India–China tax treaty — rates, PE and MLI

The rates, at a glance

Every figure below is taken from the article named beside it, not from a rates table. Read the condition in the same row before you use the rate — in this treaty the condition is usually the whole answer.

Income	Rate	The condition attached to it	Article
Dividends	10 per cent of the gross amount — a single flat ceiling, conditional only on the recipient being the beneficial owner. Art. 10(2). Unamended since 1994.	None. There is no shareholding threshold and no two-tier structure in Article 10, and the 2018 Protocol did not add one. There is also no MLI Art. 8 holding-period condition, because the MLI does not apply to…	Article 10, paragraph 2
Interest	10 per cent of the gross amount — a single flat ceiling, conditional on the recipient being the beneficial owner. Art. 11(2). Unamended since 1994.	Art. 11(3) as substituted by the 2018 protocol is one of the broadest government-and-institutions interest exemptions in the Indian treaty network, and its structure is worth setting out limb by limb because…	Article 11, paragraph 2 for the rate; 3 for the exemptions, read with Protocol para 3 for the definitions
Royalties	10 per cent of the gross amount — Art. 12(2), conditional on the recipient being the beneficial owner. A single flat ceiling covering royalties and fees for technical services alike, with no split by type and no time-tiering. This is the simplest rate article of the ten treaties in this batch. IT was not changed by the 2018 protocol: Article 12 carries no amendment marker of any kind, and 10 per cent has been the rate since the Agreement took effect.	Art. 12(3) is a single composite definition covering copyright of literary, artistic or scientific work including cinematograph films and films or tapes for radio or television broadcasting, any patent, trade…	Article 12, paragraph 2
Fees for technical services	10 per cent of the gross amount — the same single ceiling as royalties, Art. 12(2). Royalties and FTS do not carry different rates on this treaty and never have.	There is no make-available requirement. Art. 12(4) defines fees for technical services as 'any payment for the provision of services of managerial, technical or consultancy nature by a resident of a…	Article 12, paragraph 4

Status

In force	21 November 1994. The Agreement and its Protocol were signed at New Delhi on 18 July 1994 (in Hindi, Chinese and English, all three texts equally authentic, the english text to prevail in case of divergence) and came into force on 21-11-1994 under Art. 28. Entry into force is on the thirtieth day after the exchange of diplomatic notes. The Agreement covers taxes on income only, not capital.
Given effect by	Notification No. G.S.R. 331(E), dated 5-4-1995 — issued under s.90 of the Income-tax Act 1961 alone (no wealth-tax or surtax reference, consistent with the Agreement covering income only).
Modified by the MLI	No synthesised text was found for this treaty in the source searched.
Principal purpose test	Yes, and IT is in the treaty itself, not in A synthesised text. Article 27A, entitlement to benefits, inserted by the Protocol notified on 17-7-2019, reads: 'Notwithstanding the other provisions of this Agreement, a benefit under this Agreement shall not be granted in respect of an item of income if it is reasonable to conclude, having regard to all relevant facts and circumstances, that obtaining that benefit was one of the principal purposes of any arrangement or transaction that resulted directly or indirectly in that benefit, unless it is established that granting that benefit in these circumstances would be in accordance with the object and purpose of the relevant provisions of this Agreement.' This is word for word the MLI Art. 7(1) principal purposes test, adopted bilaterally. Two consequences follow. First, its effective date is governed by the amending Protocol and the notification of 17-7-2019, not by MLI Art. 35 — so the dates differ from every other treaty in this batch and must be taken from the Protocol's own entry-into-force provision. Second, because it sits in the treaty text, it is applied as a treaty article and not as an overlay, and the closing 'unless' limb — that the benefit would be in accordance with the object and purpose of the relevant provisions — is an integral part of the article and must never be truncated off.

