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DTAA Between India & Finland

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Agreement For Avoidance Of Double Taxation And Prevention Of Fiscal Evasion With Finland

NOTIFICATION NO. 36/2010 [F. NO. 501/13/1980-FTD-I], DATED 20-5-2010

WHEREAS, an Agreement and the Protocol between the Government of Republic of India and the Government of the Republic of Finland for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income was signed at New Delhi on the 15th day of January, 2010;

AND, WHEREAS, the date of entry into force of the said Agreement is the 19th day of April, 2010, being thirty days after the date of later of the notifications of completion of the procedures as required by the respective laws for entry into force of the said Agreement, in accordance with paragraph 2 of Article 29 of the said Agreement;

AND, WHEREAS, sub-paragraph (b) of paragraph 2 of Article 29 of the said Agreement provides that the provisions of the said Agreement shall have effect in India in respect of the taxes withheld at source, for amounts paid or credited on or after 1st April of the calendar year next following the year in which the Agreement enters into force; and in respect of taxes on income, for any fiscal year beginning on or after 1st April of the calendar year next following the year in which the Agreement enters into force;

NOW, THEREFORE, in exercise of the powers conferred by section 90 of the Income-tax Act, 1961 (43 of 1961), the Central Government hereby directs that all the provisions of the said Agreement and the Protocol, as set out in the Annexure hereto, shall be given effect to in the Union of India with effect from 1st day of April, 2011.

ANNEXURE

AGREEMENT BETWEEN THE REPUBLIC OF INDIA AND THE REPUBLIC OF FINLAND FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME

The Government of the Republic of Finland and the Government of the Republic of India,

Desiring to conclude an Agreement for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and with a view to promoting economic co-operation between the two countries,
Have agreed as follows :

Article 1 : PERSONS COVERED - This Agreement shall apply to persons who are residents of one or both of the Contracting States.

Article 2 : TAXES COVERED - 1. This Agreement shall apply to taxes on income imposed on behalf of a Contracting State or of its political sub-divisions or local authorities, irrespective of the manner in which they are levied.

2. There shall be regarded as taxes on income all taxes imposed on total income or on elements of income, including taxes on gains from the alienation of movable or immovable property and taxes on the total amounts of wages or salaries paid by enterprises.

3. The existing taxes to which the Agreement shall apply are :—

(a)   in Finland :

(i)   the State Income-taxes (valtion tuloverot; de statliga inkomstskatterna);

(ii)   the corporate Income-tax (yhietsöjen tulovero; inkomstskatten for samfund);

(iii)   the communal tax (kunnallisvero; kommunalskatten);

(iv)   the church tax (kirkollisvero; kyrkoskatten);

(v)   the tax withheld at source from interest (korkotulon lihdevero; källskatten pâ ranteinkomst); and

(vi)   the tax withheld at source from non-residents’ income (rajoitetusti verovelvollisen lahdevero; kallskatten for begransat skattskyldig); (hereinafter referred to as “Finnish tax”);

(b)   in India, the income-tax, including any surcharge thereon; (herein-after referred to as “Indian tax”)

4. The Agreement shall apply also to any identical or substantially similar taxes that are imposed after the date of signature of the Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any significant changes that have been made in their respective taxation laws.


Article 3 : GENERAL DEFINITIONS - 1. For the purposes of this Agreement, unless the context otherwise requires :

(a)   the term “Finland” means the Republic of Finland and, when used in a geographical sense, means the territory of the Republic of Finland, and any area adjacent to the territorial waters of the Republic of Finland within which, under the laws of Finland and in accordance with international law, the rights of Finland with respect to the exploration for and exploitation of the natural resources of the sea bed and its sub-soil and of the superjacent waters may be exercised;

(b)   the term “India” means the territory of India and includes the territorial sea and airspace above it, as well as any other maritime zone in which India has sovereign rights, other rights and jurisdiction, according to the Indian law and in accordance with international law, including the U.N. Convention on the Law of the Sea;

(c)   the term “person” includes an individual, a company, a body of persons and any other entity which is treated as a taxable unit under the taxation laws in force in the respective Contracting States;

(d)   the term “company” means any body corporate or any entity that is treated as a body corporate for tax purposes;

(e)   the term “a Contracting State” and “the other Contracting State” mean the Republic of Finland and the Republic of India as the context requires;

(f)   the terms “enterprise of a Contracting State” and “enterprise of the other Contracting State” mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;

(g)   the term “national”, in relation to a Contracting State, means :—

(i)   any individual possessing the nationality of that Contracting State; and

(ii)   any legal person, partnership or association deriving its status as such from the laws in force in that Contracting State;

(h)   the term “international traffic” means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State;

(i)   the term “competent authority” means :—

(i)   in Finland, the Ministry of Finance, its authorised representative or the authority which, by the Ministry of Finance, is designated as competent authority;

(ii)   in India, the Finance Minister, Government of India, or his authorised representative;

(j)   the term “tax” means Finnish or Indian 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 Agreement applies or which represents a penalty or fine imposed relating to those taxes;

(k)   the term “fiscal year” means :—

(i)   in Finland, the “tax year” as defined in the taxation laws of Finland relating to income-tax;

(ii)   In India, the financial year beginning on the 1st day of April.

2. As regards the application of the Agreement at any time by a Contracting State any term not defined therein shall, unless the context otherwise requires, have the meaning that it has at that time under the law of that State for the purposes of the taxes to which the Agreement applies, any meaning under the applicable tax laws of that State prevailing over a meaning given to the term under other laws of that State.

