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23Information for citation:
Sengupta, D. P. (2020) Current trends in the development of case law on the resolution of cross-border tax disputes. European and Asian Law Review. 3 (2), 5-18.
UDC 336.227.1
BISAC LAW 086000 / Taxation DOI: 10.34076/27821668_2020_3_2_5
Research article
CURRENT TRENDS IN THE DEVELOPMENT OF CASE LAW ON THE RESOLUTION OF CROSS-BORDER TAX DISPUTES
DIKSHIT PRASAD SENGUPTA National Institute of Public Finance and Policy ORCID: 0000-0001-5843-5726
As economies become more and more integrated, disputes about interpretation are bound to increase. The problems get accentuated when revenue bodies charged with finding revenues come across obvious and often blatant but technically legal use of tax treaties and provisions of domestic laws. Some of these issues may be addressed in BEPS. However, the solutions may be more complicated and may require further elaboration and consensus building. Disputes will be there but the need is to manage the same. There is a need to look for common understanding of countries or groups of countries based on common interests to come to a common understanding on issues. Much greater interaction, particularly among the tax administrators, is therefore required. The author provides the analysis of the case law on the resolution of cross-border tax disputes. Judicial methods of tax treaties interpretation, disputes concerning the application of the concept of residence, judicial some of judicial approaches to the determination of the scope of tax treaties and procedural aspects of the application of tax treaties and anti-avoidance measures in cross-border situations are observed. The author analyses a huge number of Indian case law concerning the application of tax treaties and tax statutes. The author comes to the conclusion that in the emerging integration processes, problems related to taxation should be solved by states and groups of states together with the help of legal tools.
Key words: tax treaties, the BEPS plan, tax authorities, case law, judicial decision
Introduction
Judicial methods of interpretation of tax treaties
There are a plethora of case laws coming out of India in the area of international taxation and the number is only growing. Although some of these relate to the interpretation of the domestic tax law provisions relating to international taxation, quite a large number of cases involve tax treaties. While interpreting any provision it is also necessary to remember that under the Indian law, the taxpayer is entitled to choose between the domestic provision and the treaty provision whichever is beneficial to the taxpayer.
Under the Constitution of India, the Supreme Court ultimately lays down the law of the land. In the landmark case, Union of India vs. Azadi Bachao Andolan1, the Supreme Court of India has specifically dealt with the issue of interpretation of treaties and held that the principles adopted in interpretation of treaties are not the same as those in interpretation of statutory legislation.
1 Union of India vs. Azadi Bachao (2003-TII-02-SC-INTL).
Copyright© 2020. The Authors. Published by Ural State Law University.
This is an open access article distributed under the CC BY-NC 4.0. license http://creativecommons.org//license/by-nc/4.0/
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Materials and methods
The author used general scientific (analysis, deduction, induction) and specific scientific (legal interpretation) methods.
A summary of the principles of interpretation of tax treaties
Subsequently, the Mumbai Tribunal in the case of the Boston Consulting group1, summed up the principles of interpretation of tax treaties as enunciated by different courts in India as follows:
a tax Treaty is an agreement and not taxing statute, even though it is an agreement about how taxes are to be imposed. The principles adopted in the interpretation of statutory legislation are not applicable in interpretation of treaties.
a tax Treaty is to be interpreted in good faith in accordance with the ordinary meaning given to the Treaty in the context and in the light of its objects and purpose.
a tax Treaty is required to be interpreted as a whole, which essentially implies that the provisions of the Treaty are required to be construed in harmony with each other.
the words employed in the tax treaties not being those of a regular Parliamentary draughtsman, the words need not be examined in precise grammatical sense or in literal sense. Even departure from plain meaning of the language is permissible whenever context so requires, to avoid the absurdities and to interpret the Treaty ut res magis valeat quam pereat, i.e., in such a manner as to make it workable rather than redundant.
a literal or legalistic meaning must be avoided when the basic object of the Treaty might be defeated or frustrated insofar as particular items under consideration are concerned.
Reference to foreign court rulings
Indian Courts often refer to foreign court rulings, not as a binding precedent but as being of persuasive value, particularly on an aspect that has no precedence in India. In fact, the Azadi case itself referred to several foreign Court rulings in the context of the difference between tax planning and tax evasion.
Use of language in other tax treaties
As for the issue as to whether the illustrations given in a tax treaty to explain particular situations, can be used in another treaty context, there are two views. This is particularly relevant in the context of explaining the concept of 'fees for include services' as used in the India-USA and some other tax treaties. The concept of fees for included services is somewhat restricted than the term fees for technical services as found in most of India's other tax treaties. The India-USA tax treaty has given some examples to explain the concept2. Questions have arisen as to whether such examples in the India-USA tax treaty can be used for interpreting the term used in other treaties also. The Delhi High Court has used the example given in the India-USA treaty in the context of the India-Canada tax treaty as well3 (Merz, Overesch & Wamser, 2017: 14).
Applicability of the Vienna Convention
India has neither signed nor ratified the Vienna Convention. Nevertheless, Courts in India have occasionally referred to the said Convention.
Article 31, 'General Rule of Interpretation', of the Vienna Convention of the Law of Treaties, 1969 provides that a "treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." In this context, the Supreme Court of India, in the case of Ram Jethmalani vs. Union of India observed as follows:
1 Deputy Commissioner of Income Tax vs. Boston Consulting Group Pvt Ltd (2005-TII-06-ITAT-MUM-INTL).
2 The Memorandum of Understanding (MOU) of May 15, 1989 concerning Fees for Included Services in Article 12 (the India-U.S. Income Tax Treaty).
3 Director of Income Tax vs. SNC Lavalin International Inc. 2010-TII-28-HC-DEL-INTL.
Results
The results of the author's research are stated in conclusions.
Discussion
'While India is not a party to the Vienna Convention, it contains many principles of customary international law, and the principle of interpretation, of Article 31 of the Vienna Convention, provides a broad guideline as to what could be an appropriate manner of interpreting a treaty in the Indian context also'1.
