DTAA BETWEEN INDIA & MONACO
Agreement For Avoidance Of Double Taxation Of Income And The Prevention Of Fiscal Evasion With Monaco
(PRINCIPALITY OF
Whereas an Agreement (hereinafter referred to
as the said Agreement) between the Government of the Republic of India and the
Government of the Principality of Monaco for the exchange of information
relating to tax matters was signed at Monaco on the 31st day of July, 2012 ;
And whereas, the date of entry into force of the said Agreement is the 27th day
of March, 2013, being the date of later of the notifications of completion of
the procedures required by the respective laws for the entry into force of this
Agreement, in accordance with Paragraph 2 of Article 12 of the said Agreement;
And whereas, Paragraph 2 of Article 12 of the said Agreement provides that the
Agreement shall enter into force on the date of the later of the notifications
and shall thereupon have effect forthwith ; 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, as set out in the Annexure hereto, shall be given effect to in the
Union of India with effect from the 27th March, 2013.
ARTICLE 1 - OBJECT AND SCOPE OF THE AGREEMENT
The
competent authorities of the Contracting Parties shall provide assistance
through exchange of information that is foreseeably relevant to the
administration and enforcement of the domestic laws of the Contracting Parties
concerning taxes covered by this Agreement. Such information shall include
information that is foreseeably relevant to the determination, assessment and
collection of such taxes, the recovery and enforcement of tax claims, or the
investigation or prosecution of tax matters. Information shall be exchanged in
accordance with the provisions of this Agreement. The rights and safeguards
secured to persons by the laws or administrative practice of the requested
Party remain applicable to the extent that they do not unduly prevent or delay
effective exchange of information.
ARTICLE 2 –JURISDICTION
Information
shall be exchanged in accordance with this Agreement without regard to whether
the person to whom the information relates is, or whether the information is
held by, a resident of a Contracting Party. However, a Requested Party is not
obliged to provide information which is neither held by its authorities nor is
in the possession or control of persons who are within its territorial jurisdiction.
ARTICLE 3 - TAXES COVERED
1.
The taxes which are the subject of this Agreement are:
(a) in
India, taxes of every kind and description imposed by the Central Government or
the Governments of political subdivisions, irrespective of the manner in which
they are levied;
(b) in
Monaco , the
profits tax ("impots sur les benefices").
2.
This Agreement shall also apply to any identical or substantially similar taxes
imposed after the date of signature of this Agreement in addition to, or in
place of, the existing taxes. The competent authorities of the Contracting
Parties shall notify each other of any substantial changes to the taxation and
related information gathering measures which may affect the obligations of that
Party pursuant to this Agreement.
ARTICLE 4 – DEFINITIONS
(a) 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 U.N.
Convention on the Law of the Sea;
(b) the
term " Monaco" means the Principality of Monaco land's, internal
waters, territorial sea including bed and subsoil, the air space over them, the
exclusive economic zone and the continental shelf, over which the Principality
of Monaco exercises sovereign rights and jurisdictions in accordance with the
provisions of international law, the Principality of Monaco's national laws and
regulations;
(c) the
term "Contracting Party" means India
or Monaco as
the context requires;
(d) the
term "competent authority" means
(i) in
the case of India ,
the Finance Minister, Government of India, or its authorized representative;
and
(ii)
in the case of Monaco ,
the Counsellor of the Government for Finance and Economy or the Counsellor's
authorized representative;
(e) 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 Parties;
(f) the
term "company" means any body corporate or any entity that is treated
as a body corporate for tax purposes;
(g) the
term "publicly traded company" means any company whose principal
class of shares is listed on a recognised stock exchange provided its listed
shares can be readily purchased or sold by the public. Shares can be purchased
or sold "by the public" if the purchase or sale of shares is not
implicitly or explicitly restricted to a limited group of investors;
(h) the
term "principal class of shares" means the class or classes of shares
representing a majority of the voting power and value of the company;
(i) the
term "recognised stock exchange" means
(i) in
India, the National Stock Exchange, the Bombay Stock Exchange, and any other
stock exchange recognised by the Securities and Exchange Board of India; and
(ii)
any other stock exchange which the competent authorities agree to recognise for
the purposes of this Agreement.
(j) the
term "collective investment fund or scheme" means any pooled
investment vehicle, irrespective of legal form;
(k) the
term "public collective investment fund or scheme" means any collective
investment fund or scheme provided the units, shares or other interests in the
fund or scheme can be readily purchased, sold or redeemed by the public. Units,
shares or other interests in the fund or scheme can be readily purchased, sold
or redeemed "by the public" if the purchase, sale or redemption is
not implicitly or explicitly restricted to a limited group of investors;
(l) the
term "tax" means any tax to which this Agreement applies;
(m) the
term "requesting Party" means the Contracting Party submitting a
request for information to, or having received information from, the requested
Party;
(n) the
term "requested Party" means the Contracting Party which is requested
to provide information, or which has provided information;
(o) the
term "information gathering measures" means laws and administrative
or judicial procedures that enable a Contracting Party to obtain and provide
the requested information;
(p) the
term "information" means any fact, statement, document or record in
whatever form.
