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19A.
Agreement
for avoidance of double taxation and prevention of
fiscal evasion with Whereas
the annexed Convention between the Government of the
Republic of India and the Government of Ireland for the
Avoidance of Double Taxation and for the Prevention of
Fiscal Evasion with respect to taxes on income and
capital gains has entered into force on 26th December,
2001, thirty days after the receipt of the later of the
notifications by both the Contracting States to each
other of the completion of the procedure required by
their respective laws, as required by Article 28 of the
said Convention. Now,
therefore, in exercise of the powers conferred by
section 90 of the Income-tax Act, 1961 (43 of 1961), the
Central Government hereby directs that all the
provisions of the said Convention shall be given effect
to in the Union of Notification:
No.
45/2002 [F. No. 503/6/99-FTD],
dated 20-2-2002. Annexure Convention
between the Government of the Republic of India and the
Government of Ireland For the Avoidance of Double
Taxation and for the Prevention of Fiscal Evasion with
respect to taxes on Income and Capital Gains The
Government of the ARTICLE
1 : Personal
Scope - This Convention shall apply to persons who
are residents of one or both of the Contracting States. ARTICLE
2 : Taxes
Covered - 1. This Convention shall apply to
taxes on income and capital gains imposed on behalf of a
2.
There shall be regarded as taxes on income and capital
gains all taxes imposed on total income, or on elements
of income including taxes on gains from the alienation
of movable or immovable property. 3.
The existing taxes to which the Convention shall apply
are in particular :—
(a) In
the
income-tax including any surcharge thereon;
(hereinafter
referred to as “Indian tax”);
(b)
In
(i)
the income-tax;
(ii)
the corporation tax; and (iii)
the capital gains tax
(hereinafter
referred to as “Irish tax”). 4.
The Convention shall apply also to any identical or
substantially similar taxes which are imposed after the
date of signature of the Convention in addition to, or
in place of, the existing taxes referred to in paragraph
3. The competent authorities of the Contracting States
shall notify each other of significant changes which
have been made in their respective taxation laws. ARTICLE
3 : General
Definitions - 1. For the purposes of this
Convention, unless the context otherwise requires :—
(a)
the term “India” means the territory of India
and includes the territorial sea and 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;
(b)
the term “Ireland” includes any area outside
the territorial waters of Ireland which, in accordance
with international law, has been or may hereafter be
designated under the laws of Ireland concerning the
Continental Shelf, as an area within which the rights of
Ireland with respect to the sea and subsoil and their
natural resources may be exercised;
(c)
the term “person” includes an individual, a
company, a trust, a partnership which is treated as a
taxable unit under the Income-tax Act, 1961 (43 of 1961)
of India, 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 which is treated as a body corporate for
tax purposes;
(e)
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;
(f)
the term “international traffic” means any
transport by a ship or aircraft operated by an
enterprise of a
(g)
the term “competent authority” means :
(i)
in the case of
(ii)
in the case of
(h)
the term “national” means :
(i)
in relation to
(ii)
in relation to India (A) any individual
possessing the nationality of
(i)
the term “fiscal year” means :
(i)
in the case of
(ii)
in the case of Ireland, a year beginning with the
sixth day of April in one year and ending with the fifth
day of April in the following year;
(j)
The term “tax” means Indian tax or Irish tax,
as the context requires, but shall not include any
amount which is payable in respect of any default or
omission in relation to the taxes to which this
Convention applies or which represents a penalty or fine
imposed relating to those taxes;
(k)
the terms “a 2.
As regards the application of the Convention by a
Contracting State any term not defined therein shall,
unless the context otherwise requires, have the meaning
which it has under the law of that State concerning the
taxes to which the Convention applies. ARTICLE
4 : Resident
- 1. For the purposes of this Convention, the
term “resident of a Contracting State” means any
person who, under the laws of that State, is liable to
tax therein by reason of his domicile, residence, place
of management or any other criterion of a similar
nature. 2.
Where by reason of the provisions of paragraph 1 an
individual is a resident of both
(a)
he shall be deemed to be a resident 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 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 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 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 settle the question by mutual agreement. 3.
