise to taxation not in accordance with the Convention.

2. The competent authority shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with the Convention. Any agreement reached shall be implemented notwithstanding any time limits in the laws of the Contracting States.

3. The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Convention. They may also consult together for the elimination of double taxation in cases not provided for in the Convention.

4. The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs. When it seems advisable in order to reach agreement to have an oral exchange of opinions, such exchange may take place through a Commission consisting of representatives of the competent authorities of the Contracting States.

ARTICLE 26 - Exchange of information or document - 1. The competent authorities of the Contracting States shall exchange such information or document as is necessary for carrying out the provisions of this Convention or for prevention of evasion of taxes which are the subject of this Convention. Any information or document so exchanged shall be treated as secret but may be disclosed to persons (including courts or other authorities) concerned with the assessment, collection, enforcement, investigation or prosecution in respect of the taxes which are the subject of this Convention, or to persons with respect to whom the information or document relates.

2. The exchange of information or documents shall be either on a routine basis or on request with reference to particular cases or both. The competent authorities of the Contracting States shall agree from time to time on the list of the information or documents which shall be furnished on a routine basis.

3. The provisions of paragraph (1) shall not be construed so as to impose on a Contracting State the obligation—

(a) to carry out administrative measures at variance with the laws or administrative practice of that or of the other Contracting State ;

(b)  to supply information or documents which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State ;

(c) to supply information or documents which would disclose any trade, business, industrial, commercial or professional secret or trade process or information the disclosure of which would be contrary to public policy.

ARTICLE 27 - Diplomatic and consular activities - Nothing in this Convention shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special agreements.

CHAPTER VI - FINAL PROVISIONS

ARTICLE 28 - Entry into force - Each of the Contracting State shall notify to the other completion of the procedures required by its law for the bringing into force of this Convention. The Convention shall enter into force on the date of the later of these notifications and shall thereupon have effect—

(a) in India, in respect of income and capital gains assessable for any assessment year commencing on or after 1st April, 1983 ;

(b) in Mauritius, in respect of income and capital gains assessable for any assessment year commencing on or after 1st July, 1983.

ARTICLE 29 - Termination - This Convention shall remain in force indefinitely but either of the Contracting States may, on or before the thirtieth day of June in any calendar year beginning after the expiration of a period of five years from the date of its entry into force, give the other Contracting State through diplomatic channels, written notice of termination and, in such event, this Convention shall cease to have effect—

(a) in India, in respect of income and capital gains assessable for the assessment year commencing on 1st day of April in the second calendar year next following the calendar year in which the notice is given, and subsequent years ;

(b) in auritius, in respect of income and capital gains assessable for the assessment year commencing on 1st day of July in the second calendar year next following the calendar year in which the notice is given, and subsequent years.

In witness whereof the undersigned, being duly authorised thereto, have signed the present Convention.

Done on this 24th day of August, 1982 at Port Louis on two original copies each in Hindi and English languages, both the texts being equally authentic. In case of divergence between the two texts, the English text shall be the operative one.

Clarification regarding agreement for avoidance of double taxation with Mauritius

1. A Convention for the avoidance of double taxation and prevention of fiscal evasion with respect to taxes of income and capital gains was entered into between the Government of India and the Government of Mauritius and was notified on 6-12-1983. In respect of India, the Convention applies from the assessment year 1983-84 and onwards.

2. Article 13 of the Convention deals with taxation of capital gains and it has five paragraphs. The first paragraph gives the right of taxation of capital gains on the alienation of immovable property to the country in which the property is situated. The second and third paragraphs deal with right of taxation of capital gains on the alienation of movable property linked with business or professional enterprises and ships and air crafts.

3. Paragraph 4 deals with taxation of capital gains arising from the alienation of any property other than those mentioned in the preceding paragraphs and gives the right of taxation of capital gains only to that State of which the person deriving the capital gains is a resident. In terms of paragraph 4, capital gains derived by a resident of Mauritius by alienation of shares of companies shall be taxable only in Mauritius according to Mauritius tax law. Therefore, any resident of Mauritius deriving income from alienation of shares of Indian companies will be liable to capital gains tax only in Mauritius as per Mauritius tax law and will not have any capital gains tax liability in India.