Article 4 : RESIDENCE - 1. For the purposes of this Agreement, the term “resident of a Contracting State” means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management, place of incorporation (registration) or any other criterion of a similar nature, and also includes that State and any political sub-division, statutory body or local authority thereof. This term, however, does not include any person who is liable to tax in that State in respect only of income from sources in that State.

2. Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then his status shall be determined as follows :

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

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

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

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

3. Where by reason of the provisions of paragraph 1 of this Article, a person other than an individual is a resident of both Contracting States, the competent authorities of the Contracting States shall determine by mutual agreement the State of which the person shall be deemed to be a resident for the purposes of this Agreement having regard to the person’s place of incorporation, the place of effective management and any other relevant factors.

Article 5 : PERMANENT ESTABLISHMENT - 1. For the purposes of this Agreement, the term “permanent establishment” means a fixed place of business through which the business of an enterprise is wholly or partly carried on.

2. The term “permanent establishment” includes especially :—

(a)   a place of management;

(b)   a branch;

(c)   an office;

(d)   a factory;

(e)   a workshop;

(f)   a sales outlet;

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

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

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

3. The term ‘permanent establishment’ likewise encompasses :—

(a)   A building site or construction, installation or assembly project or supervisory activities in connection therewith only if such site, project or activities last more than six months.

(b)   The furnishing of services, including consultancy services, by an enterprise through employees or other personnel engaged by the enterprise for such purpose, but only where activities of that nature continue (for the same or connected project) within the country for a period or periods aggregating more than 183 days within any 12-month period.

4. 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 goods or 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 of collecting information, for the enterprise;

(e)   the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character;

(f)   the maintenance of a fixed place of business solely for any combination of activities mentioned in sub-paragraphs (a) to (e), provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character.


5. Notwithstanding the provisions of paragraphs 1 and 2, where a person - other than an agent of an independent status to whom paragraph 7 applies - is acting in a Contracting State on behalf of an enterprise of the other Contracting State, that enterprise shall be deemed to have a permanent establishment in the first-mentioned Contracting State in respect of any activities which that person undertakes for the enterprise, if such a person :—

(a)   has and habitually exercises in that State an authority to conclude contracts in the name of the enterprise, unless the activities of such person are limited to those mentioned in paragraph 4 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph; or

(b)   has no such authority, but habitually maintains in the first-mentioned State a stock of goods or merchandise from which he regularly delivers goods or merchandise on behalf of the enterprise;

(c)   habitually secures orders in the first-mentioned State, wholly or almost wholly for the enterprise itself.

6. Notwithstanding the preceding provisions of this Article, an insurance enterprise of a Contracting State shall, except in regard to re-insurance, be deemed to have a permanent establishment in the other Contracting State if it collects premiums in the territory of that other State or insures risks situated therein through a person other than an agent of an independent status to whom paragraph 7 applies.

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

8. 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 State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.

Article 6 : INCOME FROM IMMOVABLE PROPERTY - 1. Income derived by a resident of a Contracting State from immovable property (including income from agriculture or forestry) situated in the other Contracting State may be taxed in that other State.

2. The term “immovable property” shall have the meaning which it has under the law of the Contracting State in which the property in question 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, sources and other 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. Where the ownership of shares or other corporate rights in a company entitles the owner of such shares or corporate rights to the enjoyment of immovable property held by the company, the income from the direct use, letting, or use in any other form of such right to enjoyment may be taxed in the Contracting State in which the immovable property is situated.

5. 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, 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.

3. In determining the profits of a permanent establishment, there shall be allowed as deductions expenses which are incurred for the purposes 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, in accordance with the provisions of and subject to the limitations of the tax laws of that State. However, no such deduction shall be allowed in respect of amounts, if any, paid (otherwise than towards reimbursement of actual expenses) by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents, know-how or other rights, or by way of commission or other charges for specific services performed or for management, or, except in the case of banking enterprises, by way of interest on moneys lent to the permanent establishment. Likewise, no account shall be taken, in the determination of the profits of a permanent establishment, for amounts charged (otherwise than towards reimbursement of actual expenses), by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents, know-how or other rights, or by way of commission or other charges for specific services performed or for management, or, except in the case of a banking enterprise, by way of interest on moneys lent to the head office of the enterprise or any of its other offices.

4. Insofar as it has been customary in a Contracting State to determine the profits to be attributed to a permanent establishment on the basis of an apportionment of the total profits of the enterprise to its various parts, nothing in paragraph 2 shall preclude that Contracting State from determining the profits to be taxed by such an apportionment as may be customary; the method of apportionment adopted shall, however, be such that the result shall be in accordance with the principles contained in this Article.

5. 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.

6. 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.

7. Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.

Article 8 : SHIPPING AND AIR TRANSPORT - 1. Profits of an enterprise of a Contracting State from the operation of ships or aircraft in international traffic shall be taxable only in that State.

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 home harbour 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 a resident.

3. Profits of an enterprise of a Contracting State from the use, maintenance or rental of containers (including trailers, barges and related equipment for the transport of containers) used for the transport of goods or merchandise in international traffic shall be taxable only in that State, except where such containers are used for the transport of goods or merchandise solely between places within the other Contracting State.

4. For the purposes of this Article interest on funds directly connected with the operation of ships or aircraft in international traffic shall be regarded as profits derived from the operation of such ships or aircraft if they are integral to the carrying on of such business, and the provisions of Article 11 shall not apply in relation to such interest.

5. The provisions of paragraphs 1 and 3 shall also apply to profits from the participation in a pool, a joint business or an international operating agency.


Article 9 : ASSOCIATED ENTERPRISES - 1. 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, 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.