While doing so, the Court also observed the government cannot bind India in a manner that derogates from Constitutional provisions, values and imperatives2.
Treaties are indirect enactments
In Union of India vs. Azadi Bachao Andolan3, the Supreme Court observed that a treaty is really an indirect enactment, instead of a substantive legislation, and that drafting of treaties is notoriously sloppy, whereby inconveniences obtain. In that view of the matter the words used in a treaty 'are to be given their general meaning, general to lawyer and layman alike....The meaning of the diplomat rather than the lawyer'.
According to the Supreme Court the broad principle of interpretation, with respect to treaties, and provisions therein, would be that ordinary meanings of words be given effect to, unless the context requires or otherwise.
However, the fact that such treaties are drafted by diplomats, and not lawyers, leading to sloppiness in drafting also implies that care has to be taken to not render any word, phrase, or sentence redundant, especially where rendering of such word, phrase or sentence redundant would lead to a manifestly absurd situation, particularly from a constitutional perspective.
Impact of the Commentaries
The first reference to Commentaries is found in the case of Visakahapatnam Port trust. In this case, the High Court observed the importance of the then prevailing OECD Model and the emergence of an international tax language in the following words4:
'In view of the standard OECD Models which are being used in various countries, a new area of genuine 'international tax law' is now in the process of developing. Any person interpreting a tax treaty must now consider decisions and rulings world-wide relating to similar treaties. The maintenance of uniformity in the interpretation of a rule after its international adaptation is just as important as the initial removal of divergences. Therefore, the judgments rendered by courts in other countries or rulings given by other tax authorities would be relevant'.
Subsequently, in the Azadi Bacahao-case, the Supreme Court relied on OECD MC for interpreting the expression 'liable to taxation' in the India-Mauritius ta treaty and held that the term should not be equated with actual payment of taxes.
The courts in India continue to rely on the Commentaries more as an aid to interpretation. However, the commentaries are really not binding on the courts. In fact, the Supreme Court in another case, in the context of interpreting the expression 'may be taxed' has held as follows:
'Taxation policy is within the power of the Government and Section 90 of the Income Tax Act enables the Government to formulate its policy through treaties entered into by it and even such treaty treats the fiscal domicile in one State or the other and thus prevails over the other provisions of the Income Tax Act, it would be unnecessary to refer to the terms addressed in OECD or in any of the decisions of foreign jurisdiction or in any other agreements'5.
Relating to the use of Commentaries for the purpose of interpretation, the Income Tax Appellate Tribunal, in another case, however, took the extreme view that OECD commentary is contemporaneous exposition of law even when India is not a member of the OECD6 (Yapar, Bayrakdar & Yapar, 2015: 642).
As for the reliance on the UN Model, we also find some cases making reference to the same. For instance, in the case of a shipping company that used to ply between India and Cyprus, the Tribunal while interpreting the expression 'more than casual' in the relevant treaty, referred to the Commentary of the
1 Ram Jethmalani vs. Union of India. 2011-TII-05-SC-INTL.
2 Union of India vs. Azadi Bachao. 2003-TII-02-SC-INTL.
3 Union of India vs. Azadi Bachao. 2003-TII-02-SC-INTL.
4 Commissioner of Income Tax vs. Visakahapatnam Port trust. 2003-TII-14-HC-AP-INTL.
5 Commissioner of Income Tax vs. P.V.A.L Kulandagan Chettiar (2004-TII-01-SC-INTL).
6 Graphite India Ltd vs. DCIT (2003-TII-59-ITAT-K0L-INTL).
UN Model to hold that merely because ship visits ports as and when required it cannot be said that the operation was no more than casual1.
Effect of India's positions
India is not a member of the OECD. Therefore, the OECD Commentary is really not binding on the tax administration and the Indian Courts. India, of course, became an observer in the OECD CFA in 2006 and at that time India was invited to state its position on the OECD Model and its commentaries. India's position appeared for the first time in the 2008 version of the OECD Model and there were many disagreements between the OECD view and India's views, particularly in the area of digital economy. In this connection, questions have arisen as to whether the view expressed in the Commentary can be followed. Here also we find that there are two views.
In a case regarding the characterisation of consideration received for the transfer of packaged software, the Judgement mentions India's position that India does not accept the OECD position in this regard and accordingly, the same was treated as royalty2.
A contrary view can be found in another case involving the characterization of online advertisement revenue3. In this case, the Tribunal, following the OECD Commentary held that online advertisement revenue cannot be taxed in the absence of a fixed place PE and that a website is not a PE and that India's Position to the contrary relevant only in respect of treaties entered into after July 2008 when India stated its position.
Disputes concerning the application of the concept of residence
Residence of Individuals
Section 6 of the Income Tax Act, 1961 (ITA) defines residence. In so far as individuals are concerned, presently, the residence in India is determined solely on the presence of the Indiavidual in India. Most of the disputes in relation to residence therefore relates to the manner of calculation of the period of stay of the individual in India. Normally, the day of arrival and departure are also taken into account. However, in one case, the Tribunal pointed out that as per the General clauses Act, the first in a series of a day is to be excluded if the word 'from' is used and hence the words 'from' and 'to' are to be inevitably used when ascertaining the period, despite the fact that these words are not mentioned in the Statute.Therefore, the day of the arrival was excluded4.
Concept of residence
Residence is not defined in the treaty. Hence the domestic definition of residence becomes important. In India, residence is defined in section 6 of the Income Tax Act:
'For the purposes of this Act,
(i) An individual is said to be resident in India in any previous year, if he is in India in that year for a period or periods amounting in all to one hundred and eighty-two days or more'.
Forced stay
An interesting question arose as to what happens when the passport of a person is confiscated and he cannot leave India. The Delhi High Court in such a case held that the Income Tax Act leaves the choice to the citizen to be in India and be treated as a resident for purposes of taxation or be not in India so as to avail the status of a non-resident5.
It naturally follows that the option to be in India, or the period for which an Indian citizen desires to be here is a matter of his discretion. Conversely put, presence in India against the will or without the consent of the citizen, should not ordinarily be counted adverse to his chosen course or interest, particularly if it is brought about under compulsion or involuntarily.
