1605C. Clarification regarding taxation of income from dividends and capital gains under the Indo-Mauritius Double Tax Avoidance Convention (DTAC)
Circular No. 1/2003 was issued by the Central Board of Direct Taxes on 10 February 2003. Its subject is 1605C. Clarification regarding taxation of income from dividends and capital gains under the Indo-Mauritius Double Tax Avoidance Convention (DTAC).
This is a clarification. The Board is stating how it reads a provision. That reading binds the department; it does not bind a court, and where the section says otherwise the section wins.
Cuts back the reach of the Mauritius residence certificate where the entity is resident of both States. Circular No. 789 dated 13 April 2000, reproduced in the text, had said that a certificate of residence issued by the Mauritian authorities is sufficient evidence of residence and of beneficial ownership for applying the Indo-Mauritius Double Taxation Avoidance Convention, so that Foreign Institutional Investors resident in Mauritius are not taxable in India on capital gains on the sale of shares under paragraph 4 of article 13. Doubts arose whether that circular also covered entities resident of both India and Mauritius. The Board clarifies that where an assessee is resident of both Contracting States under paragraph 1 of article 4, residence is to be determined under paragraph 3, which deems a person other than an individual to be resident of the State in which its place of effective management is situated. So an Assessing Officer who finds and is satisfied that a company is resident of both India and Mauritius may proceed to determine residence under paragraph 3, and where the place of effective management is found to be in India, the company is taxed in India under the Convention notwithstanding its incorporation in Mauritius.
Certain doubts had been raised on the effect of Circular No. 789, particularly whether it applied to entities resident of both India and Mauritius, and the Board issued this to remove them.
1605C. Clarification regarding taxation of income from dividends and capital gains under the Indo-Mauritius Double Tax Avoidance Convention (DTAC)
1. The provisions of the Indo-Mauritius DTAC of 1983 apply to ‘residents’ of both India and Mauritius. Article 4 of the DTAC defines a resident of one State to mean "any person who, under the laws of that State is liable to taxation therein by reason of his domicile, residence, place of management or any other criterion of a similar nature." Foreign Institutional Investors and other investment funds, etc., which are operating from Mauritius are invariably incorporated in that country. These entities are ‘liable to tax’ under the Mauritius Tax law and are, therefore, to be considered as residents of Mauritius in accordance with the DTAC.
2. Prior to 1-6-1997, dividends distributed by domestic companies were taxable in the hands of the shareholder and tax was deductible at source under the Income-tax Act, 1961. Under the DTAC, tax was deductible at source on the gross dividend paid out at the rate of 5% or 15% depending upon the extent of shareholding of the Mauritius resident. Under the Income-tax Act, 1961, tax was deductible at source at the rates specified under section 115A, etc. Doubts have been raised regarding the taxation of dividends in the hands of investors from Mauritius. It is hereby 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 accordingly.
3. The test of residence mentioned above would also apply in respect of income from capital gains on sale of shares. Accordingly, FIIs, etc., which are resident in Mauritius would not be taxable in India on income from capital gains arising in India on sale of shares as per paragraph 4 of article 13.
Circular : No. 789, dated 13-4-2000.
CLARIFICATION ONEReference is invited to the Circular No. 789, dated 13-4-2000 issued by the Board where it was clarified that "wherever the 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 DTAC accordingly." The said circular specified the mode of proof of residence of an entity in Mauritius.
Certain doubts have been raised regarding the effect of the aforesaid circular, particularly whether the said circular would also apply to entities which are resident of both India and Mauritius. In order to remove all doubts on the subject, it is hereby clarified that where an assessee is a resident of both the Contracting States, in accordance with para 1 of article 4 of Indo-Mauritius DTAC, then, his residence is to be determined in accordance with para 3 of the said article, which reads as under :—
"3. Where, by reason of the provisions of paragraph 1, a person other than an individual is resident of both the Contracting States, then it shall be deemed to be a resident of the Contracting State in which the place of effective management is situated."
In view of the above, where an Assessing Officer finds and is satisfied that a company or an entity is resident of both India and Mauritius, he would be free to proceed to determine the residential status under para 3 of article 4 of DTAC. Where it is found as a fact that the company has its place of effective management in India, then notwithstanding its being incorporated in Mauritius, it would be taxed under the DTAC in India.
Circular : No. 1/2003, dated 10-2-2003.
In an assessment or a section 197 or 195 proceeding where a Mauritius entity's treaty claim on capital gains or dividends is examined and dual residence is alleged.
Source: the Income Tax Department’s own published text — its page for this instrument.