2. Where a Contracting State includes in the profits of an enterprise of that State - and taxes accordingly - profits on which an enterprise of the other Contracting State has been charged to tax in that other State and the profits so included are profits which would have accrued to the enterprise of the first-mentioned State if the conditions made between the two enterprises had been those which would have been made between independent enterprises, then that other State shall make an appropriate adjustment to the amount of tax charged therein on those profits, where that other State considers the adjustment justified. In determining such adjustment, due regard shall be had to the other provisions of this Agreement and the competent authorities of the Contracting States shall if necessary consult each other.

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 beneficial owner of the dividends is a resident of the other Contracting State, the tax so charged shall not exceed 10 per cent of the gross amount of the dividends.

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

3. 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 State of which the company making the distribution is a resident.

4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the dividends, being a resident of a 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 case the provisions of Article 7 or Article 14, as the case may be, shall apply.

5. 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, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State, but if the beneficial owner of the interest is a resident of the other Contracting State, the tax so charged shall not exceed 10 per cent of the gross amount of the interest.

3. Notwithstanding the provisions of paragraph 2,

(a)   interest arising in India shall be taxable only in Finland if the interest is paid to :—

(i)   the State of Finland, or a local authority or a statutory body thereof;

(ii)   the Finnish Fund for Industrial Co-operation (FINNFUND), Finnish Export Credit or the FINNVERA, which are wholly or mainly owned by the State of Finland or any other institution, as may be agreed from time to time between the competent authorities of the Contracting States;

(b)   interest arising in Finland shall be taxable only in India if the interest is paid to :—

(i)   the Government of India, or a political sub-division, or a local authority or a statutory body thereof;

(ii)   the Reserve Bank of India, the Export-Import Bank of India or the National Housing Bank, which are wholly or mainly owned by the Government of India or any other institution, as may be agreed from time to time between the competent authorities of the Contracting States;

(c)   interest arising in a Contracting State on a loan guaranteed by any of the bodies mentioned or referred to in sub-paragraph (a) or sub-paragraph (b) and paid to a resident of the other Contracting State shall be taxable only in that other State.

4. 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.

5. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner 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.

6. Interest shall be deemed to arise in a Contracting State when the payer is 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 or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.

7. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest, 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 beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such 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 Agreement.

Article 12 : ROYALTIES AND FEES FOR TECHNICAL SERVICES - 1.Royalties or fees for technical services 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 or fees for technical services may also be taxed in the Contracting State in which they arise and according to the laws of that State, but if the beneficial owner of the royalties is a resident of the other Contracting State, the tax so charged shall not exceed 10 per cent of the gross amount of the royalties or fees for technical services.

3.(a) 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 television or radio 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.

(b) The term “fees for technical services” as used in this Article means payments of any kind, other than those mentioned in Articles 14 and 15 of this Agreement as consideration for managerial or technical or consultancy services, including the provision of services of technical or other personnel.

4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the royalties or fees for technical services, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties or fees for technical services 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 or fees for technical services are 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.

5. Royalties or fees for technical services shall be deemed to arise in a Contracting State when the payer is that State itself, a political sub-division, a local authority, or a resident of that State. Where, however, the right or property for which the royalties are paid is used within a Contracting State or the fees for technical services relate to services performed, within a Contracting State, then such royalties or fees for technical services shall be deemed to arise in the State in which the right or property is used or the services are performed. Where, however, the person paying the royalties or fees for technical services, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the liability to pay the royalties or fees for technical services was incurred, and such royalties or fees for technical services are borne by such permanent establishment or fixed base, then such royalties or fees for technical services shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.

6. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the royalties, 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 beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such 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 Agreement.

Article 13 : CAPITAL GAINS - 1. Gains derived by a resident of a Contracting State from the alienation of immovable property referred to in paragraph 2 of Article 6 and situated in the other Contracting State or shares in a company the assets of which consist mainly of such property may be taxed in that other State.

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 with the whole enterprise) or of such fixed base, may be taxed in that other State.

3. Gains derived by an enterprise of a Contracting State from the alienation of ships or aircraft operated in international traffic or movable property pertaining to the operation of such ships or aircraft, shall be taxable only in that State.

4. Gains derived by an enterprise of a Contracting State from the alienation of containers (including trailers, barges and related equipment for the transport of containers) used for the transport of goods or merchandise shall be taxable only in that State, except where such containers are used for the transport of goods or merchandise solely between places within the other Contracting State.

5. Gains from the alienation of shares other than those mentioned in paragraph 1 in a company which is a resident of a Contracting State may be taxed in that State.

6. Gains from the alienation of any property other than that referred to in the preceding paragraphs of this Article, shall be taxable only in the Contracting State of which the alienator is a resident.


Article 14 : INDEPENDENT PERSONAL SERVICES - 1. Income derived by an individual who is a resident of a Contracting State from the performance of professional services or other independent activities of a similar character shall be taxable only in that State except in the following circumstances when such income may also be taxed in the other Contracting State :—

(a)   if he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities; in that case, only so much of the income as is attributable to that fixed base may be taxed in that other State; or

(b)   if his stay in the other Contracting State is for a period or periods amounting to or exceeding in the aggregate 183 days in any period of 12 months commencing or ending in the fiscal year concerned; in that case, only so much of the income as is derived from his activities performed in that other State may be taxed in that other State.

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, 18, 19, and 20 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 State.

2. Notwithstanding the provisions of paragraph 1, 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 within any twelve-month period commencing or ending in the fiscal year concerned, 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 derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic by an enterprise of a Contracting State, may be taxed in that State.

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 or any other similar organ of a company which is a resident of the other Contracting State may be taxed in that other State.