There has to be, something to show that an individual intended or had the animus of residing in India for the minimum prescribed duration. If the record indicates that - such as, for instance, omission to take steps to go abroad, the stay can well be treated as disclosing an intention to be a resident Indian. Equally, if
1 James Macintosh & Co Pvt Ltd vs. ACIT (2005-TII-08-ITAT-MUM-INTL).
2 Gracemac corporation vs. ADIT (2010-TII-141-DEL-INTL).
3 Income Tax Officer vs. Right Florist (2013-TII-ITAT-K0L-INTL).
4 Manoj Kumar Reddy Nare vs. Income Tax Officer (2009-TII-58-ITAT-BANG-NRI).
5 CIT vs. Suresh Nanda (2015-TII-41-HC-DEL-INTL).
the record discloses materials that the stay (to qualify as resident Indian) lacked volition and was compelled by external circumstances beyond the individual's control, she or he cannot be treated as a resident Indian.
Corporate residence
There have been some cases relating to corporate residence as well. Till recently, section 6 of the ITA defined the corporate residence as follows:
A company is said to be resident in India in any previous year, if it is an Indian company; or during that year, the control and management of its affairs is situated wholly in India.
Thus, unless a company is incorporated in India, it could be resident in India only if its control and management was 'wholly' in India (Hines, 2015: 946).
In one case the tax officer found that an Indian individual held 99 out of 100 shares of Singapore incorporated company that had no employee in Singapore, the address the company operated from was in Delhi, all the investments were made in group companies in India and the source of investment was also from India (Merz, Overesch & Wamser, 2017: 14). The minutes of the meeting of the Board of directors was produced. But the tax officer, on an examination of the passport of the individual found that he was present in India when the meeting was supposed to have taken place. He therefore held that it was a mere paper company formed for routing investments in India and that in any case the control and management of the company was wholly in India. On appeal, the Tribunal however held that the other director never visited India and hence it could not be said that any meeting of the Board of directors took place in India and even if one of board meetings be considered to have been held in India that does not negate the position that meeting of the Board of directors are held in Singapore. The Tribunal held that the provision of section 6(3) (ii) relating to the control and management of the company being 'wholly' situated in India is not satisfied in the case1.
Change in the recent budget, 201:
Considering the growing practice of forming paper companies abroad, there has been a change in the definition and now a company is resident in India if it is an Indian company or its place of effective management during the year is in India. The provision will be effective from 1st April, 2017.
Judicial approaches to the determination of the scope of tax treaties
Liable to pay
A person resident of either of the contracting states will be entitled to the benefits of the treaty and, to be a resident, one must be 'liable to tax' by virtue of domicile, residence or similar criterion. Most of India's treaties have this standard formulation. Some older treaties still make reference to citizens. Questions often arise in the context of India's treaties with UAE/Qatar/Oman where there are no taxes on income as to whether a resident of such country should get the benefits. The question was first examined by the AAR in the case of Mohsinally Ali Mohammad Rafik, an Indian citizen resident of UAE2. It was held that he was a resident of UAE. Subsequently, in the case of Cyril Eugene Pereira's case, similar issue arose for determination by the AAR again3. This time, the AAR took the view that individuals domiciled in UAE would not be tax residents of UAE since they do not pay any tax in UAE.
In Azadi, one of the arguments taken before the SC was that the conduit companies not being liable to pay any tax in Mauritius would not be entitled to the benefits of the indo-Mauritius treaty. The decision of the AAR in Cyril Pereira's case was pressed into service, but the Supreme Court refused to be persuaded by the same. The ratio laid down was that 'liable to tax' is not the same as payment of tax.
The same issue again came up before the authority in Abdul Razak A Meman4. This time the AAR examined the issue comprehensively in the light of certain observations of the Supreme Court in the Azadi case that said that the words 'liable to taxation' were intended to act as words of limitation.
The AAR concluded that the individual resident in UAE was not a tax resident of UAE within the meaning of Art 4 and hence was not entitled to the treaty benefits. In coming to the conclusion, the AAR also referred to the travaux preparatoires and the fact that when the treaty was being negotiated, UAE was supposed to introduce income taxation under commitment to the IMF.
1 Radharani Holding (P) Ltd vs. ADIT (2007-TII-ITAT-DEL-INTL).
2 Mohsinally Ali Mohammad Rafik (2002-TII-40-ARA-INTL).
3 Cyril Eugene Pereira (2002-TII-31-ARA-INTL).
4 Abdul Razak A Meman (2005-TII-09-ARA-INTL).
A similar issue involving a shipping line based in UAE in the case of Assistant Director of Income Tax vs. Green Emirates Shipping and Travels came up before the Mumbai Bench of the ITAT1. The question was whether the shipping line would be entitled to the treaty benefits of Art.8 of the India-UAE DTAA. The Tribunal, however, relying on some parts of the observations of the Supreme Court in the same Azadi case, came to the exactly opposite view and held as follows:
'....we are of the considered opinion that being 'liable to tax' in the Contracting State does not necessarily imply that the person should actually be liable to tax in that Contracting State by virtue of an existing legal provision but would also cover the cases where that other Contracting State has the right to tax such persons irrespective of whether or not such a right is exercised by the Contracting State.'
It may be noted that subsequent to the ruling of the AAR in Abdul Razak case, the treaty with UAE has been amended and the language has now been changed as follows:
'1. For the purposes of this Agreement the term 'resident of a Contracting State' means:
(a) in the case of India: any person who, under the laws of India, is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature. This term, however, does not include any person who is liable to tax in India in respect only of income from sources in India; and
(b) in the case of the United Arab Emirates: an individual who is present in the UAE for a period or periods totalling in the aggregate at least 183 days in the calendar year concerned, and a company which is incorporated in the UAE and which is managed and controlled wholly in UAE'.
Transparent partnership - Two views
Entitled to treaty benefits Lniklaters LLP2-(ITAT-Mumbai).