4. Paragraph 5 defines ‘alienation’ to mean the sale, exchange, transfer or relinquishment of the property or the extinguishment of any rights in it or its compulsory acquisition under any law in force in India or in Mauritius.

Circular : No. 682, dated 30-3-1994.

JUDICIAL ANALYSIS

See Companies Incorporated in Mauritius, In re [1996] 89 Taxman 125 (AAR - New Delhi)/DLJMB Mauritius Investment Company v. CIT [1997] 94 Taxman 218 (AAR - New Delhi)/Dr. Rajni Kant R. Bhatt v. CIT [1996] 89 Taxman 82 (AAR - New Delhi). 

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UPDATES 

India-Mauritius DTAA Amendment

 

May 20, 2016 : The India-Mauritius treaty has had a chequered destiny and has been the centre of many a storm. The treaty came into being in 1983 and has been a fulcrum for investment flows into India since the economy was opened up to foreign investment in the early 1990s.

Availability of capital gains tax exemption under the IM treaty was first challenged at the dawn of this millennium (in 2001) and the news of the same caused a notable downward spiral in the Sensex. This resulted in the government issuing what is probably the most famous revenue circular in Indian history, Circular 789—assuring investors the benefits of capital gains exemption under the treaty. Circular 789 was ultimately upheld by the Supreme Court in the Azadi Bachao Andolan case after a period of technical debate and controversy and Mauritius continued to be a preferred jurisdiction for investments being made in India.

However, the treaty with the island country has continued to be a subject matter of on-going litigation, resulting in continued and increasing anxiety for the international investor community. It was also a cause of concern for various governments and remained at the centre of multiple controversies and allegations of treaty abuse and round tripping of funds.

Over the years, there has been a shift in point of view of global governments on certain historic tax practices and norms, with the OECD’s Base Erosion and Profit Shifting (BEPS) project, recognising that tax treaties are intended to avoid double tax, and that they should not be used as a basis for double non-taxation (where income ends up not being taxed in either the source country or resident country).

India has been intensively involved in BEPS projects. Action 6-‘Treaty abuse’-recommends that countries make a clear statement that they intend to prevent tax avoidance and especially treaty shopping while entering into a treaty as a minimum standard. India has already introduced General Anti Avoidance Rules (GAAR) in the statute books since 2012. These rules come into effect on April 1, 2017. The finance minister, Arun Jaitley, in his Budget FY 17 speech, re-iterated India’s commitment to implement GAAR with effect from April 1, 2017.

Thus, while entering into the IM treaty in 1982, promoting commercial trade may have largely influenced the bargaining process of granting capital gain exemption in India to investment structures set-up in Mauritius; today, eliminating the double non taxation has become the primary focus of the government.

As a culmination of close to several years of efforts towards the re-negotiation of the treaty, the present government announced the signing of a protocol effectively withdrawing the most significant benefit enjoyed by the investor community, the exemption of capital gains on shares in Indian companies. Soon after the press release of the Indian government, the text of the protocol was released by the Mauritius government into the public domain.

A review of the same indicates that the debate on whether treaty shopping is tax planning or tax avoidance, has now largely been obviated in the context of share investment from Mauritius since after re-negotiation, India gets taxing rights on capital gain income arising on shares of an Indian company acquired on or after April 1, 2017. 

The government while withdrawing the exemption has approached the same in a responsible and mature fashion.

Share investments made up to March 31, 2017, are fully grandfathered under the amended treaty. This is of special import given the government’s stated intention in the 2015 Budget of grandfathering all investments up to March 31, 2017, from the application of GAAR as well.

Additionally, a 50% concession to domestic income-tax rate has been granted up to March 31, 2019, before investors equip themselves under a taxable treaty era. However, this concession would be subject to motive and bona fide business test, i.e., limitation of benefits (LOB) rule which is largely similar to the one presently under India Singapore tax treaty (IS treaty).

