Notification No. 62/2011

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EXTRAORDINARY 7
-- . RAT evs 3—3-WUE (ii)
: PART II—Section 3—Sub-scction (ii) .
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. PUBLISHED BY AUTHORITY .
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2. THE GAZETTE OF INDIA: EXTRAORDINARY [Parr II—Sec. 3()]
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{aT 11—-waes 3(ii)] "SRA aT UTR: ASTER : 5 .
1 AKA-W VA YT SH ay A ar] eM st gq Pete —the said Protocol will be applicable for information that
Tila TK eee st ata S sera sweat ad F erent relates to any fiscal year beginning on or after the firstday
, We m yam fea St sear sas ae smey ER aS fret of January of the year next following the date of signature ~
fadra ad a dati & | of the said Protocol ; 0
frat ea a sae feo faftaa =a @ wited Now, therefore, in exercise of the powers conferred .
- opieenaftal 2 arct-sret acart a sit a za aigien by Section 90 of the Income-tax Act, 1961 (43 of 1961), the aidtata feu | _ Central Government hereby directs that all the provisions
TEMA . , of the said Protocol, as set out in the Annexure hereto, ag fare F ad el wont ea H area Tle & dha fa, shall be given effect to in the Union of India in respect of © ' |
attstt, fe<t at ada arnait Fy, a-et uftal F fre fear income arising in any fiscal year beginning on or after the
TH, Vt Ws BAA BIA wf F 1 ael-fea A -Ist day of April, 2012 and with respect to Article 26 of the fiero at feerfa A stash we wea ert Agreement, the exchange of information provided for in
_ ; the said Protocol will be applicable for information that
ARG TRS . fan afters erste relates to any fiscal year beginning on or after the 1st day ©
. TR St AR a . Hae of April, 2011.
(wre Wasi) (fagreita areet-2) . ° PROTOCOL — . .
faa at Beae, fears aie AMENDING THE AGREEMENT BETWEEN THE
‘fae fas REPUBLIC OF INDIA AND THE SWISS
(afirgat G. 62/201 781. FE. 501/01/1973~WReet-1] CONFEDERATION FOR THE AVOIDANCE OF
. ; DOUBLE TAXATION WITH RESPECT TO TAXES
BIT BAR fas, aya uisa ON INCOME WITH PROTOCOL, SIGNED AT NEW i
DELHI ON 2 NOVEMBER, 1994, AS AMENDED BY 4
. THE SUPPLEMENTARY PROTOCOLSIGNEDAT NEW :
MINISTRY OF FINANCE DELHI ON 16 FEBRUARY, 2000. _ .
| (Department of Revenue) = The Government of the Republic of India ~
_ NOTIFICATION — | _— - and _ oo :
| - New Delhi, the 27th December, 2011 _ the Swiss Federal Council; _ . .
— (INCOME-TAX) _ Desiring to conclude a Protocol (hereinafter referred . {
S.O. 2903 (E).—Whereas a Protocol amending the to as “Amending Protocol”) to amend the Agreement i
Agreement between the Republic of India and the Swiss. between the Contracting Parties for the Avoidance of
. Confederation for the avoidance of double taxation with _ Double Taxation with respect to Taxes on Income, signed respect to taxes on income with Protocol, signed at at New Delhi on 2 November 1994, as amended by the
New Delhi on the 2nd day of November, 1994, as amended supplementary Protocol signed at New Delhi on 16
by the supplementary Protocol signed at New Delhi on the February, 2000 (hereinafter referred to as “the Agreement”);
16th day of February, 2000, was signed at New Delhi on the Have agreed as follows: - -
30th day of August, 2010 ; ; ARTICLE1 : | . -
And whereas the date of entry into force of the said . ere F
. : Sub-paragraph (i) of paragraph 1 of Article 3 (General
Protocol is the 7th day of October, 201 1, b eing the date of Definitions) ofthe Agreement shall be deleted and replaced :
later of the notifications of satisfaction of all legal . : -
os , ae by the following sub-paragraph: .
_° requirements and procedures as required by the respective on !
ce laws for entry into force of the said Protocol, in accordance “@__ the term “international traffic” means any 4
. - with Paragraph 2 of Article 14 of the said Protocol ; , transport by a ship or aircraft operated by an :
, enterprise of a Contracting State, except when
And whereas sub-paragr aph (a) of Paragraph 2 of the ship or aircraft is operated solely between
; Article 14 of the said Protocol provides that the provisions places in the other Contracting State:”
_. of the said Protocol shall have effect in India in respect of ; .
income arising in any fiscal year beginning on or after the ARTICLE 2 ;
: first day of April next following the calender year in which Paragraph 1! of Article 7 (Business profits) of the ;
: the Amending Protocol entered into force; Agreement shall be deleted and replaced by the following —
4 And whereas Paragraph 3 of Article 14 of the said Paragraph : 4
‘ Protocol provides that with respect to Article 26 of the “1. The profits of an enterprise ofa Contracting State
. Agreement, the exchange of information provided for in . 7 .
GGA OMAR QZ
Li ate ects a. a ae . Bb wets aes. a eee: ce nes wi wo . . i

