Skattenytt nr 3 1998 s. 126
The New Indo-Swedish Tax Treaty: An Indian Perspective
This article discusses, in brief, the new Indo-Swedish tax treaty, which was signed on 24 June 1997. It supercedes the earlier treaty of 7 June 1988. The formalities of ratification by the two governments having been completed, the treaty has come into force, on 25 December 1997. In India, the treaty applies in respect of the income arising in the financial year 1998–99 and in Sweden in respect of the income arising in the calendar year 1998. The Indian financial year begins on 1 April and ends on 31 March next. The income of the financial year, also known as the previous year or the accounting year, falls for assessment or audit in the immediately succeeding financial year called the assessment year or tax year. For brevity, only some selected important Articles of the tax treaty have been dealt with in this Article. Tax treaty Articles, which are of routine nature have not been commented upon.
India’s expanding treaty network
1. With the increasing volume of trade and business, India’s network of tax treaties have also expanded. As per Annual Report of Ministry of Finance for the Financial year 1996–97, India had tax treaties with 69 countries. The tax treaties in operation cover most of the countries of Asia, Europe and North America. Of these, 50 tax treaties are comprehensive, that is, they cover all categories of income including capital gains and, in some cases, extend to wealth tax as well. Tax treaties limited to air transport profits exist with 13 countries and those confined to shipping profits number six only.
Evolution of India’s tax treaties
2. India’s tax treaties have, broadly, evolved with the basic objectives of furthering the country’s enlightened self interest including its need to import capital and sophisticated or closely-held technology from developed countries. A significant shift in India’s approach to the drafting of tax treaties occurred in 1976 by which time the important developments described below had occurred. Generally, India’s tax treaties signed after 1976 may be categorised as ’new tax treaties’ while the pre-1976 treaties may be classified as ’old tax treaties’.
A conscious effort is visible in the texts of the new tax treaties which usually combine the provisions of the OECD and UN models. The new tax treaties have been drafted to incorporate the consequential effect of the following important developments in India’s domestic tax law brought about by the Finance Act 1976 with effect from 1 April 1976 and some subsequent Finance Acts.
The amendment of the source rules in sec 9 of the Income-tax Act 1961 (IT Act), regarding accrual or origin of income.
The introduction of the gross basis (without deduction of the expenses) of taxation of income from royalties, fees for technical services, dividends, and interest paid to non-residents.
The imposition of ceilings on the deductions of head of office expenditure of non-residents.
Reduction in rates of withholding tax for interest, dividend, royalty and fees for technical services.
The impact of the above and other developments on India’s tax treaties is particularly evident in the clauses relating to the definition of ’permanent establishment’ and the taxation of business income, royalties and similar payments.
Out of India’s 69 tax treaties, only treaties with 6 countries namely, Afghanistan, Austria, Egypt, Ethiopia, Greece and Iran are old tax treaties. The remaining 63 treaties are new tax treaties. Every year India is either entering into new tax treaties with new countries or re-negotiating its existing treaties.
Provisions of a tax treaty override the provisions of the IT Act
3. The widely recognised legal position in many countries is that when there is a conflict between the provisions of the domestic law and the provisions of the tax treaty, the provisions of the treaty will prevail.
In a recent case involving the tax treaty with the United Kingdom, the Calcutta High Court has held that in the event of inconsistency between the provisions of a tax treaty and the provisions of the IT Act, the provisions of the treaty will prevail. In a detailed judgement, the High Court referred to the preamble of the tax treaty and the relevant sections 4, 5 and 90 of the IT Act and observed that the treaty was concluded as a result of a conscious deviation from the general principles of taxation applicable under the domestic law and to ignore the provisions of the treaty will defeat the very purpose of entering into the tax treaty: Commissioner of income tax (CIT) v. Davy Ashmore India Ltd: (1991) 90 ITR p. 626 (Calcutta).
