Evasion check: Revised Indo-Cyprus tax treaty gets Cabinet approval

New Delhi - In another major step in fight against tax evasion, the Cabinet on Wednesday gave its approval to the revised DTAA between India and Cyprus that provides for source-based taxation of capital gains on transfer of shares instead of one based on residence. [caption id=“attachment_2858388” align=“alignleft” width=“380”]  Representational image[/caption] “The Union Cabinet chaired by Prime Minister Narendra Modi has given its approval to signing of an agreement and the protocol between India and Cyprus for avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to taxes on income,” an official statement said. Noting that this step follows the recent amendment of the Double Taxation Avoidance Agreement (DTAA) with Mauritius, the statement said the treaty with Cyprus had provided for residence-based taxation of capital gains as in the case of Mauritius. “With the revision of the treaty now approved by the Cabinet, capital gains will be taxed in India for entities resident in Cyprus, subject to double tax relief,” it added. In other words, India will have the right to tax capital gains arising in the country. The provisions in the earlier treaty for residence-based taxation were leading to distortions in funds flows through artificial diversion of various investments from their true countries of origin for the sake of avoiding tax. “As in the case of Mauritius, this amendment will deter such activities. Negotiations with Singapore are also under way for similar changes,” the statement said. An official-level meeting between India and Cyprus was held here in June to finalise the new India-Cyprus DTAA, wherein all pending issues, including taxation of capital gains, were discussed, and an in-principle agreement was reached. “It was agreed to provide for source-based taxation of capital gains on transfer of shares. However, a grand-fathering clause would be provided for investments made prior to April 1, 2017, in respect of which capital gains would be taxed in the country of which taxpayer is a resident,” the ministry had said in a statement earlier. India and Cyprus have a DTAA since 1994. Cyprus is a major source of foreign funds flows into the country. From April 2000 till March 2016, India received foreign direct investment to the tune of Rs 42,680.76 crore from Cyprus. The completion of negotiation on avoidance of double taxation and prevention of fiscal evasion has paved the way for removal of Cyprus from the list of ‘Notified Jurisdictional Areas’ retrospectively from November 2013. The protocol to the agreement offered clarification on taxation of dividends in India that are subjected to dividend distribution tax and stated that provisions on assistance in tax collection shall not be construed to impose any obligation that is at variance with laws, practices or public policy of a contracting state. “It also clarifies that Article 24 on non-discrimination will not be construed as preventing a contracting state from charging the profits of a permanent establishment at a rate which is higher than that imposed on a domestic company,” the statement added. The proposed DTAA also provides for a revised provision for exchange of information that would enable the use of information exchanged for other purposes, with the permission of the competent authority of the country providing the information. It also expands the scope of the Permanent Establishments (PEs) that enables source-based taxation of business income. “The provision on income from Shipping and Aircrafts has been aligned with international standards in the proposed DTAA,” the statement said. Other provisions, including those on royalty, fees for technical services, artists and sportspersons, mutual agreement procedure (MAP), exchange of information and definitions of relevant terms like resident, business profits, associated enterprises, dividend, interest, have also been aligned with India’s policy and international standards accepted by India. The DTAA will come into effect in India from 1 April 2017.