The taxpayer, a UK-based partnership firm provided legal services to its clients from outside India, specifically from its London office. Although it did not have a PE in India, at times the partners and staff of the firm visited India. It was not taxable in its own right in the United Kingdom. The assessing authority held that there was a service PE for the taxpayer in India. On appeal, an issue considered by the Tribunal was whether the UK partnership - not being liable to tax in the United Kingdom - would be entitled to benefits under the India-United Kingdom tax treaty. In this regard, the Tribunal pointed out that in terms of paragraph 40 of the OECD partnership report, when partnership firm is not taxable in the residence in its own right, the treaty entitlements to the firm are to be denied. However, in the same report, the OECD recommends that, in such a situation, the treaty benefits should accrue to the partners in the partnership firm. However, that is a solution rejected by India by stating its position to the effect that this result is only possible, to a certain extent, if provisions to that effect are included in the convention entered into with the State where the partnership is situated.
In this situation, the Tribunal held that the taxpayer was indeed eligible to the benefits of India UK tax treaty, as long as entire profits of the partnership firm are taxed in UK - whether in the hands of the partnership firm though the taxable income is determined in relation to the personal characteristics of the partners, or in the hands of the partners directly.
Not entitled to treaty benefits-Schellenberg Wittmer3 (AAR).
However, in another case, also of a law firm, the AAR took a different view. Schellenberg Wittmer is a Swiss law firm all the partners of which were tax residents of Switzerland. It was engaged by Siemens India in a dispute with an Indian company. Except for a site visit and an adjudication hearing in Mumbai no other activity was carried on in India by the law firm. It filed an application before the AAR to ascertain whether the fees for legal services would be chargeable to tax in India. Under Swiss law, a partnership is a transparent entity.
Relying on the OECD report, The Application of OECD Model Convention to Partnerships, it was argued that the partners would be entitled to the benefit of the Convention. In this connection, the AAR held:
'Admittedly, India not a member of the OECD countries has not agreed to this and has adopted the position that it can be so, only if provisions to that effect are included in the Convention entered into with
1 Assistant Director of Income Tax vs. Green Emirates Shipping and Travels (2006-TII-09-ITAT-MUM-INTL).
2 Linklaters LLP vs. Income Tax Officer (2010-TII-80-ITAT-MUM-INTL).
3 Schellenberg Wittmer (2012-TII-41-ARA-INTL).
the State where the partnership is situated. Clearly, there is no such provision in the present DTAC (Jain, 2018: 245). The argument that the partners are residents of Switzerland and their incomes from the partnership are taxable in Switzerland is of no avail since what is involved is not the income, the partners receive from the partnership but the income derived by the firm from an Indian entity'.
Disputes concerning procedural aspects of the application of tax treaties
Tax Residency Certificate (TRC)
Till recently, there was no statutory requirement for taxpayers to file a tax residency certificate to claim the benefits of a tax treaty. However, in the context of the India-Mauritius tax treaty, the Central Board of Direct Taxes had issued a circular clarified that wherever a certificate of residence is issued by the Mauritian authorities, such certificate will constitute sufficient evidence for accepting the status of residence as well as beneficial ownership for applying the DTAC accordingly1. The validity of the circular was challenged but was upheld by the Supreme Court in the Azadi case2 (Saez & Stantcheva, 2018: 120).
However, having noticed that in many instances the taxpayers who are not tax resident of a contracting country do claim benefit under the DTAA entered into by the Government with that country and even third party residents claim unintended treaty benefits, the Finance Act, 2012 had introduced an amendment in Section 90 by incorporating a new sub-Section 43. Read plainly, the provision says that a non-resident wishing to avail of the benefits of a tax treaty has to submit a tax residency certificate containing certain prescribed particulars.
Budget 2013 omitted the reference to the certificate being in prescribed form but introduced another sub-section in section 90 as follows:
'(5) The certificate of being a resident in a country outside India or specified territory outside India, as the case may be, referred to in sub-section (4), shall be necessary but not a sufficient condition for claiming any relief under the agreement referred to therein'.
However, considering the apprehension expressed by some that the language could mean that the Tax Residency Certificate produced by a resident of a contracting state could be questioned by the Income Tax Authorities in India, the CBDT issued a press note clarifying: '... The Tax Residency Certificate produced by a resident of a contracting state will be accepted as evidence that he is a resident of that contracting state and the Income Tax Authorities in India will not go behind the TRC and question his resident status'. Thus TRC given by foreign tax authorities cannot be ignored (Devereux, Fuest & Lockwood, 2015: 83).
In the context of filing TRC and other procedural details, we may note a recent decision of the Mumbai Tribunal4.
Taxpayers while filing return of income have to submit details in respect of income to be taxed at special rate (Part SI of the Return form). In this case, the taxpayer, a resident of Cyprus did not fill up that portion. In this case, the taxpayer had earned interest from Compulsorily Convertible Debentures and claimed the interest to be taxable at the concessional rate of 10 % under Article 11(2) of the India-Cyprus tax treaty. The taxpayer had submitted a TRC from the Cypriot tax authorities. The taxpayer's claim was accepted in the earlier tax year. In such circumstances, the Tribunal held that not filling in the relevant part of the return of income in this case was an inadvertent omission and the approach of the tax authorities was overtechnical and untenable.
Foreign tax credit
There is a provision of unilateral credit available u/s 91of ITA. Here the taxpayer must pay first and then claim credit. Treaties normally provide ordinary credit on a per country basis. India did not have detailed foreign tax credit rules. Recently, however, the rules have been notified. There have also been
1 Circular of the Central Board of Direct Taxes No. 789 dated. 13.04.2000.
2 Union of India vs. Azadi Bachao (2003-TII-02-SC-INTL).
3 The exact provision reads as follows: '(4) An assessee, not being a resident, to whom an agreement referred to in sub-section (1) applies, shall not be entitled to claim any relief under such agreement unless a certificate, containing such particulars as may be prescribed, of his being a resident in any country outside India or specified territory outside India, as the case may be, is obtained by him from the Government of that country or specified territory'.