Important provisions of the Indo-Swedish tax treaty
4. In the light of the background of developments narrated in the preceding paragraphs, comments on some selected important Articles of the Indo-Swedish tax treaty may now be noted.
5. The taxes covered by the treaty are mentioned in Article 2. The Convention applies to taxes on income and on capital imposed by one of the countries irrespective of the manner in which they are levied. The existing Indian taxes mentioned in the Convention are (a) the income tax including the surcharge thereon and (b) tax on capital (wealth-tax).
Like single citizenship, India has a single national income tax. The maximum rate of income tax on non-resident individuals is the same as for the resident individuals, namely, 30 percent of the taxable income of Rs. 150,000 and above.
There is no surcharge on individuals. The rate of income tax on a foreign company is 48 percent of the total income. The rate on a widely held domestic company is 35 percent.
6. No surcharge is payable by non-residents and foreign companies. The surcharge has now been withdrawn completely and is not payable by any taxpayer, from the assessment year 1997–98 and subsequent years.
7. In India, widely-held companies are generally not subject to wealth-tax. Thus, widely-held foreign companies operating in India are exempt from wealth-tax.
Individuals pay wealth tax on their net wealth as of the last date of the accounting year, that is 31 March every year. Taxable net wealth is the value of total assets owned by the taxpayer, less debts, but there are several types of assets which are exempt from tax. Tax is payable at a flat rate of one (1) percent on the taxable wealth in excess of Rs. 150, 000.
Non-residents and non-citizens are exempt from tax on wealth located outside India. For a non-citizen who is non-resident in India, the tax on his net wealth located in India is charged at 50 % of the normal rate.
8. The term ’Republic of India’ as defined in Article 3 (a) of the Indo-Swedish tax Convention means the territory of India and includes the territorial sea and the air space above it as well as any other maritime zone in which India has sovereign rights, other rights and jurisdiction according to Indian law and in accordance with international law, including the UN Convention on the law of the Sea. Under sec 7(1) of the Indian Territorial Waters, Continental Shelf, Exclusive Economic Zone (EEZ) and other Maritime Zones Act, 1976 (Act No. 80 of 1976), India’s EEZ stretches up to 200 nautical miles from the baseline.
9. The concept of ’residence’ enunciated in Article 4 of the Indo-Swedish tax Convention generally means any person who under the law of the state concerned is liable to pay tax therein by reason of his domicile, residence, citizenship, place of management, place of incorporation or any other criterion of similar nature. In a situation where a person becomes a resident of both India and Sweden, tie-breaking rules are provided in Article 4 of the Convention to decide the issue.
Under the IT Act, income taxation does not depend on the citizenship or domicile of the taxpayer. Instead, it primarily depends on the mixture of taxation based on the residence of the taxpayer and the source of the income.
Under sec 6 of the IT Act, an individual is ’resident’ in India in any accounting year if
he is in India in that year for a period or an aggregate period of 182 days or more, or
he is in India for an aggregate period of 60 days or more in that year and has been in India for an aggregate period of 365 days or more during the preceding four years.
A company, whether incorporated in India or abroad, is resident in India in an accounting year if the control and management of its affairs are situated, during that year, wholly in India. A foreign company will almost invariably have some part of its control and management outside India, hence, it will inevitably be a non-resident.
A non-resident generally means a taxpayer who is not resident in India.
As a tax planning hint, Swedish taxpayers should note that it may so happen in some year that they may be resident both in India and Sweden. They can avoid such a situation by suitably planning their stay programme in India.
Text of resident under tax treaty prevails: Case Law
10. Two assessee (taxable) companies were non-resident shipping companies incorporated in Panama. Their only business was shipping. They entered into a management agreement with a Greek company, (H). According to the agreement, the entire affairs of the companies were managed by the said (H) as their general manager and agent.
The companies claimed the benefit of the tax treaty between India and Greece. Article II(1) (f) of the treaty provided that a company shall be regarded as a ’resident’ in Greece if its business is wholly managed and controlled in Greece.