Where by reason of the provisions of paragraph 1 a
person other than an individual is a resident of both
Contracting States, then it shall be deemed to be a
resident of the State in which its place of effective
management is situated. If the State in which its place
of effective management is situated cannot be
determined, then the competent authorities of the
Contracting States shall settle the question by mutual
agreement. ARTICLE
5 : Permanent
Establishment - 1. For the purposes of this
Convention, the term “permanent establishment” means
a fixed place of business through which the business of
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 mine, an oil or gas well, a quarry or any other
place of extraction or exploration of natural resources;
(g)
an installation or structure used for the
exploration or exploitation of natural resources;
(h)
a sales outlet;
(i)
a warehouse in relation to a person providing
storage facilities for others; and
(j)
a farm, plantation or other place where
agricultural, forestry, plantation or related activities
are carried on. 3.
A building site or construction or assembly project or
supervisory activities in connection therewith
constitute a permanent establishment only if such site,
project or activity last more than six months. 4.
An enterprise shall be deemed to have a permanent
establishment in a Contracting State and to carry on
business through that permanent establishment if it
provides services or facilities in connection with, or
supplies plant and machinery on hire used for or to be
used in, the prospecting for, or extraction or
exploitation of mineral oils in that State. 5.
Notwithstanding the previous 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, display or delivery 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, display or delivery;
(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. 6.
Notwithstanding the provisions of paragraphs 1 and 2,
where a person - other than an agent of an independent
status to whom paragraph 8 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 5 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; or
(c)
habitually secures orders in the first-mentioned
State, wholly or almost wholly for the enterprise itself
or for the enterprise and other enterprises controlling,
controlled by, or subject to the same control as that
enterprise. 7.
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 8 applies. 8.
An enterprise shall not be deemed to have a permanent
establishment in a 9.
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 2.
The term “immovable property” shall have the meaning
which it has under the laws of the 3.
The provisions of paragraph 1 shall apply to income
derived from the direct use, letting, or use in any
other form of immovable property. 4.
The provisions of paragraphs 1 and 3 shall also apply to
the income from immovable property of an enterprise and
to income from immovable property used for the
performance of independent personal services. ARTICLE
7 : Business
profits - 1. The profits of an enterprise of
a 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 the determination of the profits of a permanent
establishment, there shall be allowed as deductions
expenses which are incurred for the purposes of the
permanent establishment, whether in the State in which
the permanent establishment is situated or elsewhere.
Executive and general administrative expenses shall be
allowed as deductions in accordance with the taxation
laws of that State. Nothing in this paragraph shall,
however, authorise a
deduction for expenses which would not be deductible if
the permanent establishment were a separate enterprise. 4.
No profits shall be attributed to a permanent
establishment by reason of the mere purchase by that
permanent establishment of goods or merchandise for the
enterprise. 5.
For the purposes of the preceding paragraphs, the
profits to be attributed to the permanent establishment
shall be determined by the same method year by year
unless there is good and sufficient reason to the
contrary. 6.
Where profits include items of income which are dealt
with separately in other Articles of this Convention,
then the provisions of those Articles shall not be
affected by the provisions of this Article. ARTICLE
8 : Shipping
and air transport - 1. Profits derived by an
enterprise of a Contracting State from the operation or
rental of ships or aircraft in international traffic and
the rental of containers and related equipment which is
incidental to the operation of ships or aircraft in
international traffic shall be taxable only in that
Contracting State. 2.
The provisions of paragraph 1 shall also apply to
profits from the participation in a pool, a joint
business or an international operating agency. 3.
For the purposes of this Article, interest on funds
connected directly with the operation of ships or
aircraft in international traffic shall be regarded as
profits derived from the operation of such ships or
aircraft; and the provisions of Article 11 shall not
apply in relation to such interest, provided that such
funds are incidental to that operation. 4.
Notwithstanding the preceding provisions of this
Article, profits derived by an enterprise of a
Contracting State from the operation of ships between
the ports of the other Contracting State and the ports
of third countries may be taxed in that other
Contracting State, but the tax imposed in that other
State shall be reduced by an amount equal to two-thirds
thereof. ARTICLE
9 : Associated
Enterprises - 1. Where—
(a)
an enterprise of a
(b)
the same persons participate directly or
indirectly in the management, control or capital of an
enterprise of a 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 the tax charged
therein on those profits. In determining such
adjustment, due regard shall be had to the other
provisions of this Convention 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 2.
