Income Tax Department has issued a notification dated 01.04.2013 regarding Double Taxation Agreement for Exchange of Information with respect to Taxes with Foreign Countries. The complete notification are as follows:
SECTION
90 OF THE INCOME-TAX ACT, 1961 – DOUBLE TAXATION AGREEMENT – AGREEMENT FOR
EXCHANGE OF INFORMATION WITH RESPECT TO TAXES WITH FOREIGN COUNTRIES –
GIBRALTAR
NOTIFICATION NO. 28/2013[F.NO.503/11/2009-FTD-I], DATED 1-4-2013
Whereas,
an Agreement between the Government of the Republic of India and the Government
of Gibraltar for the Exchange of Information with respect to taxes was signed
at London on the 1st day of February, 2013(hereinafter referred to as the
Agreement):
And
whereas, the date of entry into force of the Agreement is the 11th day of
March, 2013, being the date of later of the notifications of completion of the
procedures as required by the respective laws for entry into force of the
Agreement, in accordance with the provisions of article 12 of the Agreement;
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 Agreement between the Government of the Republic of India and
the Government of Gibraltar for the exchange of information with respect to
taxes, as set out in the Annexure hereto, shall be given effect to in the Union
of India with effect from date of entry into force i.e the 11th March,
2013.
AGREEMENT
BETWEEN
THE GOVERNMENT OF THE REPUBLIC OF INDIA
AND
THE GOVERNMENT OF GIBRALTAR
FOR
THE EXCHANGE OF INFORMATION
WITH RESPECT TO TAXES
Whereas
the Government of the Republic of India and the Government of Gibraltar
"the Contracting Parties" wish to enhance and facilitate the terms
and conditions governing the exchange of information relating to taxes;
Whereas
it is acknowledged that Gibraltar under the terms of its Entrustment from the
UK has the right to negotiate, conclude, perform and subject to the terms of
this agreement terminate a Tax Information Exchange Agreement with India;
Now,
Therefore, the Contracting Parties have agreed to conclude the following
Agreement which contains obligations on the part of India and Gibraltar only:
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 and shall be treated as
confidential in the manner provided in Article 8. 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:
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(a)
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in India,
taxes of every kind and description imposed by the Central Government or the
Governments of political sub-divisions or local authorities, irrespective of
the manner in which they are levied;
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(b)
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in
Gibraltar, taxes of every kind and description, irrespective of the manner in
which they are levied .
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2. This Agreement shall also apply to any
identical taxes imposed after the date of signature of this Agreement in
addition to, or in place of, the existing taxes. This Agreement shall also
apply to any substantially similar taxes imposed after the date of signature of
this Agreement in addition to, or in place of, the existing taxes if the
competent authorities of the Contracting Parties so agree. 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
1. For the purposes of this Agreement,
unless otherwise defined:
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(a)
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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;
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(b)
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the term
Gibraltar means the territory of Gibraltar;
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(c)
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the term
"Contracting Party" means India or Gibraltar as the context
requires;
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(d)
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the term
"competent authority" means -
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(i)
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in the case
of India, the Finance Minister, Government of India, or its authorized
representative;
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(ii)
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in the case
of Gibraltar, the Minister of Finance or his authorised representative;
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(e)
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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;
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(f)
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the term
"company" means any body corporate or any entity that is treated as
a body corporate for tax purposes;
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(g)
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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;
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(h)
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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;
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(i)
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the term
"recognised stock exchange" means -
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(i)
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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
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(ii)
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any other
stock exchange which the competent authorities agree to recognise for the
purposes of this Agreement.
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(j)
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the term
"collective investment fund or scheme" means any pooled investment
vehicle, irrespective of legal form;
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(k)
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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;
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(l)
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the term
"tax" means any tax to which this Agreement applies;
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(m)
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the term
"requesting Party" means the Contracting Party submitting a request
for information to, or having received information from, the requested party;
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(n)
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the term
"requested Party" means the Contracting Party which is requested to
provide the information or which has provided information;
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(o)
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the term
"information gathering measures" means laws and administrative or judicial
procedures that enable a Contracting Party to obtain and provide the
requested information;
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(p)
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the term
"information" means any fact, statement, document or record in
whatever form;
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(q)
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the term
"criminal tax matters" means tax matters involving intentional
conduct, whether before or after the entry into force of this agreement,
which is liable to prosecution under the criminal laws and / or the tax laws
of the applicant Party;
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(r)
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the term
"criminal laws" means all criminal laws designated as such under
domestic law irrespective of whether contained in the tax laws, the criminal
code or other statutes.
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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 11 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 specified in Article 1 of this
Agreement, has the authority to obtain and provide upon request:
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(a)
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information
held by banks, other financial institutions, and any person, including
nominees and trustees, acting in an agency or fiduciary capacity;
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(b)
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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.
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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:
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(a)
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the
identity of the person under examination or investigation;
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(b)
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the period
for which information is requested;
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(c)
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the nature
of the information requested and the form in which the requesting Party would
prefer to receive it;
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(d)
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the tax
purpose for which the information is sought;
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(e)
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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;
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(f)
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to the
extent known, the name and address of any person believed to be in possession
or control of the requested information;
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(g)
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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;
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(h)
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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.
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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:
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(a)
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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.
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(b)
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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.
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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:
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(a)
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where the
request is not made in conformity with this Agreement; or
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(b)
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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
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(c)
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where
disclosure of the information would be contrary to public policy (ordre
public) of the requested Party.
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2. This Agreement shall not impose on a
Contracting Party the obligation:
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(i)
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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
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(ii)
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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:
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(a)
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produced
for the purposes of seeking or providing legal advice or
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(b)
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produced
for the purposes of use in existing or contemplated legal proceedings.
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3. A request for information shall not be
refused on the ground that the tax claim giving rise to the request is
disputed.
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.
5. The requested Party may decline a
request for information if the information is requested by the requesting Party
to administer or enforce a provision of the tax law of the requesting Party, or
any requirement connected therewith, which discriminates against a national of
the requested Party as compared with a national of the requesting Party in the
same circumstances.
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 proceedings 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
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, 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 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 Requested Party. Examples of extraordinary costs incurred in
providing assistance include but are not limited to the following:
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(a)
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reasonable
fees charged by third parties for copying documents on behalf of the
Requested Party;
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(b)
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reasonable
costs of engaging interpreters, translators or other agreed experts;
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(c)
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reasonable
costs of conveying documents to the Requesting Party;
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(d)
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reasonable
litigation costs of the Requested Party in relation to a specific request for
information;
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(e)
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reasonable
costs for obtaining depositions or testimony.
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ARTICLE 10
IMPLEMENTATION LEGISLATION
The
Contracting Parties shall enact any legislation necessary to comply with, and
give effect to, the terms of the Agreement.
ARTICLE 11
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 and 6 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 12
ENTRY INTO FORCE
1. The Contracting Parties shall notify
each other in writing 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 1 of this
Article. Upon entry into force it shall have effect:
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(a)
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for
criminal tax matters on that date; and
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(b)
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for all
other matters covered in Article 1, on that date, but only in respect of
taxable periods beginning on or after that date or, where there is no taxable
period, all charges to tax arising on or after that date.
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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 three 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 appropriate 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 London on this First day of February, 2013, each in the Hindi, and
English languages, all texts being equally authentic. In case of divergence of
interpretation, the English text shall prevail.