4 Pramerica ASPF II Cyprus Holding Ltd (2016-TII-49-ITAT-MUM-INTL).
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some disputes relating to foreign tax credit. One such case is discussed that combines the treaty tax credit with the unilateral tax credit.
WIPRO engaged in export of software services, had branches in USA/Canada and other countries for rendering onsite. It paid taxes in the USA both at the federal and state level. It gets exemption of its income under the STPA scheme for a number of years under section 10A of the ITA. The tax authorities denied its claim of tax credit1.
The HC examined the charging provision as well as section 90 and held that the income though exempt for some years under the provisions of the Act, qualifies as 'income chargeable to tax'. However, the relevant provision of the treaty has to be examined.
In respect of India-USA treaty, the provision was:
'25(2).(a) Where a resident of India derives income which, in accordance with the provisions of this Convention, may be taxed in the United States, India shall allow as a deduction from the tax on the income of that resident an amount equal to the income-tax paid in the United States, whether directly or by deduction. Such deduction shall not, however, exceed that part of the income-tax (as computed before the deduction is given) which is attributable to the income which may be taxed in the United States'.
The High Court pointed out that Income tax paid in India is not a condition precedent. This can be compared with the India-Canada tax treaty where the relevant provision is as follows:
Thus, in the case of this tax treaty Income has to be subjected to tax both in Canada and India before the tax credit can be claimed.
The Court then pointed out the following provision of unilateral credit that is available under the ITA.
'91(1) If any person who is resident in India in any previous year proves that, in respect of his income which accrued or arose during that previous year outside India (...), he has paid in any country with which there is no agreement under section 90 for the relief or avoidance of double taxation, income-tax, by deduction or otherwise, under the law in force in that country, he shall be entitled to the deduction from the Indian income-tax payable by him of a sum calculated on such doubly taxed income at the Indian rate of tax or the rate of tax of the said country whichever is the lower, or at the Indian rate of tax if both the rates are equal'.
Explanation - (iv) the expression 'income tax' in relation to any country includes any excess profits tax or business profits tax charged on the profits by the Government of any part of that country or a local authority in that country.
The Court explained that the Income Tax in relation to any Country includes Income Tax paid in any part of the country or a local authority. It applies to cases where in a Federal structure a citizen is made to pay Federal Income tax and also the State Income Tax.
Therefore, even in the absence of an agreement under Section 90 of the Act, by virtue of the statutory provision, the benefit conferred under Section 91 of the Act is extended to the income tax paid in foreign jurisdictions.
Thus even though, India has not entered into any agreement with the State of a Country and if the taxpayer has paid income tax to that State, the income tax paid in relation to that State is also eligible for being given credit to the taxpayer in India.
Disputes concerning the application of anti-avoidance measures in cross-border situations
GAAR in India
It is common knowledge that there has been massive treaty abuse particularly involving India's tax treaties with Mauritius, Singapore and UAE. The government has also vacillated in taking stern measures considering the potential impact of such measures on the foreign investment scenario. A GAAR provision was proposed in the direct tax code bill in 2009. But, the same did not materialize. Finally, as a reaction to the judgement of the Supreme Court in the famous Vodafone case, wherein the Court had upheld the indirect transfer of important Indian assets through the transfer of share of subsidiary abroad, in the budget of 2012, a new chapter X-A containing sections 95 to 102 was introduced. However, there was strong resistance from the investor community and the actual provisions keep getting postponed. Having introduced the provision, the government subsequently had the same examined by a committee and subsequently some changes were made in the proposed legislation. The provision is still to come into force and, if not
1 WIPRO vs. DCIT (2015-TII-66-HC-KAR-INTL).
further postponed will apply in respect of transactions taking place after 1.4.2017. There is still resistance in certain quarters against the adoption of the GAAR that overrides tax treaties and one is not sure what the ultimate contours of the provisions will be.
Very briefly, as per the law as it exists today, an impermissible avoidance arrangement means an arrangement that main purpose of which is to create rights or obligations which are not ordinarily created between parties dealing at arm's length, results in the misuse or abuse of the provisions of the Act, or lacks commercial substance or are entered into or carried out in a manner that are not ordinarily employed for bona fide purposes (Section 96 of the ITA). The consequences of finding such impermissible avoidance arrangement are mentioned in section 98 and may involve re-characterization of the same or limit the tax benefit. Thus, any equity may be treated as debt or vice versa, a receipt of capital nature may be treated as of revenue or vice versa or any expenditure, deduction or relief may be re-characterized.
However, as mentioned earlier, the provisions are yet to come into effect and hence there are no cases regarding the application of the GAARs.
Judicial anti avoidance rule
In so far as judicial anti-avoidance rule is concerned, Courts in India were generally following the Ramsay principle. Then came the McDowell case1 that was an articulation by the Supreme Court of India in the matter of tax avoidance and tax planning. The McDowell case essentially involved determination of the question as to whether for the purpose of the levy of sales tax, turnover should include excise duty paid. Justice Ranganath Mishra on behalf of himself and four other judges wrote the main judgment (RM judgment). There was also a separate concurring judgment by Justice Chinappa Reddy on the issue of tax avoidance, tax planning etc. The essential argument of the taxpayer in the McDowell case was that when under an arrangement, the buyers pay the excise duty, the same does not become part of the turnover of the manufacturer seller and consequently no sales tax is payable on the same.
The RM judgment states in paragraph 45 that: 'Tax planning may be legitimate provided it is within the framework of law. Colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to avoid the payment of tax by resorting to dubious methods. ....And then in paragraph 46, it says: „On this aspect one of us, Chinappa Reddy, J., has proposed a separate and detailed opinion with which we agree"' (Hines, 2015: 946).
Justice Reddy, in his separate judgement, while recounting the evil consequences of tax avoidance, at para 17 says: '... In our view, the proper way to construe a taxing statute, while considering a device to avoid tax, is not to ask whether the provisions should be construed literally or liberally, nor whether the transaction is not unreal and not prohibited by the statute, but whether the transaction is a device to avoid tax, and whether the transaction is such that the judicial process may accord approval to it...'.
