Finance Ministry's Clarification on TAX Residency Certificate (TRC)
Press Release, dated 1-3-2013 was issued by the Central Board of Direct Taxes on 1 March 2013. Its subject is Finance Ministry's Clarification on TAX Residency Certificate (TRC).
This one is about a tax treaty. India’s treaties enter Indian law by notification under section 90; where the instrument below is that notification, its date decides from when the treaty may be applied, and where it is a circular, it is the Board telling its officers how it reads the treaty — which is not the same thing.
Gives the Government's assurance on the tax residency certificate. Sub-section (4) of section 90, introduced by the Finance Act, 2012, requires an assessee to produce a tax residency certificate to claim a treaty benefit, and the Finance Bill then proposed to carry into sub-section (5) the words from the 2012 explanatory memorandum that the certificate is a necessary but not a sufficient condition. The Government states that this is not new and that the proposed sub-section (5) is not intended to let Indian income-tax authorities question a certificate: a certificate produced by a resident of a contracting state will be accepted as evidence of his residence there and the authorities will not go behind it to question his resident status. The concern about the language of the proposed sub-section will be addressed when the Finance Bill is taken up for consideration. Circular No. 789 dated 13 April 2000 continues in force for Mauritius, pending discussions between India and Mauritius.
Concern had been expressed about the clause in the Finance Bill amending section 90, and specifically that the language of the proposed sub-section (5) could allow the certificate to be questioned in India.
| Under the 1961 Act | Now |
|---|---|
| s.90 | s.159 |
FINANCE MINISTRY'S CLARIFICATION ON TAX RESIDENCY CERTIFICATE (TRC)
PRESS RELEASE, DATED 1-3-2013
Concern has been expressed regarding the clause in the Finance Bill that amends Section 90 of the Income-tax Act that deals with Double Taxation Avoidance Agreements. Sub-section (4) of section 90 was introduced last year by Finance Act, 2012. That subsection requires an assessee to produce a Tax Residency Certificate (TRC) in order to claim the benefit under DTAA.
DTAAs recognize different kinds of income. The DTAAs stipulate that a resident of a contracting state will be entitled to the benefits of the DTAA.
In the explanatory memorandum to the Finance Act, 2012, it was stated that the Tax Residency Certificate containing prescribed particulars is a necessary but not sufficient condition for availing benefits of the DTAA. The same words are proposed to be introduced in the Income-tax Act as sub-section (5) of section 90. Hence, it will be clear that nothing new has been done this year which was not there already last year.
However, it has been pointed out that the language of the proposed sub-section (5) of section 90 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 government wishes to make it clear that that is not the intention of the proposed subsection (5) of section 90. 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.
In the case of Mauritius, circular no. 789, dated 13-4-2000 continues to be in force, pending ongoing discussions between India and Mauritius.
However, since a concern has been expressed about the language of sub-section (5) of section 90, this concern will be addressed suitably when the Finance Bill is taken up for consideration.
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When a treaty claim or a withholding certificate application is challenged on the footing that the taxpayer's residence in the other state is not established by his tax residency certificate.
Source: the Income Tax Department’s own published text — its page for this instrument.