Capital gain income on other investments such as units, debt securities, derivatives, etc. still appear to enjoy the exempt treaty regime without any requirement to satisfy LOB, though susceptible to GAAR once effective. It is worth noting that India has similar capital gains taxation provisions with a multitude of countries including Japan, Ireland, Luxembourg, Switzerland, etc and indeed even in its treaty with Singapore (prior to its amendment in line with the Mauritius treaty, granting full capital gains exemption to Singapore tax residents).

Simultaneously, a reduced rate of tax of 7.5% has been introduced on new debt claims on or after April 1, 2017, for all investors, including banks. Viewed solely from a tax perspective, this makes Mauritius a very attractive jurisdiction for debt investments into India (historically, this has not been the case as interest income was taxed at domestic tax rates for investors/lenders other than Mauritius banks). Apart from Mauritius, Singapore is another jurisdiction which has been a large investor of capital into India. The capital gain exemption under the IS treaty is currently dependent on the exemption under the IM treaty. Thus, the potential domino effect of the withdrawal of capital gains exemption in the IM treaty is a similar withdrawal of the same in the context of the Singapore treaty, however, without the temperance negotiated in the context of the Mauritius treaty, i.e., the grandfathering and transitional period provisions.

Recent announcements suggest that the government is in the process of renegotiating the IS treaty as well. It would be interesting to see whether the amendments would be on a par with Mauritius or not.

Assuming that both the treaties are amended to be on a par, effective April 1, 2019, the tax cost of the investors investing in India would increase. The government has said that it is desirous that investors come to India on the basis of the returns investment in the country provides, not on account of tax considerations. In a sense, it is attempting to remove tax arbitrages and create a uniform playing field for investors investing capital in India.

Time will tell whether the fears of factions predicting the reduction of foreign investment in India on account of the increased tax cost after April 1, 2017/2019, hold true or it encourages the inflow as a result of a more stable and transparent tax regime in the long run. India’s pace of growth and development would definitely influence the latter scenario. 

 

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Mauritius To Check Round Tripping

August 19, 2015 : New Delhi / Port Louis: As a revision to the Indo-Mauritius tax treaty hangs in balance, the financial sector watchdog of the island nation has said its fresh conditions for grant of tax residency certificates will help address India's concerns on suspected round tripping of funds. Asserting that it has stringent measures to curb any round-tripping of funds to and from India, the FSC also said that Mauritius has responded to "all requests" from Indian counterparts and nothing is pending at its end.

Against the backdrop of persisting concerns over illicit fund flows, the proposed revisions to India-Mauritius tax treaty have been hanging fire for a long time despite several rounds of bilateral discussions. As part of efforts to make the processes more smooth for overseas entities that would help bolster its financial sector, Mauritius has modified the requirements in the application form for Tax Residency Certificate (TRC).

"The additional substance requirements have been introduced not only to address the concerns of India but also to create more economic activity in Mauritius, in line with the government policy," an Financial Services Commission spokesperson informed. Noting that licence would not be granted to an entity that does not have substance in Mauritius, FSC said it has a stringent licensing framework and a robust surveillance and on-going monitoring framework that prevents round tripping. "The new TRC application process will ensure smooth submission of TRC applications, processing, recommendations and notifications," FSC said. According to the regulator, the changes have been done in line with the government's policy to further develop the island nation's financial services sector.

Mauritius is a major source of foreign investments coming into India. Investments from entities based in the island nation to India totaled $87.55 billion during the period from April 2000 till May 2015. "The government has introduced additional substance requirements to be met by Category 1 Global Business Companies," FSC said. This is in addition to the existing requirements that need to be fulfilled before FSC grants license. Entities, including those seeking renewal, have to use the amended TRC application form, introduced with effect from August 3. The FSC also said that Mauritius has been very prompt in responding to information request from Indian authorities. "Records show that Mauritius has replied to all requests for information from Indian counterparts, and no instances of not replying to Indian counterparts have ever been reported to the FSC Mauritius," the watchdog said.

Noting that there are several measures in place to respond favorably to requests and assistance related to tax matters, FSC said, there are also "stringent 'Indian' conditions to prevent round-tripping". An official from the Indian revenue department is also based in the island nation. Besides, Mauritius last year decided to provide automatic exchange of tax-related information with India.