Article 17 : ARTISTES AND SPORTSPERSONS - 1. Notwithstanding the provisions of Articles 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsperson, from his personal activities as such exercised in the other Contracting State, may be taxed in that other State.

2. Where income in respect of personal activities exercised by an entertainer or a sportsperson in his capacity as such accrues not to the entertainer or sportsperson himself but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer or sportsperson are exercised.

3. The provisions of paragraphs 1 and 2 shall not apply to income derived from activities exercised in a Contracting State by an entertainer or a sportsperson if the visit to that State is wholly or mainly supported by public funds of the other Contracting State or a political sub-division or a local authority thereof. In such case, the income shall be taxable in accordance with the provisions of Article 7 or Article 14 or Article 15, as the case may be.

Article 18 : PENSIONS, ANNUITIES AND SIMILAR PAYMENTS - 1. Subject to the provisions of paragraph 2 of Article 19, pensions and other similar remuneration in consideration of past employment paid to a resident of a Contracting State shall be taxable only in that State.

2. Notwithstanding the provisions of paragraph 1, and subject to the provisions of paragraph 2 of Article 19, pensions paid and other benefits, whether periodic or lump sum compensation, awarded under the social security legislation of a Contracting State or under any public scheme organised by a Contracting State for social welfare purposes, or any annuity arising in a Contracting State, may be taxed in that State.

3. The term “annuity” as used in this Article means a stated sum payable periodically to an individual at stated times during his 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 (other than services rendered).

Article 19 : GOVERNMENT SERVICE - 1. (a) Salaries, wages and other similar remuneration, other than a pension, paid by a Contracting State or a political sub-division, a statutory body or a local authority thereof to an individual in respect of services rendered to that State or sub-division, body or authority shall be taxable only in that State.

(b) However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who :—

(i)   is a national of that State; or

(ii)   did not become a resident of that State solely for the purpose of rendering the services.

2. (a) Any pension paid by, or out of funds created by, a Contracting State or a political sub-division, a statutory body or a local authority thereof to an individual in respect of services rendered to that State or sub-division, body or authority shall be taxable only in that State.

(b) However, such pension shall be taxable only in the other Contracting State if the individual is a resident of, and a national of, that State.

3. The provisions of Articles 15, 16, 17 and 18 shall apply to salaries, wages and other similar remuneration, and to pensions, in respect of services rendered in connection with a business carried on by a Contracting State or a political sub-division, a statutory body or a local authority thereof.


Article 20 : STUDENTS AND TRAINEES - 1. Payments which a student, or an apprentice or business, technical, agricultural or forestry trainee, who is or was immediately before visiting a Contracting State a resident of the other Contracting State and who is present in the first-mentioned State solely for the purpose of his education or training receives for the purpose of his maintenance, education or training shall not be taxed in that State, provided that such payments arise from sources outside that State.

2. A student at a university or other institution for higher education in a Contracting State, or an apprentice or business, technical, agricultural or forestry trainee, who is or was immediately before visiting the other Contracting State a resident of the first-mentioned State and who is present in the other Contracting State for a continuous period not exceeding 183 days, shall not be taxed in that other State in respect of remuneration for services rendered in that State, provided that the services are in connection with his studies or training and the remuneration constitutes earnings necessary for his maintenance.

Article 21 : OTHER INCOME - 1. Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Agreement shall be taxable only in that 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.

3. Notwithstanding the provisions of paragraphs 1 and 2 of this Article, items of income of a resident of a Contracting State not dealt with in the foregoing Articles of this Agreement and arising in the other Contracting State may be taxed in that other State.

Article 22 : ELIMINATION OF DOUBLE TAXATION - 1. Subject to the provisions of Finnish law regarding the elimination of international double taxation (which shall not affect the general principle hereof), double taxation shall be eliminated in Finland as follows :—

(a)   Where a resident of Finland derives income which, in accordance with the provisions of this Agreement, may be taxed in India, Finland shall, subject to the provisions of sub-paragraph (b), allow as a deduction from the Finnish tax of that person, an amount equal to the Indian tax paid under Indian law and in accordance with the Agreement, as computed by reference to the same income by reference to which the Finnish tax is computed.

(b)   Dividends paid by a company being a resident of India to a company which is a resident of Finland and which controls directly at least 10 per cent of the voting power in the company paying the dividends shall be exempt from Finnish tax.

2. In India double taxation shall be eliminated as follows :—
Where a resident of India derives income which, in accordance with the provisions of this Agreement, may be taxed in Finland, India shall allow as a deduction from the tax on the income of that resident, an amount equal to the tax paid in Finland. Such deduction shall not, however, exceed that portion of the tax as computed before the deduction is given, which is attributable, as the case may be, to the income which may be taxed in Finland.

3. Where in accordance with any provision of the Agreement income derived by a resident of a Contracting State is exempt from tax in that Contracting State, that State may nevertheless, in calculating the amount of tax on the remaining income of such person, take into account the exempted income.

Article 23 : NON-DISCRIMINATION - 1. 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, in particular with respect to residence, are or may be subjected. This provision shall, notwithstanding the provisions of Article 1, also apply to persons who are not residents of one or both of the Contracting States.

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. This provision shall not be construed as obliging a Contracting State to grant to residents of the other Contracting State any personal allowances, relief’s and reductions for taxation purposes on account of civil status or family responsibilities which it grants to its own residents. This provision shall not be construed as preventing a Contracting State from charging the profits of a permanent establishment which a company of the other Contracting State has in the first-mentioned State at a rate of tax which ts higher than that imposed on the profits of a similar company of the first-mentioned Contracting State, nor as being in conflict with the provisions of paragraph 3 of Article 7.