: 6 . _— THE GAZETTE OF INDIA: EXTRAORDINARY " [Parr II—Ssc. 3(ii)]
shall be taxable only in that State unless the enterprise any personal allowances, reliefs and reductions for taxation ©
carries on business in the other Contracting State through purposes on account of civil status or family responsibilities

a permanent establishment situated therein. Ifthe enterprise which it grants to its own residents.”
carries on business as aforesaid, the profits of the enterprise ARTICLE 8 ; -
may be taxed in the other State but only so much of them as . ; re is attributable to that permanent establishment.” Article 26 (Exchange of information) of the
Agreement shall be deleted and replaced by the following
ARTICLE 3 ; Article :
Article 8 (Air transport) of the Agreement shall be “Article 26
deleted and replaced by the following Article : Exchange of information
Article 8 . , 1. The competent authorities of the Contracting
Shipping and air transport States shall exchange such information as is foreseeably
1. Profits of an enterprise of a Contracting State from relevant for carrying out the provisions of this Agreement the operation of ships or aircraft in international traffic or to the administration or enforcement of the domestic shall be taxable only in that State. ‘laws concerning taxes covered by the Agreement in-so-far
2. The provisions of paragraph | shall also apply to as the taxation thereunder is not contrary to the Agreement.
_ profits from the participation in a pool, a joint business or The exchange of information is not restricted by Article 1.
an international operating agency.” . 2. Any information received under paragraph | by a
. ARTICLE 4 ae | Contracting State shall be treated. as secret in the same
_ manner as information obtained under the domestic laws
___ Paragraph 3 Sub-paragraph (c) ofArticle 11 (Interest) of that State and shall be disclosed only to persons or of the Agreement shall be deleted and replaced by the —_quthorities (including courts and administrative bodies)
following : concerned with the assessment or collection of the
‘ “(c) interest arising in a Contracting State and paid enforcement or prosecution in respect of, or the to a resident of the other Contracting State engaged in the determination of appeals in relation to the taxes referred to operation of ships or aircraft in international traffic shall be in paragraph 1, or the oversight of the above. Such persons taxable only in that other State to the extent that such’ or authorities shall use the information only for such interest is paid on funds connected with such activity ;” _ purposes. They may disclose the information in public:
ARTICLE 5 court proceedings or in judicial decisions. Notwithstanding
; the foregoing, information received by a Contracting State
Paragraph 3 of Article 13 (Capital gains) of the may be used for other purposes when such information
Agreement shall be deleted and replaced by the following may be used for such other purposes under the laws of paragraph a. both States and the competent authority of the supplying
_ “3, Gains derived by an enterprise of a Contracting State authorises such use. .
To State from the alienation of ships or aircraft operated in 3. In no case shall the. provisions of paragraphs international traffic, or movable property pertaining to the 1 and 2 be construed so as to impose on a Contracting operation of such ships or aircraft shall be taxable only in State the obligation :
; that State.” (a) to carry out administrative measures at
ARTICLE 6 : variance with the laws and administrative
. . _-» Sub-paragraph (c) of paragraph 2 of Article 23 - practice of that or of the other Contracting (Elimination of double taxation) of the Agreement shall be mo State ; deleted. . (b) to supply information which is not obtainable
ARTICLE7 . under the laws or in the normal course of the
7 * Paragraph 2 of Article 24 (Non-discrimination) of the eae en aaon OF {nat or of the other
, Agreement shall be deleted and replaced by the following 6 mae >
paragraph : _ {c) to supply information which would disclose un n . , . . any trade, business, industrial, commercial or
; 2. The taxation ona permanent establishment which ; 7 professional secret or trade process, or an ae ee tn 2 Contracting Se has m the oer ° information the disclosure of which would be
Contract OLE SE 0 1885 ouradly icvie H : :
that other State than the taxation levied on enterprises of ; contrary ° Public Policy (order public).
that other State carrying on the same activities. This . 4. If information is requested by a Contracting State provision shall not be construed as obliging a Contracting _—=in accordance with this Article, the other Contracting State
; State to grant to resident of the other Contracting State shall use its information gathering measures to obtain the
~ ~ requested information, even though that other State may oe i aS ae ae ; Th eee pbk ode