2.
As regards the application of this Agreement at any time by a Contracting
Party, any term not defined therein shall, unless the context otherwise
requires or the competent authorities agree to a common meaning pursuant to the
provisions of Article 10 of this Agreement, have the meaning that it has at
that time under the law of that Party, any meaning under the applicable tax
laws of that Party prevailing over a meaning given to the term under other laws
of that Party.
ARTICLE 5 -EXCHANGE OF INFORMATION UPON REQUEST
1.
The competent authority of the requested Party shall provide upon request
information for the purposes referred to in Article 1. Such information shall
be exchanged without regard to whether the requested Party needs such
information for its own tax purposes or whether the conduct being investigated
would constitute a crime under the laws of the requested Party if such conduct
occurred in the requested Party .
2.
If the information in the possession of the competent authority of the requested
Party is not sufficient to enable it to comply with the request for
information, that Party shall use all relevant information gathering measures
to provide the requesting Party with the information requested, notwithstanding
that the requested Party may not need such information for its own tax
purposes.
3.
If specifically requested by the competent authority of the requesting Party,
the competent authority of the requested Party shall provide information under
this Article, to the extent allowable under its domestic laws, in the form of
depositions of witnesses and authenticated copies of original records.
4
Each Contracting Party shall ensure that its competent authority, for the
purposes of this Agreement, has the authority to obtain and provide upon
request:
(a) information
held by banks, other financial institutions, and any person, including nominees
and trustees, acting in an agency or fiduciary capacity;
(b) information
regarding the legal and beneficial ownership of companies, partnerships,
collective investment funds or schemes, trusts, foundations,
"Anstalten" and other persons, including, within the constraints of
Article 2, ownership information on all such persons in an ownership chain; in
the case of collective investment funds or schemes, information on shares,
units and other interests; in the case of trusts, information on settlors,
trustees and beneficiaries; in the case of foundations, information on
founders, members of the foundation council and beneficiaries; and equivalent information
in case of entities that are neither trusts nor foundations.
5.
This Agreement does not create an obligation on the Contracting Parties to
obtain or provide ownership information with respect to publicly traded
companies or public collective investment funds or schemes unless such
information can be obtained without giving rise to disproportionate
difficulties.
6.
The competent authority of the requesting Party shall provide the following
information to the competent authority of the requested Party when making a
request for information under the Agreement to demonstrate the foreseeable
relevance of the information to the request:
(a) the
identity of the person under examination or investigation;
(b) the
period for which information is requested;
(c) the
nature of the information requested and the form in which the requesting Party
would prefer to receive it;
(d) the
tax purpose for which the information is sought;
(e) grounds
for believing that the information requested is present in the requested Party
or is in the possession or control of a person within the jurisdiction of the
requested Party;
(f) to
the extent known, the name and address of any person believed to be in
possession or control of the requested information;
(g) a
statement that the request is in conformity with the laws and administrative
practices of the requesting Party, that if the requested information was within
the jurisdiction of the requesting Party then the competent authority of the
requesting Party would be able to obtain the information under the laws of the
requesting Party or in the normal course of administrative practice and that it
is in conformity with this Agreement;
(h) a
statement that the requesting Party has pursued all means available in its own
territory to obtain the information, except those that would give rise to
disproportionate difficulties.
7.
The competent authority of the requested Party shall forward the requested
information as promptly as possible to the requesting Party. To ensure a prompt
response, the competent authority of the requested Party shall:
(a) Confirm
receipt of a request in writing to the competent authority of the requesting
Party and shall notify the competent authority of the requesting Party of
deficiencies in the request, if any, within 60 days of the receipt of the
request.
(b) If
the competent authority of the requested Party has been unable to obtain and
provide the information within 90 days of receipt of the request, including if
it encounters obstacles in furnishing the information or it refuses to furnish
the information, it shall immediately inform the requesting Party, explaining
the reason for its inability, the nature of the obstacles or the reasons for
its refusal.
ARTICLE
6 -TAX EXAMINATIONS ABROAD
1.
At the request of the competent authority of the requesting Party, the
requested Party may allow representatives of the competent authority of the
requesting Party to enter the territory of the requested Party, to the extent
permitted under its domestic laws, to interview individuals and examine records
with the prior written consent of the individuals or other persons concerned.
The competent authority of the requesting Party shall notify the competent
authority of the requested Party of the time and place of the intended meeting
with the individuals concerned.
2.
At the request of the competent authority of the requesting Party, the
requested Party may allow representatives of the competent authority of the
requesting Party to be present at the appropriate part of a tax examination in
the requested Party, in which case the competent authority of the requested
Party conducting the examination shall, as soon as possible, notify the
competent authority of the requesting Party about the time and place of the
examination, the authority or official designated to carry out the examination
and the procedures and conditions required by the requested Party for the
conduct of the examination. All decisions with respect to the conduct of the
tax examination shall be made by the Party conducting the examination.