3. Except where the provisions of paragraph 1 of Article 9, paragraph 7 of Article 11, or paragraph 6 of Article 12, apply, interest, royalties and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable profits of such enterprise, be deductible under the same conditions as if they had been paid to a resident of the first-mentioned State.

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 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 the first-mentioned State are or may be subjected.
5. The provisions of this Article shall, notwithstanding the provisions of Article 2, apply to taxes of every kind and description.

Article 24 : MUTUAL AGREEMENT PROCEDURE - 1. Where a person considers that the actions of one or both of the Contracting States result or will result for him in taxation not in accordance with the provisions of this Agreement, he may, irrespective of the remedies provided by the domestic law of those States, present his case to the competent authority of the Contracting State of which he is a resident or, if his case comes under paragraph 1 of Article 23, to that of the Contracting State of which he is a national. The case must be presented within three years from the first notification of the action resulting in taxation not in accordance with the provisions of the Agreement.
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 a satisfactory 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 which is not in accordance with the Agreement. Any agreement reached shall be implemented notwithstanding any time limits in the domestic law 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 Agreement. They may also consult together for the elimination of double taxation in cases not provided for in the Agreement.

4. The competent authorities of the Contracting States may communicate with each other directly, including through a joint commission consisting of themselves or their representatives, for the purpose of reaching an agreement in the sense of the preceding paragraphs.

Article 25 : EXCHANGE OF INFORMATION - 1. The competent authorities of the Contracting States shall exchange such information (including documents or certified copies of the documents) as is foreseeable relevant for carrying out the provisions of this Agreement or of the domestic laws concerning taxes of every kind and description imposed on behalf of the Contracting States, or of their political sub-divisions or of their local authorities, insofar as the taxation there under is not contrary to the Agreement. The exchange of information is not restricted by Articles 1 and 2.

2. Any information received under paragraph 1 by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic law of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, the determination of appeals in relation to, the taxes referred to in paragraph 1, or the oversight of the above. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.

3. In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting State the obligation :—

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

(b)   to supply information which is not obtainable by the competent authority under the law or in the normal course of the administration of that or of the other Contracting State;

(c)   to supply information 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 (order public).

4. If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall use its information gathering measures to obtain the requested information, even though that other State may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 but in no case shall such limitations be construed to permit a Contracting State to decline to supply information solely because it has no domestic interest in such information.

5. In no case shall the provisions of paragraph 3 be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person.

Article 26 : ASSISTANCE IN THE COLLECTION OF TAXES - 1. The Contracting States shall lend assistance to each other in the collection of revenue claims. This assistance is not restricted by Articles 1 and 2. The competent authorities of the Contracting States may by mutual agreement settle the mode of application of this Article.

2.The term “revenue claim” as used in this Article means an amount owed in respect of taxes of every kind and description imposed on behalf of the Contracting States, or of their political sub-divisions or local authorities, insofar as the taxation there under is not contrary to this Agreement or any other instrument to which the Contracting States are parties, as well as interest, administrative penalties and costs of collection or conservancy related to such amount.

3. When a revenue claim of a Contracting State is enforceable under the laws of that State and is owed by a person who, at that time, cannot, under the laws of that State, prevent its collection, that revenue claim shall, at the request of the competent authority of that State, be accepted for purposes of collection by the competent authority of the other Contracting State. That revenue claim shall be collected by that other State in accordance with the provisions of its laws applicable to the enforcement and collection of its own taxes as if the revenue claim were a revenue claim of that other State.

4. When a revenue claim of a Contracting State is a claim in respect of which that State may, under its law, take measures of conservancy with a view to ensure its collection, that revenue claim shall, at the request of the competent authority of that State, be accepted for purposes of taking measures of conservancy by the competent authority of the other Contracting State. That other State shall take measures of conservancy in respect of that revenue claim in accordance with the provisions of its laws as if the revenue claim were a revenue claim of that other State even if, at the time when such measures are applied, the revenue claim is not enforceable in the first-mentioned State or is owed by a person who has a right to prevent its collection.

5. Notwithstanding the provisions of paragraphs 3 and 4, a revenue claim accepted by a Contracting State for purposes of paragraph 3 or 4 shall not, in that State, be subject to the time-limits or accorded any priority applicable to a revenue claim under the laws of that State by reason of its nature as such. In addition, a revenue claim accepted by a Contracting State for the purposes of paragraph 3 or 4 shall not, in that State, have any priority applicable to that revenue claim under the laws of the other Contracting State.

6. Proceedings with respect to the existence, validity or the amount of a revenue claim of a Contracting State shall only be brought before the courts or administrative bodies of that State. Nothing in this Article shall be construed as creating or providing any right to such proceedings before any court or administrative body of the other Contracting State.


7. Where, at any time after a request has been made by a Contracting State under paragraph 3 or 4 and before the other Contracting State has collected and remitted the relevant revenue claim to the first-mentioned State, the relevant revenue claim ceases to be :—

(a)   in the case of a request under paragraph 3, a revenue claim of the first-mentioned State that is enforceable under the laws of that State and is owed by a person who, at that time, cannot, under the laws of that State prevent its collection, or

(b)   in the case of a request under paragraph 4, a revenue claim of the first-mentioned State in respect of which that State may, under its laws, take measures of conservancy with a view to ensure its collection, the competent authority of the first-mentioned State shall promptly notify the competent authority of the other State of that fact and, at the option of the other State, the first-mentioned State shall either suspend or withdraw its request.