And, what is more important and is seldom articulated: 'It is neither fair nor desirable to expect the legislature to intervene and take care of every device and scheme to avoid taxation. It is up to the Court to take stock to determine the nature of the new and sophisticated legal devices to avoid tax and consider whether the situation created by the devices could be related to the existing legislation with the aid of 'emerging' techniques of interpretation (as) was done in Ramsay, Burma or and Dawson, to expose the devices for what they really are and to refuse to give judicial benediction' (Paragraph 18).
However in the Azadi case2 the Supreme Court differed from the observations made in McDowell. The Court isolated the observations of Justice Chinappa Reddy and said that the majority of the judges did not share his view. However, the Supreme Court also said that the government might resort to legislation if it thinks it fit and necessary.
Principles laid down in the Vodafone case3
The Vodafone case essentially involved the question of the liability of a foreign company (Vodafone) to withhold taxes from the payments made to another foreign company (Hutchison) for the acquisition of the telecom business of Hutchison in India. This was also not a case involving any treaty country. However, in the process of deciding the issue, the Supreme Court while overturning the order of the Bombay High Court, has touched upon a host of issues including one concerning form and substance.
1 McDowell and Co Ltd vs. CTO (2002-TIOL-40-SC-CT).
2 Union of India vs. Azadi Bachao (2003-TII-02-SC-INTL).
3 Vodafone International Holdings BV vs. Union of India (2012-TII-01-SC-LB-INTL).
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The Court held that in the application of a judicial anti-avoidance rule, 'the Revenue may invoke the 'substance over form' principle or 'piercing the corporate veil' test only after it is able to establish on the basis of the facts and circumstances surrounding the transaction that the impugned transaction is a sham or tax avoidant.
To give an example, if a structure is used for circular trading or round tripping or to pay bribes then such transactions, though having a legal form, should be discarded by applying the test of fiscal nullity. Similarly, in a case where the Revenue finds that in a Holding Structure an entity which has no commercial/ business substance has been interposed only to avoid tax then in such cases applying the test of fiscal nullity it would be open to the Revenue to discard such interpositioning of that entity. However, this has to be done at the threshold. In this connection, we may reiterate the 'look at' principle enunciated in Ramsay (supra) in which it was held that the Revenue or the Court must look at a document or a transaction in a context to which it properly belongs to. It is the task of the Revenue/Court to ascertain the legal nature of the transaction and while doing so it has to look at the entire transaction as a whole and not to adopt a dissecting approach. The Revenue cannot start with the question as to whether the impugned transaction is a tax deferment/saving device but that it should apply the 'look at' test to ascertain its true legal nature See Craven v. White (supra) which further observed that genuine strategic tax planning has not been abandoned by any decision of the English Courts till date.'
The Sanofi Pasteur case1
As mentioned above, the Vodafone case involved indirect transfer of underlying assets in India by transfer of shares of a company registered abroad. The Supreme Court of India having decided in favour of the taxpayer, the Government in 2012, introduced some retrospective amendments in the domestic law that now allow the taxation of gains arising from such transfers in India. Subsequently, in another case, more or less the same issue arose before the Andhra Pradesh High Court in the case of Sanofi Pateur Holding.
The difference was that the Vodafone case did not involve any tax treaty whereas the Sanofi case involved the tax treaty between India and France.
The High Court did not accept the tax department's contention that in the facts of the case, there was any tax avoidance and also pointed out that despite the retrospective amendment in the domestic law, in the absence of a non-obstante clause overriding the provisions of a tax treaty, the treaty provisions will prevail and the taxing rights from the transfer of the shares were with France (Johannesen, 2014: 42).
Disputes concerning taxation of passive incomes:
Besix Kier Dabhol case2
Besix Kier Dabhol is a Belgium based company whose sole business was carrying out a project for construction of fuel jetty near Dabhol. Its equity capital was divided in the ratio of 60:40 between two joint venture partners N V Besix SA of Belgium and Kier International (Investment) Limited of the U.K. The taxpayer also borrowed from its shareholders in the same ratio as the equity share holding amount of INR 570 million from NV Basix SA and INR 370 million from Kier International. The loan was apparently borrowed by the Indian Permanent Establishment directly from the shareholders and was not routed through the head office. The taxpayer's equity capital was only INR 3.8 million and debt capital was INR 941million giving a debt equity ratio of 248:1. It paid interest of INR 57.3 million on the borrowing (Saez & Stantcheva, 2018: 120).
The assessing authority noted that the company has no reserves, no provisions, no financial debts, no financial assets, no assets anywhere in the world except in India, that it had a debt equity ratio of 248: whereas debt equity ratio of shareholder companies was not furnished and that the ratio of borrowings was the same as of the equity capital. Accordingly, he considered the interest as payment to self and disallowed the claim.
On appeal, the Tribunal held that a company and its shareholders have separate existence, that the contracts between a company and its shareholders are just as enforceable as contracts with any independent person, and that, therefore, interest paid to the shareholder can only be treated as interest paid to independent outside parties.
1 Sanofi Pasteur Holding SA vs. Department of Revenue (2013-TII-HC-AP-INTL).
2 Besix Kier Dabhol SA vs. DDIT (2010-TII-158-MUM-INTL).
The Tribunal pointed out that the tax treatment being given to the equity capital and debt capital being fundamentally different, it is often more advantageous in international context to arrange financing of a company by loan rather than by equity. While acknowledging that it does affect the legitimate tax revenues of the source country in which business is carried out in the absence of 'thin capitalization rules' in India the interest had to be allowed.
Zaheer Mauritius case1
Zaheer Mauritius (ZM) was a company incorporated in Mauritius. Vatika, a real estate company in India formed a Joint venture company in which, in terms of a shareholders agreement (SHA), ZM invested by subscribing to equity shares and compulsorily convertible debentures (CCDs) issued by the JV Company. The SHA also gave a put option to ZM to sell its securities and a call option to Vatika to acquire securities from ZM. Vatika exercised its call option and bought all the CCDs from ZM. The tax department took the view that the gains would be taxable as interest subject to withholding @20 % (Sikka 2017: 390).