ARTICLE 7 -POSSIBILITY OF DECLINING A REQUEST FOR INFORMATION
1. The competent authority of the requested Party may decline to assist:
(a) where
the request is not made in conformity with this Agreement; or
(b) where
the requesting Party has not pursued all means available in its own territory
to obtain the information, except where recourse to such means would give rise
to disproportionate difficulty; or
(c) where
disclosure of the information would be contrary to public policy (ordre public)
of the requested Party.
2.
This Agreement shall not impose on a Contracting party the obligation:
(i) to
supply information which would disclose any trade, business, industrial,
commercial or professional secret or trade process, provided that information
described in paragraph 4 of Article 5 shall not be treated as such a secret or
trade process merely because it meets the criteria in that paragraph; or
(ii)
to obtain or provide information, which would reveal confidential
communications between a client and an attorney, solicitor or other admitted
legal representative where such communications are:
(a) produced
for the purposes of seeking or providing legal advice; or
(b) produced
for the purposes of use in existing or contemplated legal proceedings; or
(iii)
to carry out administrative measures at variance with its laws and f
administrative practices, provided nothing in this subparagraph shall affect
the obligations of a Contracting Party under paragraph 4 of Article 5.
4.
The requested Party shall not be required to obtain and provide information
which the requesting Party would be unable to obtain in similar circumstances
under its own laws for the purpose of the administration or enforcement of its
own tax laws or in response to a valid request from the requested Party under
this Agreement.
ARTICLE 8 – CONFIDENTIALITY
Any
information received by a contracting Party under this Agreement shall be
treated as confidential and may be disclosed only to persons or authorities
(including Courts and administrative bodies) in the jurisdiction of the
Contracting Party concerned with the assessment or collection of, the
enforcement or prosecution in respect of, or the determination of appeals in
relation to, the taxes covered by this Agreement. Such persons or authorities
shall use such information only for such purposes. They may disclose the
information in public court proceeding or in judicial decisions. The
information may not be disclosed to any other person or entity or authority or
any other jurisdiction (including a foreign Government) without the express
written consent of the competent authority of the requested Party.
ARTICLE 9 - IMPLEMENTATION LEGISLATION
The
Contracting Parties shall enact any legislation necessary to comply with, and
give effect to, the terms of the Agreement. Such legislation shall be enacted
within six months of entry into force of this Agreement.
ARTICLE 10- MUTUAL AGREEMENT PROCEDURE
1.
Where difficulties or doubts arise between the Contracting Parties regarding
the implementation or interpretation of the Agreement, the competent
authorities shall endeavour to resolve the matter by mutual agreement. In
addition, the competent authorities of the Contracting Parties may mutually
agree on the procedures to be used under Articles 5, 6 and 11 of this
Agreement.
2.
The competent authorities of the Contracting Parties may communicate with each
other directly for purposes of reaching agreement under this Article.
ARTICLE 11 –COSTS
1.
Unless the competent authorities of the Contracting Parties otherwise agree,
ordinary costs incurred in providing assistance shall be borne by the Requested
Party, and, subject to the provisions of this Article, extraordinary costs
incurred in providing assistance shall, if they exceed 500 Euroes, be borne by
the Requesting Party.
2.
The competent authorities will consult each other, in advance, in any
particular case where extraordinary costs are likely to exceed 500 Euroes to
determine whether the Requesting Party will continue to pursue the request and
bear the cost.
3.
The competent authorities shall consult from time to time with regard to this
Article.
4.
Ordinary costs include internal administration costs, any minor external costs
and overhead expenses incurred by the Requested Party in reviewing and
responding to information requests submitted by the Requesting Party. Examples
of extraordinary costs incurred in providing assistance include, but are not
limited to the following :
(a) reasonable
fees charged by third parties for copying documents on behalf of the Requested
Party;
(b) reasonable
costs of engaging interpreters, translators or other agreed experts;
(c) reasonable
costs of conveying documents to the Requesting Party;
(d) reasonable
litigation costs of the Requested Party in relation to a specific request for
information; and
(e) reasonable
costs for obtaining depositions or testimony.
ARTICLE 12- ENTRY INTO FORCE
1.
The Contracting Parties 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.
This Agreement shall enter into force on the date of the later of the
notifications referred to in paragraph I of this Article and shall thereupon
have effect forthwith.
ARTICLE 13-TERMINATION
1. This Agreement shall remain in force until terminated by either Contracting Party.
2.
Either Contracting Party may, after the expiry of five years from the date of
its entry into force, terminate the Agreement by serving a written notice of
termination to the other Contracting Party through diplomatic channels.
3.
Such termination shall become effective on the first day of the month following
the expiration of a period of six months after the date of receipt of notice of
termination by the other Contracting Party. All requests received up to the effective
date of termination shall be dealt with in accordance with the provisions of
the Agreement.
In
Witness Whereof, the undersigned, being duly authorised thereto, have signed
this Agreement.
Done in duplicate at
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In
case readers require further clarifications on the subject dealt above, you can
contact CA A. K. Jain, E mail – caindia@hotmail.com,
Telephone no. 9810046108 for technical consultation and advisory opinions.
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