8. In no case shall the provisions of this Article be construed so as to impose on a Contracting State the obligation :—

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

(b)   to carry out measures which would be contrary to public policy (order public);

(c)   to provide assistance if the other Contracting State has not pursued all reasonable measures of collection or conservancy, as the case may be, available under its laws or administrative practice;

(d)   to provide assistance in those cases where the administrative burden for that State is clearly disproportionate to the benefit to be derived by the other Contracting State.

Article 27 : LIMITATION OF BENEFITS - 1. A person that is a resident of a Contracting State and derives income from the other Contracting State shall not be entitled to relief from taxation otherwise provided for in this Agreement if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of such items of income to take advantage of the provisions of this Agreement.

2. In making a determination under paragraph 1, the appropriate competent authority or authorities shall be entitled to consider, among other factors, the amount and nature of the income, circumstances in which the income was derived, the stated intention of the parties to the transaction, and the identity and residence of the persons who in law or in fact, directly or indirectly, control or beneficially own (i) the income or (ii) the persons who are resident(s) of the Contracting State(s) and who are concerned with the payment or receipt of such income.

Article 28 : MEMBERS OF DIPLOMATIC MISSIONS AND CONSULAR POSTS - Nothing in this Agreement shall affect the fiscal privileges of members of diplomatic missions or consular posts under the general rules of international law or under the provisions of special agreements.

Article 29 : ENTRY INTO FORCE - 1.The Contracting States shall notify each other in writing, through diplomatic channels, of the completion of the procedures required by the respective laws for the entry into force of this Agreement.

2. The Agreement shall enter into force thirty days after the date of the later of the notifications referred to in paragraph 1 and its provisions shall have effect :—

(a)   in Finland :—

(i)   in respect of taxes withheld at source, on income derived on or after 1st January in the calendar year next following the year in which the Agreement enters into force;

(ii)   in respect of other taxes on income for taxes chargeable for any tax year beginning on or after 1st January in the calendar year next following the year in which the Agreement enters into force;

(b)   in India :—

(i)   in respect of taxes withheld at source, for amounts paid or credited on or after 1st April of the calendar year next following that in which the Agreement enters into force;

(ii)   in respect of taxes on income, for any fiscal year beginning on or after 1st April of the calendar year next following that in which the Agreement enters into force.

3. The Agreement between the Republic of Finland and the Republic of India for the avoidance of double taxation with respect to taxes on income and on capital, signed at Helsinki on 10th June, 1983, as modified by the Protocol signed at New Delhi on 9th April, 1997 (hereinafter referred to as “the 1983 Agreement”), shall cease to have effect with respect to taxes to which this Agreement applies in accordance with the provisions of paragraph 2. The 1983 Agreement shall terminate on the last date on which it has effect in accordance with the foregoing provision of this paragraph.

Article 30 : TERMINATION - This Agreement shall remain in force until terminated by a Contracting State. Either Contracting State may terminate the Agreement, through diplomatic channels, by giving notice of termination at least six months before the end of any calendar year following after the period of five years from the date on which the Agreement enters into force. In such event, the Agreement shall cease to have effect :—

(a)   in Finland :—

(i)   in respect of taxes withheld at source, on income derived on or after 1st January in the calendar year next following the year in which the notice is given;

(ii)   in respect of other taxes on income for taxes chargeable for any tax year beginning on or after 1st January in the calendar year next following the year in which the notice is given;

(b)   in India :—

(i)   in respect of taxes withheld at source, for amounts paid or credited on or after 1st April of the calendar year next following that in which the notice is given;

(ii)   in respect of taxes on income, for any fiscal year beginning on or after 1st April of the calendar year next following that in which the notice is given.

In witness whereof the undersigned, duly authorised thereto, have signed this Agreement.

Done in duplicate at New Delhi this 15th day of January, 2010, in the Finnish, Swedish, Hindi and English languages, all four texts being equally authentic. In the case of divergence of interpretation, the English text shall prevail.

Protocol to the Agreement between The Republic of India and The Republic of Finland for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income
At the moment of signing of the Agreement between the Republic of Finland and the Republic of India for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, the undersigned have agreed that the following provisions shall form an integral part of the Agreement :

I. ad Articles 5 and 6

Under Finnish taxation law income from agriculture or forestry is treated as income from immovable property. Accordingly, income from agriculture or forestry carried on in Finland shall, in the case of Finland, for the purposes of the Agreement be treated as income from immovable property referred to in Article 6 of the Agreement.

II. ad Articles 10, 11 and 12
It is agreed that if after coming into force of this Agreement, any agreement or convention between India and a Member State of the Organisation for Economic Cooperation and Development provides that India shall exempt from tax dividends, interest, royalties or fees for technical services (either generally or in respect of specific categories of dividends, interest, royalties or fees for technical services) arising in India, or limit the tax charged in India on such dividends, interest, royalties or fees for technical services (either generally or in respect of specific categories of dividends, interest, royalties or fees for technical services) to a rate lower than that provided for in paragraph 2 of Article 10 or paragraph 2 of Article 11 or paragraph 2 of Article 12 of the Agreement, such exemption or lower rate shall be made applicable to the dividends, interest, royalties or fees for technical services (either generally or in respect of those specific categories of dividends, interest, royalties or fees for technical services) arising in India and beneficially owned by a resident of Finland and dividend, interest, royalties or fees for technical services arising in Finland and beneficially owned by a resident of India under the same conditions as if such exemption or lower rate had been specified in those paragraphs. The competent authority of India shall inform the competent authority of Finland without delay that the conditions for the application of this paragraph have been met and issue a notification to this effect for application of such exemption or lower rate.