The Assessing Officer did not treat the companies as resident in Greece within the meaning of Article 11 (1) (f).
The Income Tax Appellate Tribunal found that, for all practical purposes, the management and control of the companies were actually transferred to the Greek company, and the de facto control and management of the companies were actually vested in (H). Notwithstanding the aforesaid finding of fact, the Tribunal nevertheless decided the case against the companies. The Tribunal took the view that according to sec 6(3) of the IT Act, a company is resident in India, if inter alia, during that period, the control and management of its affairs were situated wholly in India.
The High Court held that the test of ’residence’ in the tax treaty should prevail. The requirement of Article II(1) (f) is that the business is wholly managed and controlled in Greece. The meaning of control and management is certainly different from the concept of ownership. The mere fact that the final accounts of the business were to be rendered to the companies and that (H) was only entitled to a commission, calculated at a certain rate with reference to the total freight collection, could not lead to the conclusion that the business of the companies was not wholly managed and controlled in Greece. Hence, pursuant to the tax treaty, the companies would be entitled to reduction of an amount equal to 50 % of tax charged. : Universal Cargo Carriers v. CIT: (1994) 205 ITR 215 (Calcutta).
11. The expression ’permanent establishment’ (PE) has been elaborately defined in Art 5 of the Indo-Swedish tax Convention.
The first part of the definition contains the general definition, namely, a fixed place of business through which the business of the enterprise is wholly or partly carried on.
The second part contains a list of specific examples of what constitutes a PE, probably because specific examples are easier to deal with than a more abstract general definition. Some of the specific examples are
a place of management
a mine, and
an oil well
The third part of the definition provides that a building site or construction project constitutes a PE only where such site or project continues for a period of more than six months.
The fourth and last portion of the definition provides exceptions by listing what does not constitute a PE, e.g.
a place for storage or display of goods
a place for advertisements, or
a place for supply of information for scientific research or other activities which are of a preparatory or auxiliary character.
The existence of a subsidiary company by itself does not make the subsidiary of a PE of its parent company. This is so because the subsidiary company is an independent legal entity. This rule also operates in respect of the activities between subsidiary companies of the same parent company.
12. The definition of a PE was considered by the Andhra Pradesh High Court in the leading case of Visakhapatnam Port Trust: (1983) 144 ITR 146: An agreement was signed between a German company and the Port Trust. The German company deputed an engineer to supervise the installation of the equipment, a steel plate fabricated and supplied by an independent Indian company. The assembly was to be done at the Port at the cost of the Port Trust. The Port Trust also had to provide the necessary labour for the assembly and pay the salary and travel expenses of the German Engineer. A portion for the payment for the equipment was to be made in German currency in Germany at the conclusion of the contract and the balance in 20 semi-annual instalments carrying interest of 6 % per annum.
The High Court had to interpret the general definition of a PE under the existing tax treaty with Germany according to which the installation project constituted a PE only if the project continued for a period of more than six months. The Court held that the German company did not have a fixed place of business in India. According to the court, the words ’permanent establishment’ postulate the existence of a substantial element of an enduring or permanent nature of a foreign enterprise in another country which can be attributed to a fixed place of business in that country, and should be of such a nature that it would amount to a virtual projection of the foreign enterprise into that country.
In arriving at its conclusion, the High Court also drew support from the following foreign decisions rendered under some specific bilateral tax treaties;
Judgement of Belgian Supreme Court on Franco-Belgian treaty published in Michael Edwardes Kerr’s Book ’International Tax Treaty Services’ 1978, Dublin.
Revenue Ruling No. 72-X-418 on the U.S.-German tax treaty.
13. The ’business profits’ Article 7 in India’s tax convention with Sweden provides that the business profits of an enterprise of the Contracting States shall be taxed only in the country of which the enterprise is a resident unless the enterprise carries on business through a permanent establishment situated in that country. This provision recognises the primacy of ’source taxation’ as compared to taxation on the basis of ’residence’.
