Yes, and it does. The Supreme Court in AO v. Nestle SA held on 19 October 2023 that a notification under s.90(1) is a mandatory condition before any court, authority or tribunal can give effect to a treaty or a protocol that alters existing law, so an MFN clause does not import the later treaty's rate or scope automatically. It also held that where the clause is triggered by India's treaty with a third state which 'is a member of the OECD', that state must have been a member when it entered the treaty with India. The treaty rate as actually notified, and the s.90(2) choice between the Act and the treaty, are untouched.
A most-favoured-nation clause sits in the protocol to a treaty, not in the articles, and it is a promise about the future. The typical Indian form says that if, after the treaty is signed, India agrees with a third state which is a member of the OECD to a lower rate of tax, or to a narrower scope, on dividends, interest, royalties or fees for technical services, then the same rate or scope shall also apply under this treaty. The India-Netherlands protocol says the same rate or scope 'shall also apply under this Convention' as from the date on which the relevant Indian convention or agreement enters into force. The India-France protocol has a variant fixing the date as whichever of the two conventions enters into force later.
The taxpayer position, which the Delhi High Court accepted in a run of decisions between 2016 and 2022 — Steria (India) Ltd, EPCOS Electronic Components S.A, Concentrix Services Netherlands B.V. and OPTUM Global Solutions International B.V., and Nestle SA's own writ — was that the clause is self-executing. On that reading, once India signed a treaty with an OECD member giving a 5% dividend rate, a Dutch, French or Swiss resident could apply 5% instead of the 10% in its own article, without waiting for anything from the Indian government. Large amounts of withholding were done on that basis, and the department issued lower-deduction certificates reflecting it.
EPCOS needs a word of its own, because this library carries a separate page on it. That decision is in the corpus for a different holding altogether — that a revision under s.264 lies against an intimation under s.143(1) which does no more than accept the return, and that 'prejudicial to the interests of the assessee' is not confined to a case where a demand was raised. Nothing in Nestle touches that holding, and it is still good for it. What Nestle reversed is the MFN limb of the same judgment: the assumption that Clause 7 of the Protocol to the India-Spain treaty gave the assessee the lower rate available under India's other OECD agreements without an Indian notification. Cite EPCOS for s.264; do not cite it for MFN.
The Supreme Court reversed all of it. In Assessing Officer Circle (International Taxation) 2(2)(2) New Delhi v. M/s Nestle SA, Civil Appeal No. 1420 of 2023 with connected appeals, decided 19 October 2023 and reported at (2023) 458 ITR 756 / 335 CTR 145 / (2024) 296 Taxman 580 (SC), the Court held that 'A notification under Section 90(1) is necessary and a mandatory condition for a court, authority, or tribunal to give effect to a DTAA, or any protocol changing its terms or conditions, which has the effect of altering the existing provisions of law.' The reasoning is dualist rather than tax-specific: a treaty does not become enforceable in India merely by being entered into, and s.90(1) is the legislative device through which it takes effect. Because an MFN clause, when it operates, changes the rate or the scope of India's charge, giving effect to it alters existing law and needs its own notification.
The second holding is about timing, and it disposed of the specific claims. The clauses are triggered by a treaty with a third state 'which is a member of the OECD'. The Court read 'is' as having present signification, so the state must have been an OECD member at the moment it entered its treaty with India. The three states relied on all failed: India signed with Slovenia on 13 January 2003 and Slovenia joined the OECD on 21 July 2010; India signed with Lithuania on 26 July 2011 and Lithuania joined on 5 July 2018; India signed with Colombia on 13 May 2011 and Colombia joined on 28 April 2020.
The CBDT had said the same thing before the judgment, and its circular is worth having on the file because it puts the test in four cumulative limbs. Circular No. 3/2022 dated 3 February 2022 states that the MFN benefit is available only where: the second treaty is entered into after the signature or entry into force of the treaty with the first state, depending on the language of the clause; the second treaty is with a state which is a member of the OECD at the time of signing; India limits its taxing rights in the second treaty as to rate or scope on the relevant items of income; and 'A separate notification has been issued by India, importing the benefits of the second treaty into the treaty with the first State, as required by the provisions of sub-section (1) of Section 90'. Nestle affirms the fourth limb as a matter of law rather than administration.
