Union Cabinet approves revised Indo-Cyprus DTAA

Union Cabinet on 24 August 2016 approved the signing of an agreement and the protocol between the India and Cyprus for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income. The approval will help India in its fight against tax evasion, round tripping and base erosion/profit shifting. The approval will replace the existing Double Taxation

Avoidance Agreement (DTAA) that was signed between the two nations on 13 June 1994. 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. In other words, India will have the right to tax capital gains arising in India.

Provisions of the proposed DTAA

• It will align the applicable provisions with the consistent policy followed by India and the revised international standards.

• It will also prevent the abuse of beneficial provisions of the DTAA that can distort financial and real investment flows and create challenges in respect of tax collection.

• It provides for source based taxation of capital gains on transfer of shares, instead of residence based taxation as provided in the existing DTAA.

• The proposed DTAA also enables source based taxation of capital gains from transfer of shares of any company the property of which consists directly or indirectly principally of immovable property situated in a Contracting State.

• It includes a provision for Assistance in Collection of Taxes.

• It 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 expands the scope of the Permanent Establishments (PE) 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.

• Other provisions, including the provisions on Royalty, Fees for Technical Services, Artists and Sportspersons, Other Income, Mutual Agreement Procedure, Exchange of Information and definitions of relevant terms like Resident, Business Profits, Associated Enterprises, Dividend, Interest, have also been aligned with India’s consistent policy and International Standards accepted by India.

• The protocol to the agreement provides clarification about taxation of dividends in India that are subjected to dividend distribution tax.

• It clarifies that provisions on Assistance in Collection of Taxes shall not be construed to impose any obligation that is at variance with the laws, practices or public policy of a Contracting State.

• It 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.

However, the Protocol to the Agreement provides that the provisions of the proposed DTAA in respect of capital gains will not be applicable on shares acquired at any time prior to 1 April 2017.

The DTAA will enter into force on the date of the notification by the two countries (date of later notification), and shall have effect in India from 1 April 2017. The existing DTAA shall be terminated on the day the proposed DTAA comes into effect.

This step follows the recent amendment of DTAA with Mauritius. As in the case of Mauritius, the treaty with Cyprus had provided for residence-based taxation of capital gains.

The provisions in the earlier treaty for residence-based taxation were leading to distortion of financial and real investment flows by 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.

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