However, such dividends may also be taxed in the 3.
The term “dividends” as used in this Article
includes income from shares or other rights, not being
debt-claims, participating in profit, 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
dividend 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 2.
However, such interest may also be taxed in the 3.
Notwithstanding the provisions of paragraph 2, interest
arising in a
(a)
the Government, a political sub-division, a
statutory body or a local authority of the other
(b)
(i)
in the case of India, the Reserve Bank of India,
the Industrial Finance Corporation of India, the
Industrial Development Bank of India, the Export-Import
Bank of India, the National Housing Bank, the Small
Industries Development Bank of India and the Industrial
Credit and Investment Corporation of India (ICICI); and
(ii)
in the case of
(c)
any other similar institution as may be agreed
from time to time between the Competent Authorities of
the Contracting States. 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, but
does not include any income which is treated as a
dividend under Article 10. 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 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 relationships, 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 ARTICLE
12 : Royalties
and fees for technical services - 1.
Royalties or fees for technical services arising in a 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 recipient is the beneficial owner of the royalties
or fees for technical services, 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 or films or tapes for
radio or television broadcasting, any patent, trade
mark, design or model, plan, secret formula or process
or for the use of or the right to use industrial,
commercial or scientific equipment, other than an
aircraft, or for information concerning industrial,
commercial or scientific experience; (b)
The term “fees for technical services” means payment
of any kind in consideration for the rendering of any
managerial, technical or consultancy services including
the provision of services by technical or other
personnel but does not include payments for services
mentioned in Articles 14 and 15 of this Convention. 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 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 or
fees for technical services, 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 ARTICLE
13 : Capital
gains - 1. Gains derived by a resident of a 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 also 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 from the alienation of shares of the capital stock
of a company the property of which consists directly or
indirectly principally of immovable property situated in
a 5.
Gains from the alienation of shares other than those
mentioned in paragraph 4 in a company which is a
resident of a 6.
Gains from the alienation of any property other than
that referred to in paragraphs 1, 2, 3, 4 and 5 shall be
taxable only in the ARTICLE
14 : Independent
personal services - 1. Income derived by a
resident of a Contracting State in respect of
professional services or other activities of an
independent 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 State is for a period or
periods aggregating 183 days or more in any 12-month
period 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, surgeons, dentists and accountants. ARTICLE
15 : Dependent
personal services - 1. Subject to the
provisions of Articles 16, 18, 19 and 21, salaries,
wages and other similar remuneration derived by a
resident of a 2.
Notwithstanding the provisions of paragraph 1,
remuneration derived by a resident of a
(a)
the recipient is present in the other State for a
period or periods not exceeding in the aggregate 183
days in any 12-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 ARTICLE
16 : Directors’
fees - Directors’ fees and other similar payments
derived by a resident of a 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 some other 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 from activities performed in a ARTICLE
18 : Pensions
and annuities - 1. Subject to the provisions
of paragraph 2 of Article 19, pensions and other similar
remuneration paid to a resident of a Contracting State
in consideration of past employment and any annuity paid
to such a resident in consideration of past employment
shall be taxable only in that State. 2.
The term “annuity” means a stated sum payable
periodically at stated times during life or during a
specified or ascertainable period of time under an
obligation to make the payments in return for adequate
and full consideration in money or money’s worth. ARTICLE
19 : Government
service - 1. (a) Remuneration, other
than a pension, paid by a Contracting State or a
political sub-division or a local authority thereof to
an individual in respect of services rendered to that
State or sub-division or authority shall be taxable only
in that State. (b)
However, such 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 or a
local authority thereof to an individual in respect of
services rendered to that State or sub-division or
authority shall be taxable only in that State; (b)
However, such pension shall be taxable only in the other
3.