, oe ; : - 7 ; Ohl gg .
(3M I-@rs 3(ii)] . AR SST UST: STN . Te not need such information for its own tax purposes. The Convention of Agreement for the avoidance of double ; obligation contained in the preceding sentence is subject taxation between the State in which that other person is ; to the limitations of paragraph 3 but in no case shall such resident and the Contracting State in which the income ; limitations be construed to permit a Contracting State to arises, or otherwise, to benefits with respect to that item of t decline to supply information solely because it has no income which are equivalent to, or more favourable than, -
domestic interest in such information. those available under this Agreement to a resident of a

5. In no case shall the provisions of paragraph 3 be Contracting State, and the main purpose of such structuring construed to permit a Contracting State to decline to supply is obtaining benefits under this Agreement.
information solely because the information is held by a In respect of Articles 10 (Dividends), 11 (Interest)
bank, other financial institution, nominee or person acting —_and 12 (Royalties and fees for technical services), if under |
in an agency or a fiduciary capacity or because it relates to any Convention, Agreement or Protocol between India and ownership interests in a person. In order to obtain such a third State which is a member of the OECD signed after .
information, the tax authorities ofthe requested Contracting _the signature of this Amending Protocol, India limits its .
State shall, therefore, have the power to enforce the taxation at source on dividends, interest, royalties or fees disclosure of information covered by this paragraph, for technical services to a rate lower than the rate provided notwithstanding paragraph 3 or any contrary provisions for in this Agreement on the said items of income, the same in its domestic laws.” rate as provided for in that Convention, Agreement or
ARTICLE9 Protocol on the said items of income shall also apply Oo , between both Contracting States under this Agreementas =~
Anew paragraph | of the Protocol to the Agreement from the date on which such Convention, Agreement or ‘
shall be added and the remaining paragraphs shall be . :
_ Protocol enters into force. Le .
renumbered accordingly and shall reas as follows: .
«1 -WithreferencetoArticle4 If after the date of si gnature this Amending Protocol, | :
India under any Convention Agreement or Protocol witha 4
It is understood that paragraph | of Article 4, the third State which is a member of the OECD, restricts the :
term “resident of a Contracting State” includes a recognized scope in respect of royalties or fees for technical services pension fund or pension scheme in that Contracting State. than the scope for these items of income provided for in
It is further understood that a recognized pension fund or Article 12 of this Agreement, then Switzerland and India.
pension scheme of a Contracting State shall be regarded shall enter into negotiations without undue delay inorder > j as any pension fund or pension scheme recognized and —_—tg provide the same treatment to Switzerland as that 4
controlled according to statutory provisions of that State, provided to the third State.” -
which is generally exempt from income taxation in that State : So i and which is operated principally to administer or provide ARTICLE 12
pension or retirement benefits.” Paragraph 7 of the Protocol to the Agreement (With
ARTICLE 10 reference to paragraph 4 of Article 24) shall be deleted and :
The first sub-paragraph of paragraph 2 of the replaced by the following paragraph ;
Protocol (With reference to Article 7) shall be deleted. “8. With reference to paragraph 2 of Article 24. .-
ARTICLE 11 It is understood that the provisions of paragraph 2 ‘
Paragraph 4 of the Protocol to the Agreement shall of Article 24 shal] not be construed as preventing a be deleted and replaced by the following paragraph : .- Contracting State from charging the profits ofapermanent - ; ee: . ; establishment which a company of the other Contracting : :
5. with reference to Articles 10, 11, 12 and 22 State has in the first-mentioned State at a rate of tax which. '
_ The provisions of Articles 10, 11, 12 and 22 shall not is higher than that imposed on the profits of a similar :

apply in respect to any dividend, interest, royalty, fees for company of the first-mentioned Contracting State, nor as ~ J
technical services or other income paid under, or as part of being in conflict with the provisions of paragraph 3 of ; a conduit arrangement. The term “conduit arrangement” Article 7. However the difference in tax rate shall not exceed means a transaction or series of transactions which is 10 percentage points.” ae St po structured in such a way that a resident of a Contracting ARTICLE 13 Fo vet ew
State entitled to the benefits of the Agreementreceivesan a . wen item of income arising in the other Contracting State but Anew paragraph 10 of the Protocol to the Agreement — -
that resident pays, directly or indirectly, all or substantially shall be added as follows : a oe oe all of that income (at any time or in any form) to another "10. With reference to Article 26 sa person who is not a resident of either Contracting State ; , F
and who, if it received that item of income directly from the _ (a) It is understood that an exchange of me j other Contracting State, would not be entitled under a information will only be requested once the — 4