With reference to the all text it is understood that the term “statutory body” used in this Agreement means any legal entity of a public character created by the laws of a Contracting State in which no person other than the State itself, or a local authority thereof, has an interest.

In witness whereof the undersigned, duly authorized thereto, have signed this Protocol.
Done in duplicate at NEW DELHI this 15th day of January, 2010, in the Finnish, Swedish, Hindi and English languages, all four texts being equally authentic. In the case of divergence of interpretation, the English text shall prevail.

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UPDATES

High Court Request By Nokia India To Lift Its Ownership Stay Order By December 2013


Dated 25th November, 2013 : Nokia India has moved to the Delhi High Court yesterday, to seek lifting of the stay order on the ownership transfer of its immovable assets in the country by December 12, 2013.

The company noted that this step was taken in order to seek a fair resolution with tax officials over its long-drawn tax case in the country, as it prepares to sell all its devices & services business to Microsoft, which acquired them in September 2013. Nokia shareholders had approved this deal last week.

The Delhi High Court had earlier put an interim stay on the ownership transfer of Nokia India’s immovable assets and also forbidden them from transferring these assets to any third person. This was due to IT Department’s claims that if Nokia transfers its ownership rights to others, the company will not have enough assets to meet the estimated tax liability of Rs 3,997 crore along with the existing tax demand of Rs 654 crore. In a statement, Nokia however had claimed to have sufficient assets in India to meet its tax obligations, details of which were expected to be shared with the tax authorities.

Nokia said lifting of this asset freeze will allow the company to successfully transfer all its Indian factory assets to Microsoft by Q1 2014 (when the Microsoft-Nokia agreement is expected to close), failing which the Indian factory assets will not be transferred to Microsoft and it will create an uncertainty at its Chennai facility. Citing sources close to the company, Reuters reports that Nokia will probably be operating the plant as a contract manufacturer for Microsoft.

A PTI report (via The Hindu) however says that if the transfer of its Chennai unit doesn’t happen, Nokia will be winding up its operations here over 12 months, following which the assets will carry little value.

Nokia India’s lawyers also apparently told the court that it is willing to pay a minimum deposit of Rs.2,250 crore as taxes immediately after the sale and deposit any additional surplus if the sale price is much higher, after adjusting for outstanding liabilities, excluding income tax liabilities.

Nokia Tax Case Until Now

- In January 2013, the Income Tax department had asked Nokia India for a clarification on non-payment of ‘tax deducted at source’ (TDS) on software supplies and on change in accounting model. Its officials had also conducted tax raids on Nokia India’s Sriperumbudur (Tamil Nadu) plant and offices in Chennai. The Indian authorities claims that the tax invasion involves payment for royalty on software to Nokia’s parent company in Finland.

- In February 2013, Nokia Corporation sent letters of complaint to Indian tax authorities saying that tax officials in January raided its manufacturing facility in Chennai without giving a reason suggesting that this was illegal. At that time, Nokia also claimed that its transfer pricing policies are in accordance to the Indian and Finnish laws.

- In April 2013, Nokia had filed a petition with the Delhi High Court last month and had received an interim stay order. However, the company had apparently withdrew its application later and the Delhi High Court had directed Nokia to file an appeal with the Commissioner of Income Tax (Appeals), as indicated by a NDTV report.

- In June 2013, the commissioner of Income Tax (appeals) had dismissed Nokia India’s plea against the Rs 2,100 crore tax claim by the Income Tax (IT) department. In the same month, Finland’s finance ministry had also launched a mutual agreement procedure with its Indian counterpart under the bilateral Double Taxation Avoidance agreement to resolve this issue.


- In September 2013, Delhi High Court has put an interim stay on Nokia India transferring the ownership rights for any of its immovable assets and had asked the company to inform the assessing officer before sending back money overseas.

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Nokia's Appeal Against Rs. 2,000 Crore Tax Demand Rejected 



Dated 27th November, 2013 : In a setback to Indian unit of Nokia Corp., the commissioner of income tax (appeals) has rejected the phone handset maker’s appeal against a Rs.2,000 crore tax demand in a case relating to royalties on software downloaded on devices manufactured at the Finnish company’s Chennai plant.

The decision is likely to lead to a new round of litigation at different levels by Nokia against the tax demand.
“Nokia is disappointed by the decision of the commissioner of income tax (appeals), and will now examine all options open to it. These include taking the case back to the Delhi high court,” the company said in a statement.

Nokia’s India unit was served in March with the tax demand for five years starting from 2006-07 in one of several tax disputes involving a foreign company in India.

Nokia had initially approached the high court in March challenging the tax department’s contention that tax should have been deducted at source by the Indian arm on money it paid as royalty to its parent. The tax demand said that Nokia India should have withheld 10% TDS (tax deducted at source) for royalty payments made against the supply of software by the parent company.

The high court had first stayed the order and then asked Nokia to approach the commissioner of income tax (appeals). In addition to legal action being pursued in India, the ministry of finance in Finland has launched the mutual agreement procedure (MAP) with its counterpart in India under the bilateral double taxation avoidance agreement (DTAA) between the two countries to arrive at a mutually agreeable solution, Nokia said. 

MAP is a provision under DTAA that allows for the resolution of disputes involving double taxation.

“Nokia will act quickly and decisively to protect its interests,” the statement said.
B.M. Singh, former chairman of the Central Board of Direct Taxes, said the dispute resolution will be a long process.

“It is only the first step and Nokia has the option of approaching the appellate tribunal and the high court. Also, if a MAP is initiated under the DTAA, then competent authorities of both the countries will have to sit together and figure out how much tax should be paid in which country,” he said.