ZM filed for a ruling before India's authority for advance ruling (AAR) claiming that the gains should be treated as capital gains not taxable in India in view of the India-Mauritius tax treaty. The AAR held that the gains would be taxable as interest on the ground that there was a fixed rate of return on investment; that the JV Company's affairs were controlled by Vatika and that the transactions were structured to avoid tax.
On a writ filed against the AAR's order, the Delhi High Court held that the gains arising on transfer of a debenture held as a capital asset should be treated as capital gains. It held that it is a common practice to include in JV agreements provisions for buying each other's interest. The court pointed out that if the gains were to be treated as interest, that would be a deductible expenditure in the hands of Vatika and hence it would be wrong to presume that the transaction was entered into for tax avoidance.
Siemens Ltd2 case in the context of FTS
As has been mentioned earlier, India's treaties normally contain a provision relating to secondary source country taxation of fees for technical services. The definition of the term also seen many disputes. We discuss one case here where the court has imported a further condition restricting source country taxation.
In pursuance of its tender formalities with the Gujarat Energy Transmission Corporation Ltd and Maharashtra State Electricity Transmission Company Ltd, Siemens Ltd was required to obtain type-testing certificate of the circuit breakers manufactured by it. For this purpose it had sent the circuit breakers to be tested in the Laboratory of one 'Pehla Testing Laboratory', Germany where the circuit breakers had to undergo destructive tests in the Laboratories. Once the circuit breakers pass through the test in the Laboratories, PTL gives a certificate for the quality of the product manufactured by assessee. The taxpayer was required to make payment to PTL, Germany for carrying out the type tests of the circuit breakers manufactured by the assessee in order to establish that the design and the product meets the requirement of the International Standards.
For the purpose of making remittance to PTL, the assessee moved an application u/s 195 (2) before the ADIT. It was argued that no income accrues or arises in India as all services were rendered outside India and the payment was made outside India; that the payment was in the nature of business income of Pehla Laboratory and since it did not had any PE in India, the same was not taxable in India as per the DTAA. It was further submitted that even as per the provisions of Explanation 2 to section 9(1)(vii), the payment did not fall in the nature and category of fees for technical services (FTS).
The AO, however, rejected the contentions on the ground that the type of the services provided by the Pehla Lab was of highly technical nature and the payment was definitely covered by section 9(1) (vii) and secondly, the Explanation 2 to section 9 provides that, where the income was deemed or accrued or arise in India, such income shall be included in the total income of the non-resident, whether or not the non-resident has a residence or place of business or business connection in India. He held that payment would qualify as FTS as per the DTAA between India and Germany, as well as per section 9(1)(vii) and he directed the assessee to deduct the tax 10 % on the gross amount of payment to be made to PTL.
The first appellate authority held in favour of the revenue. However, on further appeal, the Tribunal pointed out that if any person delivers any technical skills or services or make available any such services through aid of any machine, equipment or any kind of technology, then such a rendering of services can be
1 Zaheer Mauritius (2014-TII-39-HC-DEL-INTL).
2 Siemens Ltd vs. Commissioner of Income Tax (2013-TII-ITAT-MUM-INTL).
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inferred as 'technical services'. In such a situation there is a constant human endeavour and the involvement of the human interface. On the contrary, if any technology or machine developed by human and put to operation automatically, wherein it operates without any much of human interface or intervention, then usage of such technology cannot per se be held as rendering of 'technical services' by human skills. It is obvious that in such a situation some human involvement could be there but it is not a constant endeavour of the human in the process. Merely because the humans have provided certificates after a test is carried out in a Laboratory automatically by the machines, it cannot be held that services have been provided through the human skill.
Although the judgement is in the context of domestic law definition of technical fees, such fees cannot be taxed under the treaties as well considering the fact that treaty definition is even narrower.
Disputes concerning taxation of PE
In India, the domestic provision for taxation of cross-border business is the existence of a 'business connection' defined as a real and intimate connection1. However, in cases where there is a PE, one has to see whether a PE exists. A business connection is a broader concept than a PE (Chaudhry, Mullineux & Agarwa, 2015: 41). There may be cases where there is a business connection but not a PE as defined in the relevant tax treaty. The concept of PE has been defined by courts in India to be a virtual projection of the foreign enterprise in India2.
The tax administration tries to assert the existence of a PE that gives taxing rights to the source state in respect of the most important head of income i.e business. Taxpayers also try to deny the existence of a PE so as to make their business income not taxable in India. As a result, there are innumerable cases relating to the existence or otherwise of a permanent establishment. It is impossible to discuss all such cases. Generally speaking the burden of proving the existence of a PE is on the Revenue and in many cases, the judiciary has sided with the taxpayers, occasionally relying on the OECD commentary. Here we discuss two cases that are symptomatic of some of the concerns relating to PE taxation in India.
E-Funds case3- whether subsidiary is PE
E-Funds Corporation, (EFC) a US based company, was engaged in the business of electronic payments and ATM management service (Yapar & Bayrakdar, 2015: 642). EFC along with e-Funds IT Solutions Group Inc., a group company entered into contracts with their clients for the provision of Information Technology enabled services. These contracts were either assigned or sub-contracted to an Indian subsidiary e-Fund International India Private Limited (EFI) for execution. The tax department asserted that there was a business connection of the foreign companies in India and that there was also a PE of such companies in India in the form of the subsidiary.
The Delhi High Court held that although there was a business connection since the subsidiary was providing information and details to the taxpayers for the purpose of entering into contracts and was also performing part of the contracts, there was no PE, neither a fixed place PE, nor a service PE, nor an agency
The High Court pointed out that the factors considered by the Revenue that the taxpayer and the subsidiary were closely related, that the subsidiary was dependent on the foreign company, that it did not bear sufficient risk, that intangibles were provided free of cost to the Indian subsidiary and the fact that the foreign companies were subcontracting the services to the Indian subsidiary to save on costs were factors not relevant for the determination of the existence of a PE.