Further, in the computation of business profits, specific recognition is given in Article 7(3) to the restrictions placed under the IT Act on the deduction of head of office expenses by a non-resident.
Check on transfer pricing abuses
14. Article 9 of the Indo-Swedish tax convention provides some safeguards against transfer pricing abuses. When an Indian subsidiary company enters into transactions with its foreign parent company and such transactions are not at arm’s length the profits of the subsidiary which are taxable in India may be artificially reduced. India may then take recourse to the relevant provisions of the IT Act and upwardly adjust the profits of the subsidiary. In that case, a form of double taxation may arise if the same profits are also taxed in Sweden. In such an event, a form of double taxation may arise if the same profits are also taxed in Sweden. In such a situation Sweden has to take appropriate steps to relieve the effect of taxation. If this does not happen, the company should make an application to the appropriate tax authorities in its own country to obtain relief from double taxation. The most common method of allocating the profit is the ’arm’s length approach’, although this approach can be very burdensome, time consuming and expensive, particularly when the stakes are high.
Head office expenditure
15. Non-residents carrying on any business or profession in India through their branches are entitled to a deduction in computing the taxable profits, in respect of general administrative expenses incurred by the foreign head offices in so far as such expenses can be related to their business or profession in India. In some cases the head office expenses of non-resident companies allocable to their Indian branches were inflated with a view to artificially reducing the incidence of Indian tax. In the case of a foreign bank, a claim of Rs. 10.5 million on account of head office expenses in one year was investigated. A sum of nearly one-third that is, RS. 3.5 million was found inadmissible. The bank accepted the finding. It was realised that it was extremely difficult to scrutinise and verify claims in respect of head office expenditure particularly in the absence of books of accounts of the head offices which were kept outside India. To overcome these difficulties, a new sec 44C, was added to the IT Act in 1976. Under the new sec 44C, for determining the profits of a PE (which includes a branch) business expenditure is deductible in accordance with and subject to, the limitations laid down in the domestic law of each country. One important limitation in India’s domestic tax law is the imposition of a restriction on the allowance of head office expenditure in the case of non-residents. Under sec 44C of the IT Act, the deduction in respect of head office expenses is limited to the lesser of the following -
an amount equal to 5 % of the adjusted total income of the taxpayer for the relevant year, or
the actual amount of head office expenses attributable to the business in India.
The restriction imposed by sec 44C of the IT Act has been incorporated in the Indo-Swedish tax convention (paragraph 3, Article 7).
The Reserve Bank of India allows remittance for head office expenses with reference to the amount admissible under the IT Act as attested by a Chartered Accountant.
16. The Calcutta High Court has held that the restriction imposed by sec 44C does not apply to a foreign company if its entire business operations are confined to India. The company’s entire business, consisting of a tea garden in India was carried out in India and only statutory functions were attended to at the head office in England.
17. Sec 9 of the IT Act contains specific source rules for the determination of Indian source income. Apart from income actually accruing or arising in India, income deemed to accrue or arise in India is also taxable. Under sec 9 of the IT Act, such deemed income is income which arises directly or indirectly -
through or from business connection in India,
through or from any property or source of income in India,
through the transfer of a capital asset situated in India, or
from salaries or services rendered in India.
18. In the Indo-Swedish tax convention, the concept of ’business connection’ is largely covered by the definition of PE in Article 5. The concept however still has some relevance when it does not fall under the definition of PE.
It is to be noted that ’business connection’ is not defined in the IT Act. However, its meaning has developed through a series of court decisions.
In the leading case of CIT v. RD Aggarwal & CO: (1965) 65 ITR 20 (SC), the Supreme Court of India explained that a ’business connection’ involves a relation between a business carried out by a non-resident which yields profits and some activity incidental to the business in India which contributes directly or indirectly to the earning of those profits. There must be an element of continuity between the business or the non-resident and the activity incidental to the business in India. A casual or isolated transaction may not be regarded as a business connection.