According to FSC, the decision was to "give greater credence to the island economy's assertions that it has sound systems and processes in place to prevent misuse of its low-tax regulations by investors seeking to by-pass economic substance requirements". Mauritius has efficient exchange of information mechanisms and 42 Double Taxation Avoidance Agreements (DTAAs) with other countries including India while seven Tax Information Exchange Agreements are in force. Noting that it is a signatory to the IOSCO MMoU (Multilateral Memorandum of Understanding), FSC said Mauritius has always shared information with its Indian counterparts, either under information exchange agreements or voluntarily.

IOSCO (International Organisation of Securities Commissions) is a grouping of capital market regulators. FSC Mauritius has a Memorandum of Understanding (MoU) with capital market watchdog Sebi since 2002. "Mauritius has always been proactive and remains very committed to furthering transparency and substance in its financial centre," FSC said. 
 

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 Mauritius Committed To Prevent Round-Tripping

November 11, 2013, New Delhi: Mauritius remains committed to prevent round-tripping a form of money-laundering and ensure that only companies meeting a certain amount of commercial “substance” are able to benefit from the double taxation avoidance agreement (DTAA) between India and the island nation, according to Marc Hein, chairman of the Financial Services Commission (FSC), which regulates non-banking financial services in Mauritius.

Mauritius, long criticized as a tax haven, recently laid down rules for global business companies that require them to create a tangible business structure—not just a company on paper—to claim benefits under DTAA.

Companies now have to adhere to stricter regulation to help authorities determine if the management and control of a firm is in Mauritius. The new rules also listed minimum expenditure and asset requirements for companies and regulations around directors. In an email interview, Hein expressed the hope that these changes will bring about a “win-win situation” for India and Mauritius while ensuring that more jobs are created locally and more money is spent by companies in Mauritius. Edited excerpts:

Why has FSC decided to tighten regulations for companies that operate from Mauritius?

The FSC as the regulator for non-banking financial services and global business is strongly committed to the sustained development of Mauritius as a sound and competitive financial services centre. The amendments brought to section 3 of chapter 4 of the Guide to Global Business is to further implement the government policy of encouraging “substance” in Mauritius by global business companies. However, it is to be noted that these new guidelines are also prescribed to formalize existing practices so as to create a level playing field in the industry.

Can you explain the rationale behind the rules that have been introduced, governing management and control of companies, directors in these companies and the composition of the companies?

We want the people of Mauritius to benefit more from global business companies based here by creating jobs, renting offices, spending more money locally and, hence, further establish themselves as truly resident. We also welcome such companies to list on the Stock Exchange of Mauritius and encourage them to settle their disputes locally within the Mauritius International Arbitration Centre.

Do you think these steps will address the concerns raised by the Indian government around the misuse of the double taxation treaty between India and Mauritius?

I do not agree that there is a misuse of the treaty. These new guidelines are in line with a series of other initiatives to bring substantive business in Mauritius. I strongly believe we have addressed and keep addressing the concerns of the Indian government. We want the Mauritius International Financial Centre to be a true partner of India—in terms of Indian inbound as well as outbound investments.

Will it curb round-tripping and prevent companies that do not have a genuine presence in Mauritius from availing the benefits under the India-Mauritius DTAA?

We have repeated on many occasions that we will clamp down on round-tripping whenever it is reported to us or whenever it is detected by us. It also depends what you style as “genuine presence”. Only those companies which are tax residents will have access to the treaty.

These measures have also been undertaken further to the commitments of our government that Mauritius will issue tax residence certificates upon compliance with enhanced commercial substance.

Therefore, these measures refer to the implementation of government policy of encouraging substance in Mauritius by global business companies.

What has been the response of the Indian government? Have you shared the changes in regulations with the Indian tax authorities?

The Indian government communicates with our ministry of finance, and both parties meet at the level of the joint working group. I do believe we will end up with a win-win situation, (rather) than a lose-lose situation detrimental to both countries.

Is FSC looking at any more changes to ensure that only genuine Mauritius-based companies get the benefits under DTAA?

Some of the changes recently introduced are far-reaching and we wait to see how they work in practice. In this uncertain business climate, a better financial regulation remains a pivotal aspect of making the financial sector safer and more stable.