Nokia reiterated that it was in full compliance with Indian laws as well as the bilaterally negotiated tax treaty between the governments of India and Finland. “Nokia will defend itself vigorously in this case and against any other Indian tax allegations, using all channels available,” the statement said.

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Nokia Loses Supreme Court Appeal In Indian Tax Dispute But Faces Limited Liabilities


Dated 18th March 2014 : Nokia (NYSE:NOK) suffered a setback in its Indian tax case last week, as the Supreme Court rejected its appeal against a lower court order which had directed the company to submit a $570 million guarantee before transferring its local assets to Microsoft (NASDAQ:MSFT. [1] The handset maker is willing to deposit around $370 million in an escrow account to cover its tax liabilities, but the Indian IT (Income Tax) department believes that the amount isn’t enough to meet its tax claims, which range between $650 million and $3.4 billion. With the Supreme Court upholding the IT department’s demands, Nokia will weigh its options which include either fronting up the extra cash as a guarantee or shutting down its handset manufacturing plant altogether. The Chennai factory is one of Nokia’s largest globally, employing around 8,000 people and constituting about 25 percent of the workforce that will be transferred to Microsoft as part of the handset division sale.

However, the good news for Nokia is that it is not liable for its subsidiary’s (Nokia India Pvt Ltd.) liabilities, with the Supreme court ruling that the IT department can’t force the parent company to submit an assurance. This limits Nokia’s exposure to the extent of the value of its Indian assets, which it claims to be in the range of $440-$500 million and is probably what Microsoft is paying it for the asset as part of the $7.2 billion deal. If the tax dispute isn’t resolved soon or negotiations with local authorities do not bring its tax liabilities down to below $500 million, it might be in Nokia’s best interests to walk out of India without transferring its assets to Microsoft. This will give Nokia less than expected cash from the Microsoft deal, but limit legal distractions while not hitting its overall valuation by much. By our estimates, Nokia’s stock is worth about $28 billion and a $500 million hit due to the Indian tax dispute would cause its valuation to drop by less than 2%. Our $7.50 price estimate for Nokia is about in line with the current market price.

Alternatives to Indian Factory Limit Valuation Impact

This will, of course, depend on Nokia’s discussions with Microsoft and the value that the Windows maker attaches to the Chennai plant. Around 250 million handsets (smartphones and feature phones) are estimated to have been sold in India in 2013, up year-over-year by about 14% according to Gartner. With a market share of about 19%, according to CMR India, Nokia sold about 48 million mobile phones in India last year. [2] Assuming an average selling price (ASP) of $35, or about Rupees 2100, we can reasonably expect Nokia to have generated revenues of about $1.6-$1.7 billion from Indian handset sales in 2013. This implies an Indian sales mix of about 15% of its total device revenues for the year. Given the high growth of India’s smartphone market and Nokia’s better brand value at the low end, this mix could increase going forward.

India is therefore a strategic market for Microsoft, and not having control over a local manufacturing plant could harm its long-term interests in the country. But if it becomes too expensive to pay the taxes, Microsoft and Nokia could go ahead with the blocked transfer and consider setting up manufacturing plants outside India instead. Given the cheap labor available in other Asian countries such as Thailand, Vietnam and Indonesia, this could be a smart move. With the asset transfer blocked, Nokia would then get back control of its factory, which it could run as a contractor to Microsoft in the near term until the overseas facilities are set up. Following this, Nokia could exit India altogether, with the subsidiary declaring bankruptcy and leaving the factory assets with the IT department as cover for its tax liabilities.
This is why the Supreme Court has also asked Nokia to submit a valuation report of its Indian assets. [3] The value agreed upon at the end of the negotiation process is unknown, but Nokia has said that the figure falls in the $440-$500 million range. It is also not clear how much Microsoft is paying Nokia for its Chennai plant which, together with the potential losses that it might incur in running the factory on a contractual basis in the near term, could set the upper limit for Nokia’s end of negotiations. But given Nokia’s low initial estimate, we don’t think the final asset value will be of significant concern to Nokia’s shareholders. The underlying assumption here is that the terms of the Nokia-Microsoft deal do not include a substantial break-up fee should Nokia not manage to close the sale of all its handset assets

Source : www.trefis.com
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Nokia Invokes India-Finland Bilateral Treaty To Solve Tax Row


Dated : May 14 2014, With tax authorities pressing with over Rs 21,000-crore in unpaid dues, Finnish telecom major Nokia has invoked the Bilateral Investment Promotion and Protection Agreement India has with Finland to resolve the dispute.

Nokia late last month wrote to Prime Minister invoking dispute settlement clause in the India-Finland BIPA to settle the row that had led to its Chennai plant being left out of the over USD 7.2-billion deal with Microsoft Corporation. The treaty provides for amicable conciliation proceedings and arbitration under local and the United Nations Commission on International Trade Law.

However, BIPA clauses state that if a dispute between the country and the investor cannot be settled amicably within 3 months, the investor can approach local courts or seek international conciliation under UNCITRAL Conciliation Rules for its resolution. The party can also approach the International Centre for Settlement of Investment Disputes or approach an adhoc arbitral tribunal under the Arbitration Rules of UNCITRA.

The application for negotiated settlement of the tax dispute was filed under the Double Taxation Avoidance Agreement (DTAA) between India and Finland. The mutual agreement process (MAP), which is a part of DTAA, provides for an alternative mechanism for resolution of dispute. The government, however, is not bound to accept the request under MAP and it had earlier rejected a similar request in the case of Vodafone, which is also facing a tax dispute with the government.

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This blog is Created by CA Anil Kumar Jain.