The provisions of Articles 15, 16 and 18 shall apply to
remuneration and pensions in respect of services
rendered in connection with a business carried on by a ARTICLE
20 : Students
and apprentices - 1. A student or business
apprentice who is or was a resident of a Contracting
State immediately before visiting the other Contracting
State and who is present in that other Contracting State
solely for the purpose of his education or training
shall be exempt from tax in that other State on:
(a)
payments made to him by persons residing outside
that other State for the purposes of his maintenance,
education or training; and
(b)
remuneration from employment in that other State
to the extent that it does not exceed the amount which
is exempt from tax under the laws of that other 2.
The benefit of this Article shall extend only for such
period of time as may be reasonable or customarily
required to complete the education or training
undertaken, but in no event shall any individual have
the benefits of this Article for more than six
consecutive years from the date of his first arrival in
that other ARTICLE
21 : Professors,
teachers and research scholars - 1. A
professor, teacher or research scholar who is or was a
resident of one of the Contracting States immediately
before visiting the other Contracting State for the
purpose of teaching or engaging in research, or both, at
a university, college or other similar institution in
that other Contracting State shall be exempt from tax in
that other State on any remuneration for such teaching
or research for a period not exceeding two years from
the date of his first arrival in that other State for
such purpose. 2.
This Article shall not apply to income from research, if
such research is undertaken primarily for the private
benefit of a specific person or persons. 3.
For the purposes of this Article and Article 20, an
individual shall be deemed to be a resident of a ARTICLE
22 : Other
income - 1. Items of income of a resident of
a 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 paragraph 1, if a
resident of a Contracting State derives income from
sources within the other Contracting State in the form
of winnings from lotteries, crossword puzzles, races
including horse races, card games and other games of any
sort or gambling or betting of any form or nature
whatsoever such income may be taxed in the other
Contracting State. ARTICLE
23 : Elimination
of double taxation - 1. The laws in force in
either of the Contracting States will continue to govern
the taxation of income in the respective Contracting
States except where provisions to the contrary are made
in this Convention. 2.
Subject to the provisions of the laws of India regarding
the allowance as a credit against Indian tax of tax paid
in a territory outside India (which shall not affect the
general principle hereof), the amount of Irish tax paid,
under the laws of Ireland and in accordance with the
provisions of this Convention, whether directly or by
deduction, by a resident of India, in respect of income
from sources within Ireland which has been subjected to
tax both in India and Ireland shall be allowed as a
credit against the Indian tax payable in respect of such
income but in an amount not exceeding that proportion of
Indian tax which such income bears to the entire income
chargeable to Indian tax. 3.
Subject to the provisions of the laws of
(a)
Indian tax payable under the laws of India and in
accordance with this Convention, whether directly or by
deduction, on profits, income and gains from sources
within India (excluding in the case of a dividend tax
payable in respect of the profits out of which the
dividend is paid) shall be allowed as a credit against
any Irish tax computed by reference to the same profits,
income and gains by reference to which Indian tax is
computed.
(b)
In the case of a dividend paid by a company which
is a resident of India to a company which is a resident
of Ireland and which controls directly or indirectly 25
per cent or more of the voting power in the company
paying the dividend, the credit shall take into account
[in addition to any Indian tax creditable under the
provisions of sub-paragraph (a)] Indian tax
payable by the company in respect of the profits out of
which such dividend is paid. 4.
(a) For the purposes of sub-paragraph (b)
of paragraph 3, the term “Indian tax payable” shall
be deemed to include 75 per cent of the Indian tax which
would have been paid but for any exemption or reduction
of tax granted under incentive provisions contained in
Indian law designed to promote economic development to
the extent that such exemption or reduction is granted
for profits from industrial or manufacturing activities,
or from the development, maintenance and operation of
infrastructure facilities, or from agriculture, fishing
or tourism (including restaurants and hotels), provided
that such incentive provisions remain in substance
unchanged since the date of signature of this Convention
and that the activities have been carried out within
India. (b)
The provisions of sub-paragraph (a) shall cease
to apply after twelve years from the date of entry into
force of this Convention. (c)
Should 5.
For the purposes of paragraphs 2 and 3, profits, income
and gains owned by a resident of a 6.