The FSC strongly believes that there are several good reasons why investors use Mauritius as a jurisdiction of choice within the African continent. One major factor is that Mauritius has the three factors that investors look for before making investments in any particular jurisdiction, and they are: stability (financial, legal, regulatory and political), certainty and transparency.

What I mean is that companies using Mauritius to invest in India do not do so only because there is a DTAA. They do so because Mauritius is today a respectable international financial centre. Do you foresee any negative impact of these changes on foreign investment routed through Mauritius?

We do not foresee any negative impact. We are, in fact, consolidating our financial services sector. We are doing more to ascertain that companies using our jurisdiction are more closely associated to our economy.

How are the talks on amendments to the India-Mauritius DTAA progressing? This issue is being currently handled at high levels of both governments and will continue at the next meeting of the joint working group, hopefully to reach a consensus.

 

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 India, Mauritius & Cyprus Reviewing Tax Treaty

 

January 10th, 2014, Indian government  is reviewing  its DTAA with Mauritiusand Cyprus to avoid a possible tax revenue leakage.  These are so called tax havens which have channelised substantial FDI inflow into India. Almost 45% of the total FDI of about 10 billion was routed through these two countries alone in the year 2013. One of the main reasons for the significant inflows from these small island nations is the favorable tax DTAAs they have with India.  Only three countries Mauritius, Cyprus and Singapore  have DTAAs whereIndia is not granted the right to levy a capital gains tax.  This is significant, as those three countries do not have a capital gains tax, meaning that investors can route their investments through one of the islands into India in a tax-efficient manner. Holding companies in these tax havens can be used to repatriate profits from India through share buybacks. To counter this,Singapore’s DTAA contains a limitation of benefit clause, which aims to prevent treaty shopping by drawing a line between genuine investors and mere holding companies by requiring businesses to meet certain conditions relating to residency and spending before they can avail themselves of the treaty’s benefits. Unlike Singapore, however, the Mauritius and Cyprus DTAAs do not yet contain a LoB clause. In a bid to move away from its reputation as an offshore tax haven and to establish itself as a global financial center in its own right, Mauritius has recently agreed to include an LoB clause in its DTAA.

India is also reviewing terms of the India-Cyprus tax treaty after India blacklisted Cyprus as a “non-cooperating” nation under section 94A of its Income-Tax Act.  It is confirmed that Article 26 of the OECD Model Tax Convention will be inserted to govern the bilateral exchange of information in the revised treaty. The blacklisting notification was issued after Cyprus failed to deliver information on bank account holders that India claimed it was obliged to provide under the DTAA and triggered a number of penal provisions including a mandatory 30 percent withholding tax on all transactions from India to Cyprus. India has set up an Income Tax Overseas Unit in Cyprus (along with seven other countries: France, Germany, the Netherlands, Japan, UAE, UK and USA) as part of its strategy to collect bank account information.  India also has ITOUs in Singapore and Mauritius.

 

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Amended India-Mauritius Tax Treaty

 

India signed the protocol amending the Double Taxation Avoidance Agreement (DTAA) with Mauritius. While the protocol gives India the right to tax capital gains arising from sale or transfer of shares of an Indian company acquired by a Mauritian tax resident, it proposes to exempt investments made until March 31, 2017, from such taxation. The government also said that shares acquired between April 1, 2017 and March 31, 2019 will attract capital gains tax at a 50% discount on the domestic tax rate — i.e., at 7.5% for listed equities and 20% for unlisted ones. The full tax impact of the protocol will fall on investments beginning April 1, 2019, when capital gains will attract tax at the full domestic rates of 15% and 40%. 

 

The DTAA was a major reason for a large number of foreign portfolio investors (FPI) and foreign entities to route their investments in India through Mauritius. Between April 2000 and December 2015, Mauritius accounted for $ 93.66 billion — or 33.7% — of the total foreign direct investment of $ 278 billion. The imposition of capital gains tax on the acquisition of shares of Indian companies after March 31, 2017 could, however, result in a slowing of the flow of investments.

Why has the treaty been amended?