In CIT v. Dunlop Ltd (UK) :(1993)201 ITR 534: another important decision, the Calcutta High Court recently held that even if there is a business connection, no income is taxable in India if no business activities were carried out in India. A non-resident company entered into agreement with the West Bengal Industrial Development Corporation for setting up a factory for production of automotive tyres and tubes. The foreign company was to supply technical data for the construction of the factory in India and various items of plant and to send technical personnel to supervise the plant. In return, the foreign company received a certain amount of payment. The assessing officer taxed the payment received by the foreign company on the basis of the existence of a business connection.
The final fact finding authority, the income tax Appellate Tribunal found that no service whatsoever had been rendered by the foreign company to the Indian company in India.
The High Court held that it was bound by the Tribunal’s finding of fact. Therefore, even if the agreement constituted a bond between the foreign company and the Indian company which could be legitimately construed as a business connection, no part of the income flowing to the foreign company through this business connection would be taxable in India.
Tax treatment of royalties, fees for technical services, dividend and interest
19. Secs 9(10(iv)–(vii) of the IT Act deem the following categories of income paid to non-residents as accruing or arising in India irrespective of the actual place of their accrual or origin -
fees for technical services
Prior to 1976, royalties and similar payments received by foreign companies were taxed on a net basis. In 1976, a new sec 44D was inserted in the IT Act. It taxes such income on a gross basis, that is, without deduction of any expenses incurred for earning such income. The final withholding tax is levied at a concessional rate of -
20 % on royalties and fees for technical services and interest
Dividends paid by domestic companies on or after 1 June 1997 are exempt from tax.
Most of India’s tax treaties including the Indo-Swedish tax treaty, define the term ’royalties’ and ’fees for technical services’, to make the treaties self-contained. The treaty definition differ in some details with the definitions under the IT Act but their broad thrust is similar.
Some of India’s new tax treaties provide withholding tax on rates for royalties and similar payments which are lower than the rates provided in the IT Act. The Indo-Swedish tax treaty also provides tax rates lower than the domestic rates and the existing rates are tabulated as below -
10 % if beneficial owner of the interest is ’resident’ in Sweden
NIL (Exempt) if beneficial owner or interest is the Swedish government or a Swedish local authority, or interest is paid to the Swedish International Authority (SIDA) and some other specified or agreed Swedish financial institutions.
Royalties and fees for technical services.
10 % if the gross amount of royalties of fees for technical services.
10 % if beneficial owner of the dividends is a ’resident’ in Sweden.
Dividends paid by a domestic company in India on or after 1 June 1997 is exempt from tax according to the Finance Act 1997. As the provisions of the IT Act which are more favourable to the taxpayer as compared to the provisions of a tax treaty, dividends received from domestic companies in India on or after 1 June 1997 by all taxpayers including those from Sweden will be exempt from tax in India.
The lower tax rates on dividends, royalties and fees of technical services in the new Indo-Swedish tax treaty has a wider significance. It will encourage investments into India from some more member countries of the OECD. India has tax treaties with most of them. Some of these countries, e.g., The Netherlands, Norway, Spain and others, have secured a stipulation in their tax treaties with India to the effect that if the Indian government at a later date agrees upon lower rates of tax on royalty or fees for technical services with any member of the OECD, such lower rate shall apply in their case also. Thus, after coming into force of the Indo-Swedish tax treaty the lower rate of 10 % will also apply to these countries, instead of the existing rates varying from 15 % to 20 %.