The High Court reiterated that a subsidiary, by itself will not be a PE; that only when the premises of the subsidiary are at the disposal of the parent by applying the right to use test will it constitute a fixed place PE subject to the satisfaction of the location test and the duration test. The carrying on of business should be 'through' the fixed place of business that meant that the taxpayer had the power to control the place.
The court held that a subsidiary can be considered as agent only when it has the authority to conclude contracts in the name of the parent and also habitually exercises that authority, which was not the case here.
In the context of service PE under article 5(2)(l) of the India-USA DTC, the High Court held that the employees and 'other personnel' must be of the non-resident to create a service PE. The High Court
1 R. D. Agarwal and Company (1965) 56 ITR 20.
2 Commissioner of Income Tax vs. Visakhapatnam Port Trust (2003-TH-HC-AP-INTL).
3 DIT vs. e-Funds Inc. (2014-TII-05-HC-DEL-INTL).
PE.
held that treating employees of the Indian entity as 'other personnel' of the foreign entity would lead to irrational result, for every subsidiary which engages an employee, would always become a PE of the controlling foreign company.
The High Court pointed out that Article 5 (3) (5(4) of the Model) contains a list of negative activities, which are deemed not to create PE. But, it does not follow therefrom that that if some activities are not covered in exclusions set out in paragraph 3, a PE is established under paragraphs 1 or 2 of Article 5.
As for attribution, the High Court held that if it is assumed that e-Fund India was the PE of the foreign company, only the assets and activities of the PE i.e. 'e-Fund India' can be taken into consideration for attribution of profits to the two foreign entities. If the transfer pricing analysis includes and takes into account the functions performed and the risks assumed by the Indian enterprise, nothing further remains to be allocated.
ITO Vs Right Florist1 - PE in the context of e-commerce
The taxpayer is a florist and uses advertising on search engines, i.e. by Google and Yahoo, to generate business. Whenever anyone does a web search on the respective search engines and uses certain keywords, the advertisement is shown along with the search results. The taxpayer had made payments towards advertisement charges to Google Ireland Limited and Overture Services Inc., USA (Yahoo USA), without deduction of tax at source. Under the Indian Income Tax Act, there is a provision that if any person makes a payment to a non-resident any interest or other sum chargeable to tax in India (other than salaries), then tax is to be deducted from such payment. The tax department held that the sums paid to the non-residents were chargeable to tax in India and disallowed the claim.
It was in this context that an issue arose before the Tribunal as to whether there was a PE of Google or Yahoo in India. The Tribunal noted the evolution of the PE concept and observed as follows:
'The PE concept evolved because, in traditional commerce, physical presence was required in the source country if any significant level of business was to be carried on, but with the development of the Internet, correlation between the size of business and extent of physical presence in the source country has virtually vanished.
The traditional PE concept, which was conceived at a point of time when the Internet and e-commerce were not even on the radar, does not really fit into the modern day world in which virtual presence through the Internet , in certain respects, is as effective as physical presence for carrying on businesses'.
'At a policy level, taxation may infringe neutrality when it is dependent on the form of presence, i.e. physical presence vis-a-vis virtual presence, traditional commerce vis-a-vis e-commerce, direct presence vis-a-vis presence through a dependent agent'.
However, a search engine's presence in a location, other than the location of its effective place of management, is only on the Internet or by way of a website, which is not a form of physical presence.
A website per se, which is the only form of Google's presence in India, cannot constitute the basic rule
PE.
While dismissing the tax department's appeal, the Tribunal nevertheless observed:
'Clearly, conventional PE test fails in this virtual world even when a reasonable level of commercial activity is crossed by foreign enterprise. It is a policy decision that Government has to take as to whether it wants to reconcile to the fact that conventional PE model has outlived its utility as an instrument of invoking taxing rights upon reaching a reasonable level of commercial activity and that it does fringe neutrality as to the form of commercial presence i.e. physical presence or virtual presence, or whether it wants to take suitable remedial measures to protect its revenue base. Any inertia in this exercise can only be at the cost of tax certainty'.
Conclusions
As economies become more and more integrated, disputes about interpretation are bound to increase (Bian & Guo Li, 2018: 171). The problems get accentuated when revenue bodies charged with finding revenues come across obvious and often blatant but technically legal use of tax treaties and provisions of domestic laws. Some of these issues may be addressed in BEPS. However, the solutions may be more
1 ITO vs. Right Florist (2103-TII-ITAT-K0L-INTL).
complicated and may require further elaboration and consensus building. Disputes will be there but the need is to manage the same. There is a need to look for common understanding of countries or groups of countries based on common interests to come to a common understanding on issues. Much greater interaction, particularly among the tax administrators, is therefore required.
References
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Chaudhry, S. M, Mullineux A. & Agarwa N. (2015) Balancing the regulation and taxation of banking. International Review of Financial Analysis. 42 (C), 38-52. http://dx.doi.org/10.10167j.irfa.2015.01.020
Devereux, M. P., Fuest, C., & Lockwood, B. (2015) The taxation of foreign profits: A unified view. Journal of Public Economics. 125 (C), 83-97.
Jain, A. K. (2018) A fine balance: Lessons from India's experience with petroleum subsidy reforms. Energy Police. 119 (C), 242-249. https://doi.org/10.1016Zj.enpol.2018.04.050
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Yapar, B. K, Bayrakdar, S. & Yapar M. (2015) The Role of Taxation Problems on the Development of E-Commerce. Procedia - Social and Behavioral Sciences. 195, 642-648. https://doi.org/10.1016/j. sbspro.2015.06.145
Information about the author
Dikshit Prasad Sengupta - the Principal Consultant to the National Institute of Public Finance and Policy, New Delhi (18/2 Satsang Vihar Marg Special Institutional Area, New Delhi, 110067, India; e-mail: [email protected]).
© D. P. Sengupta, 2020
Date of Paper Receipt: September 8, 2020
Date of Paper Approval: November 8, 2020
Date of Paper Acceptance for Publishing: December 1, 2020
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