It is a move in line with the government’s initiatives to curb black money in the system, money laundering and tax avoidance. The Finance Ministry statement said the protocol would tackle issues of treaty abuse and round-tripping of funds attributed to the India-Mauritius treaty, curb revenue loss, prevent double non-taxation, streamline the flow of investment, and stimulate the flow of exchange of information between India and Mauritius. It is also expected to discourage speculators and non-serious investors, and thereby reduce volatility in the market.

What will be the impact on investments routed through Singapore?

While Mauritius has traditionally accounted for almost a third of the total FDI inflow into India, Singapore has emerged as a preferred destination over the last few years. In fact, for the 9-month period from April 2015, FDI inflows through Singapore were $ 10.98 billion, significantly higher than the $ 6.1 billion that came through Mauritius. In this situation, the impact of the amendment in the Mauritius DTAA on the Singapore DTAA becomes critical — and it is expected that the amended tax regime for Mauritius will be applicable to capital gains for Singapore tax residents too. In a Twitter post on Tuesday, Revenue Secretary Hasmukh Adhia said, “Capital gains on shares for Singapore can also now become source based due to direct linkage of Singapore DTAA Clause with Mauritius DTAA.”

So, will investments through Singapore also get the grandfathering provision?

Article 6 of the protocol dated July 18, 2005 to the Singapore Tax Treaty says that the capital gains exemption under the Singapore Tax Treaty would remain in force only till the time Mauritius Tax Treaty provides for capital gains exemption on alienation of shares. Therefore, the benefits accorded under the Singapore Tax Treaty would fall away, unless amended. On Wednesday, Adhia said, “Now that Mauritius treaty stands revised, accordingly the Singapore treaty will also have to be revised. We will have to talk to the Singapore government and get it revised.”

While it is expected that benefits of the Singapore treaty would also be available until March 31, 2017, experts hope the government would provide a level playing field for investments, and avoid arbitrage between jurisdictions. The grandfathering provisions should, therefore, be built into the Singapore Tax Treaty as well.

Will the treaty impact P-Notes?

While there have been concerns in the market that imposition of capital gains tax will deter investments through Participatory Notes or P-notes, Adhia on Wednesday said that there would be no change for P-notes as of now. “P-notes is a separate decision, it is not linked to the treaty. There is no change in decision with regard to taxation of P-notes because of signing of the Mauritius treaty,” he said. P-Notes are instruments issued by registered foreign institutional investors to overseas investors. While the FPIs are registered with the Securities and Exchange Board of India (SEBI), the overseas investors investing in P-Notes are not registered with the market regulator, and thus their identity is not known to the authorities. SEBI’s proposal to impose curb on P-notes on September 16, 2007, resulted in a sharp correction in the markets the following day, and forced the government to issue a clarification. Over the years, however, the share of P-notes in the total FPI investment has come down from around 50% in 2007 to 10% now.

Will foreign investments as a whole witness a decline as a result of the move?

Since investments until March 31, 2017 have been exempted from capital gains tax, there is no risk of an immediate outflow of funds. However, the protocol will impact all prospective investments with effect from April 1, 2017. Also, the benefit of the two-year transition period will be limited to companies that are not regarded as a shell/conduit company, and their total expenditure on operations in Mauritius has been at least Rs 27 lakh in the preceding 12 months. Experts feel that while some investors who are bullish on India may advance their plans and invest before April 1, 2017 in order to save tax, many others will raise their due diligence procedure on investments, factoring in the tax cost in the returns they generate.

Is any country likely to benefit as a result of the amendment?

Experts say the Netherlands may emerge as an alternative. “I think that Netherlands may emerge as an attractive destination for FPIs following the changes to the Mauritius treaty. The India-Netherlands treaty is a smart treaty, and it can emerge as a preferred alternative for FIIs especially those in Europe. The treaty provides that if a company based in Netherlands holds less than 10% equity in an Indian entity, it would not attract capital gains on the sale of those shares to residents or non-residents. Even if it were to own more than 10% equity in an Indian company, the treaty allows it to 
sell the shares to a non-resident without attracting tax,” said Daksha Baxi, executive director of Khaitan &  Co.

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