Income which in accordance with the provisions of this
Convention is not to be subjected to tax in a
Contracting State may be taken into account for
calculating the rate of tax to be imposed in that
Contracting State on other income. ARTICLE
24 : Non-discrimination
- 1. Nationals of a 2.
The taxation on a permanent establishment which an
enterprise of a 3.
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 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. 4.
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. ARTICLE
25 : 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
Convention, he may, irrespective of the remedies
provided by the domestic laws 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 24, 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 Convention. 2.
The competent authority shall endeavour,
if the objection appears to it to be justified and if it
is not itself able to arrive at a satisfactory solution,
to resolve the case by mutual agreement with the
competent authority of the other 3.
The competent authorities of the Contracting States
shall endeavour to resolve
by mutual agreement any difficulties or doubts arising
as to the interpretation or application of the
Convention. They may also consult together for the
elimination of double taxation in cases not provided for
in the Convention. 4.
The competent authorities of the Contracting States may
communicate with each other directly for the purpose of
reaching an agreement in the sense of the preceding
paragraphs. When it seems advisable in order to reach
agreement to have an oral exchange of opinions, such
exchange may take place through a Commission consisting
of representatives of the competent authorities of the
Contracting States. ARTICLE
26 : Exchange
of information - 1. The competent authorities
of the Contracting States shall exchange such
information including documents, as is necessary for
carrying out the provisions of this Convention or of the
domestic laws of the Contracting State concerning taxes
covered by the Convention insofar as the taxation thereunder
is not contrary to the Convention in particular for the
prevention of fraud or evasion of such taxes. The
exchange of information is not restricted by Article 1. Any
information so exchanged by a Contracting State shall be
treated as secret in the same manner as information
obtained under the domestic laws of the 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, or the determination of
appeals in relation to the taxes covered by the
Convention. 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. 2.
In no case shall the provisions of paragraph 1 be
construed so as to impose on a
(a)
to carry out administrative measures at variance
with the laws and administrative practice of that or of
the other
(b)
to supply information or documents which are not
obtainable under the laws or in the normal course of the
administration of that or of the other
(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. ARTICLE
27 : Diplomatic
agents and consular officials - Nothing in this
convention shall affect the fiscal privileges of
diplomatic agents or consular officials under the
general rules of international law or under the
provisions of special agreements. ARTICLE
28 : Entry
into force - 1. The Contracting States shall
notify each other in writing, through diplomatic
channels, of the completion of the procedure required by
the respective laws for the entry into force of this
Convention. 2.
This Convention shall enter into force thirty days after
the receipt of the later of the notifications referred
to in paragraph 1. 3.
The provisions of this Convention shall have effect :
(a)
in India, in respect of income arising in any
fiscal year beginning on or after the first day of April
next following the calendar year in which the Convention
enters into force; and
(b)
in
(i)
in respect of income-tax and capital gains tax,
for any year of assessment beginning on or after the
sixth day of April in the year next following the date
on which this Convention enters into force;
(ii)
in respect of corporation tax, for any financial
year beginning on or after the first day of January in
the year next following the year in which this
Convention enters into force. ARTICLE
29 : Termination
- This Convention shall remain in force indefinitely
unless terminated by a
(a)
in
(b)
in
(i)
in respect of income-tax and capital gains tax,
for any year of assessment beginning on or after the
sixth day of April in the year next following the
calendar year in which the notice is given ;
(ii)
in respect of corporation tax, for any financial
year beginning on or after the first day of January next
following the calendar year in which the notice is
given. In
witness whereof the undersigned, being duly authorised
thereto, have signed this Convention. Done
in duplicate at New Delhi on this 6th day of November in
2000, in the Hindi and English languages, both the texts
being equally authentic. In case of divergence between
the two texts, the English text shall prevail. Protocol At
the signing of the Convention between the Government of
the With
reference to Articles 3 and 23 1.
Where a person resident in Ireland is a member of a
partnership which is resident in India and by virtue of
this Convention any profits, income or gains of the
partnership are relieved from tax in Ireland, the
Convention shall not affect any liability to tax in
Ireland of such person in respect of such person’s
share of any profits, income or gains of the
partnership; any such share of profits, income or gains
shall be treated for the purposes of Article 23 as
profits, income or gains from sources in India and the
appropriate part of the Indian tax borne by the
partnership shall be allowed as a credit against any
Irish tax computed by reference to the said share of the
profits, income or gains. With
reference to Article 7 2.