Benefit of tax sparing
20. Like most of India’s new tax treaties Article 23 of the Indo-Swedish tax convention contains the important tax sparing provision. This Article provides that each country will give credit for the taxes spared or forgone by the other country (which is usually the developing country). Hence, under the provision, when the foreign investor investing in India claims a credit for taxes paid in India against the taxes payable by it in the home country, the home country will allow a credit for the taxes actually paid in India and for the taxes which it would have paid but for the tax concession and incentives in India granted for profits from industrial or manufacturing activities or from agriculture, fishing or tourism (including restaurants and hotels). However, Article 24 (d) of the Indo-Swedish tax treaty limits the tax sparing to a tax of 15 % calculated on the Swedish tax base to be considered to have been paid in India for such activities. The tax sparing provision ensures that the benefit of India’s tax concession and incentives are enjoyed to some extent by the Swedish investor and not passed on to the Swedish Treasury. To this end India has insisted on the inclusion of this provision; and it has succeeded in so doing in its new tax treaties including those with the member countries of the European Union. Article 24 (d) of the Indo-Swedish tax treaty authorize the competent authorities of the two countries to extend the application of this provision also to other activities.
The following sections of the IT Act provide substantial tax exemptions and/or concessions for some more categories of income -
Sec 10 (4)
: Income of a non-resident by way of interest on securities or bonds;
Sec 10 (4B)
: Income of a non-resident on specified saving certificates;
Sec 10 (5B)
: Income of a foreign technician;
: Interest payable by government and some others;
: Tax holiday for new industrial undertaking in free trade zones;
: Tax holiday for newly established 100 % export oriented undertakings;
: Tax development account;
: Earnings in convertible foreign exchange.
It is suggested that the provisions of the investor – friendly Article 24 (d) should be extended to these and other similar income earning activities wherever necessary.
Mutual agreement procedure: Article 26
21. India’s new tax treaty with Sweden, in common with international practice, contains a mutual agreement procedure provision (Article 26). An aggrieved taxpayer can refer the grievance arising from a tax treaty to the competent authority of his country who will take steps to resolve the dispute in consultation with the competent authority in the other country. The competent authorities for this purpose are designated by the contracting states.
The procedure for the resolution of disputes often proves unsatisfactory and is usually marred by delays. Because the procedure is not an alternative to the taxpayers’ rights of appeal under the domestic laws of the contracting states taxpayers very often also take recourse to courts of law where again the procedure is costly and time consuming.
Hence, the feasibility of referring disputes to an independent panel of Arbitrators deserves serious consideration. There is no clause in the Indo-Swedish tax treaty for the appointment of Arbitrators. It is suggested that such a provision should be included. Arbitration should prove efficacious particularly in disputes relating to -
the existence of a permanent establishment or fixed base,
the determination of profits attributable to a permanent establishment, and
adjustments in suspected transfer pricing cases.
22. Sweden, being an economically developed country, has an understandable preference for the OECD Treaty Model. India’s approach to bilateral tax treaties is to strike a middle path between the competing interests of rich and poor nations.
The new Indo-Swedish tax treaty is expected to help import of Swedish capital and sophisticated technology into India and export of more goods and merchandise to Sweden. In India, new opportunities are fast developing in many areas, for instance Ocean Development. The mine site of 150,000 km2 containing poly metallic modules in the Indian ocean, allotted to India for seabed mining is practically unexploited because India does not possess sophisticated technology. Investors from Sweden possessing advanced technology can enter into mutually profitable joint ventures with Indian parties. As this is a relatively new area there is scope for negotiating special rates for royalties or profit sharing and concessional rates of taxation.
The following suggestions made in this Article also need serious consideration when this treaty is taken up for review -
Extension of the tax sparing benefit to more income earning activities and whatever tax is spared in India should be deemed to have been paid fully in Sweden. It should not be limited to 15 % calculated on the Swedish tax base.
Reference of disputes to independent Panel of Arbitrators. For this purpose, an arbitration clause should be included in the tax treaty.
Mr Har Govind is an advocate in the Supreme Court of India and the Delhi High Court and is also a Business and Tax Consultant. His former functions include being the Chief Commissioner of Income tax and a member of the Income Tax Appellate Tribunal. He has also been the United Nations’ Consultant on the restructuring of the Iraqi tax regime and a panel consultant to the World Bank.