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8 THE GAZETTE OF INDIA: EXTRAORDINARY - [Part II—Sec. 34]
requesting Contracting State has exhausted (f) It is understood that in case of an exchange of
: , all normal procedures under its domestic laws _ information, the administrative procedural to obtain that information. rules regarding taxpayers’ rights provided for
- : : in the requested Contracting State remain (b) It is understood that the competent authority ; nm” : : . .
of the requesting State shall provide the applicabe pefore ° information's sini
. following information to the competent 0 the requesting \onlraching sate. tis turmer authority of the requested State when making ; understoo d that this Provision aims at a request for information under Article 26 of guaranteeing the taxpayer a fair procedure and
_ the Agreement : not at preventing or unduly delaying the
; , exchange of information process.”
@ the name of the person(s) under ARTICLE 14
examination or investigation and, if .
available, other particulars facilities that 1. The Government of the Contracting States shall
. _ persons’s identification such as address notify each other through diplomatic channels that all legal
“date of birth, marital status, tax requirements and procedures for giving effect to this a “identification number: Amending Protocol have been satisfied.
i) ‘the riod of time for which the information 2. The Amending Protocol, which shall form an
, is i nested: integral part of the Agreement, shall enter into force on the .
s req , date of the later of the notifications referred to in paragraph
- (ii) +a _ statement of the information sought 1 and its provisions shall have effect :
. including its nature and the form in which - (@)_ inIndia, .
the requesting State wishes to receive the . ooo,
. ‘information from the requested State; . In respect of income arising in any fiscal year
“¢ ) thetax for which the informati beginning on or after the first day of April next
WW) the purpose Or'which ihe informaiton . following the calender year in which the is sought; “, Amending Protocol entered into force; and
. _ (v)_s thename and, if available, address of any : (b) in Switzerland,
4 person believed to be in possession of : ; ; oo, the requested information. : in respect of income arising in any fiscal year ~
—_ — "beginning or or after the first day of January a (©) If specifically requested by the competent next following the calender year in which the authority of the requesting Contracting State, Amending Protocol entered into force.
the competent authority of the requested ; : oo. .
. - Contracting State shall provide information in "3. Notwithstanding paragraph 2 of this Article, with
- the form of authenticated copies of documents. respect to Article 26 of the Agreement, the exchange of
_ . . . information provided for in this Amending Protocol will be
_ @__ The purpose of referreing to information that applicable for information that relates to any fiscal year may be foreseeably relevant is intended to beginning on or after the first day of January of the year
; provide for exchange of information in tax next following the date of signature of this Amending
_— matters to the widest possible extent without Protocol.
a allowing the Contracting States to engage in ; . ;
" "fishing expeditions” or to request information In witness whereof the undersigned, duly authorised
St that is unlikely to be relevant to the tax affairs thereto by their respective Governments, have signed this
_ of a given taxpayer. While clause (b) of Amending Protocol. .
paragraph 10 contains important procedural Done in duplicate at New Delhi this 30th day of
. requirements that are intended to ensure that August, 2010 in the English, German and Hindi languages,
. fishing expeditions do not occur, sub-clause (i) all texts being equally authentic. In the case of any through (v) nevertheless need to be interpreted divergence, the English text shall prevail.
in order not to frustrate effective exchange of = Forthe Government of _For the Swiss Federal Council :
__ information. . the Republic of India :
OF e) Itis er understood that Article 26 of the rana erjée Micheline Calmy-Rey)
(e) It is furth d d that Article 26 of th (Shri Pranab Mukherjee) (Micheline Calmy-Rey ire, + Agreement shall not commit the Contracting ~ Finance Minister Head of the Swiss Federal
_ States to exchange information on an automatic _ . Department of Foreign Affairs
| nn cane - [Notification No. 62/2011/F. No. 501/01/1973-FTD-I]
oo a . ; . a SANJAY KUMAR MISHRA, Jt. Secy.
, Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064° :
. . and Published by the Controller of Publications, Delhi-1 10054. ~
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