For a taxpayer who took the benefit in earlier years, the exposure runs through withholding rather than through the non-resident's own assessment. The shortfall between the MFN rate applied and the notified treaty rate is a short deduction, and the demand comes to the deductor under s.201(1) with interest under s.201(1A). Where a lower-deduction certificate under s.197 was issued on the MFN footing, the certificate protects the deductor for the period it covers on its own terms, but it does not settle the non-resident's liability. Open assessments and appeals on the point now fall to be decided on Nestle, a review petition — Review Petition 77 of 2024 — having been dismissed on 6 August 2024. Be precise about what that settles and what it does not. It settles the condition: without a s.90(1) notification importing the MFN rate, no court, authority or tribunal may give effect to it. It does not decide the fate of a refund claim built on the rate, and nothing fetched shows how the department has in fact dealt with such claims. Nor is the notification a year-by-year instrument, as the same page says two paragraphs below: when one is issued it operates from the date it itself specifies. What the judgment does not decide, and no page consulted resolves, is whether a deductor who withheld at the MFN rate while the Delhi High Court decisions stood has a reasonable-cause answer to penalty; that argument has to be run on its own footing.
The treaties most affected are the Netherlands, France and Switzerland, and the item most affected is dividends — the rate the department now insists on is the 10% in the article as notified, not the 5% that was being applied. Switzerland took the point further than litigation: following the judgment it suspended the MFN clause in its treaty with India with effect from 1 January 2025, so the reduced rate on dividends flowing to Indian residents from Switzerland went back to 10% as well. The fees-for-technical-services claims — the Steria line, importing a 'make available' restriction from a later treaty into the India-France article — fall with the same reasoning.
Three things remain available and should not be given up. First, the treaty as notified: the rate and the scope in the articles India actually notified continue to apply, and Nestle says nothing against them. Second, the s.90(2) choice — an assessee to whom a notified treaty applies may take the provisions of the Act or of that treaty, whichever are more beneficial; that is a separate right and the judgment does not touch it, though it is subject to s.90(2A), which lets Chapter X-A apply even where it is not beneficial. Third, and this is the one people forget, an MFN benefit that has been notified is fully available: India cut the rate on royalties and fees for technical services under the India-Spain treaty to 10% by invoking the MFN clause through Notification No. 33/2024, F.No. 503/2/1986-FTD-I, dated 19 March 2024, importing the position under the India-Germany treaty, and that applies from financial year 2023-24. Where a notification exists, apply it from the year the notification specifies and not from the year the third-state treaty was signed.
The wider effect of Nestle is that its first holding is now being used against the department. The Mumbai and Delhi Tribunals have relied on the same proposition — that a modification to a treaty needs its own s.90(1) notification — to hold that the Principal Purpose Test brought in by the Multilateral Instrument cannot be applied to a treaty for which no notification has been issued. The corpus deals with that separately.
Every remittance file opened between 2021 and October 2023 on which a 5% dividend rate or a narrowed FTS scope was applied under an MFN clause is now a short-deduction file. The demand lands on the Indian payer, not on the foreign recipient, which is why this is a withholding problem before it is a treaty problem. Going forward the check is mechanical and takes a minute: is there a notification, and was the third state an OECD member on the day it signed with India. Getting that wrong once, on a large dividend, produces a s.201 demand with interest running from the date of payment.
I hold a Mauritius TRC. Can the department still deny me treaty relief on the capital gains?
We outsource back-office work to our Indian subsidiary. Does that give us a permanent establishment in India?
My protocol has an MFN clause and I applied the lower rate India later agreed with an OECD member. Was I entitled to?
A foreign professional worked on our matter in India but we neither briefed him nor paid him. Can we be treated as his agent and made liable for his tax?
I have paid the short-deducted tax and the interest to close the matter — can the department still levy penalty under section 271C?
We pay interconnect and port charges to another telecom operator — is that fees for technical services on which we must deduct tax under section 194J?
The TDS officer says I under-deducted under s.192. If my estimate was made honestly, does that answer the demand, the interest and the penalty?
I am a foreign company on a turnkey contract. I fabricated the platform abroad and only installed it in India. Can the Department tax the offshore fabrication profit because the contract was one indivisible whole?
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