If, in accordance with the laws of a Contracting State,
profits are attributed to a permanent establishment of
an enterprise carrying on insurance business, 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; the
method of apportionment adopted shall, however, be such
that the result shall be in accordance with the
principles contained in Article 7. With
reference to Article 24 3.
The provisions of this Article shall not be construed as
preventing India from charging the profits of a
permanent establishment of an Irish company in India at
a rate of tax which is higher than that imposed on the
profits of a similar Indian company, nor as being in
conflict with the provisions of paragraph 3 of Article 7
of this Convention. With
reference to collection assistance 4.
It is understood that at the date of signature of this
Convention, the laws of In
witness whereof the undersigned, being duly authorised
thereto, have signed this Convention. Done
in duplicate at New Delhi on this 6th day of November in
2000, in the Hindi and English languages, both the texts
being equally authentic. In case of divergence between
the two texts, the English text shall prevail. Addendum
to notification 45/2002 [F. No. 503/6/99-ftd], dated
20-2-2002. In
the Notification No. 45/2002 of the Government of India,
in the Ministry of Finance (Department of Revenue),
Number G.S.R. 105(E), dated the 20th
February, 2002 published in the Gazette of India,
(Extraordinary), in Part-II, section 3, sub-section (i),
dated the 20th February, 2002, the Exchange
of Letters between the Indian and the Irish authorities
as annexed shall form part of the aforesaid
notification. Annexure The
Department of Foreign Affairs presents its compliments
to the Embassy of India and has the honour
to refer to the Convention between the Government of
Ireland and the Government of the Republic of India for
the Avoidance of Double Taxation and for the Prevention
of Fiscal Evasion with respect to Taxes on Income and on
Capital Gains which was signed in New Delhi on 6th
November, 2000 and ratified by the Government of the
Republic of India on November 9, 2000 and which has yet
to be ratified by the Irish Government, and to make, on
behalf of the Government of Ireland, the following
proposal for the purpose of its application. The
Government of Ireland proposes that the references in
Article 3(1)(ii) to “a year beginning with the
sixth day of April in one year and ending with the fifth
day of April in the following year” should read “the
calendar year”. The
Government of Ireland also proposes that the references
in article 28(3)(b)(i)
to “the sixth of April in the year next following”
should be read as “the first day of January in the
year next following”. By reason of the amendment, the
Convention between the Government of Ireland and the
Government of the Finally,
the Government of Ireland also proposes that the
references in Article 29(b)(i)
to “the sixth of April in the year next following”
should be read as “the first day of January in the
year next following”. If
the foregoing proposals are acceptable to the Government
of the Republic of India, the Department of Foreign
Affairs has the honour to
suggest that the present Note and the reply of the
Government of the Republic of India to that effect shall
be regarded as constituting an agreement between the two
Governments in this matter which shall enter into force
at the same time as the entry into force of the
Convention. The
Department of Foreign Affairs avails itself of this
opportunity to renew to the Embassy of India the
assurances of its highest consideration. The
Embassy of India, Dublin, presents its compliments to
the Department of Foreign Affairs of the Government of
Ireland and with reference to their Note Verbale
No. 348/764, dated 3rd September, 2001, regarding the
Convention for Avoidance of Double Taxation and the
Prevention of Fiscal Evasion, signed between India and
Ireland, has the honour to
convey that the concerned authorities in India have
informed that the Government of India has accepted the
amendments to the convention suggested by the Government
of Ireland vide the Note Verbale
under reference above. This
information may please be conveyed to the Department of
Revenue, Government of Ireland, so that these amendments
can come into effect from the date as stipulated in the
Note Verbale dated 3rd
September, 2001, from the esteemed Department. The
Embassy of India avails itself of this opportunity to
renew to the Department of Foreign Affairs, Government
of Ireland the assurances of its highest consideration. Notification
: No.
GSR 212(E), dated 19-3-2002. |
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