Dividends

Rate	10 per cent of the gross amount — a single flat ceiling, conditional only on the recipient being the beneficial owner. Art. 10(2). Unamended since 1994.
The holding that unlocks it	None. There is no shareholding threshold and no two-tier structure in Article 10, and the 2018 Protocol did not add one. There is also no MLI Art. 8 holding-period condition, because the MLI does not apply to this treaty at all — so unlike Canada, the 10 per cent rate here carries no 365-day ownership requirement.
Where this comes from	Article 10, paragraph 2

The second sentence of Art. 10(2) preserves taxation of the company on the profits out of which the dividends are paid — it sits inside para 2 here rather than as a separate paragraph. Art. 10(3) defines dividends as income from shares, or other rights not being debt claims participating in profits, plus income from other corporate rights subjected to the same taxation treatment as income from shares by the law of the distributing company's State. Art. 10(4) is the PE / fixed-base override. Art. 10(5) is the full extraterritorial-dividend and undistributed-profits prohibition. Any benefit under this article is now subject to the Art. 27A principal purpose test.

Interest

Rate	10 per cent of the gross amount — a single flat ceiling, conditional on the recipient being the beneficial owner. Art. 11(2). Unamended since 1994.
Exemptions	Art. 11(3) as substituted by the 2018 protocol is one of the broadest government-and-institutions interest exemptions in the Indian treaty network, and its structure is worth setting out limb by limb because it operates on two entirely different bases. Notwithstanding para 2, interest arising in a Contracting State is exempt from tax in that State if it is either (i) paid to one of a listed class of bodies of the other State, or (ii) paid on loans guaranteed or insured by one of those bodies. The second basis is the valuable one: it exempts interest on ordinary commercial lending by a private lender, provided a qualifying State body has guaranteed or insured the loan. The recipient need not be governmental at all. The listed class, in both limbs, is: the Government; a political subdivision; a local authority; the central bank; or any financial institution wholly owned by the government of the other Contracting State. Protocol para 3, also substituted by the 2018 protocol, defines those terms and must be read with article 11(3) — the article alone is incomplete. 'Central Bank' means the People's Bank of China in the case of China and the reserve bank of india in the case of India. 'Any financial institution wholly owned by the Government of the other Contracting State' means, in the case of china: (A) the China Development Bank; (B) the Agricultural Development Bank of China; (C) the Export-Import Bank of China; (D) the National Council for Social Security Fund; (E) the China Export & Credit Insurance Corporation; (F) the China Investment Corporation; and (G) any other institution wholly owned by the Government of China as may be agreed from time to time between the competent authorities. In the case of india: (A) the Export-Import Bank of India; (B) the National Housing Bank; (C) the India Infrastructure Finance Company Limited; (D) the Export Credit Guarantee Corporation of India Limited; (E) the National Bank for Agricultural and Rural Development; and (F) any other institution wholly owned by the Government of India as may be agreed from time to time between the competent authorities. The lists are named but not closed. Each ends with an open competent-authority limb, so further wholly-government-owned institutions can be added without a protocol. But note the qualifier on that limb: the institution must be wholly owned by the Government. Majority ownership does not qualify. Art. 11(5) disapplies paras 1 and 2 (not, on its face, para 3) where the debt-claim is effectively connected with a PE or fixed base. Art. 11(4) excludes penalty charges for late payment from 'interest' altogether, and Protocol para 1 separately provides that 'tax' throughout the Agreement does not include any penalty imposed for non-compliance with the tax laws.
Where this comes from	Article 11, paragraph 2 for the rate; 3 for the exemptions, read with Protocol para 3 for the definitions

Art. 11(4) defines interest as income from debt-claims of every kind, whether or not secured by mortgage and whether or not carrying a right to participate in the debtor's profits, in particular income from Government securities and from bonds or debentures including premiums and prizes. Art. 11(6) sourcing is the ordinary payer-residence rule with a PE / fixed-base carve-in. Art. 11(7) is the special-relationship restriction. Any exemption claimed under Art. 11(3) is subject to the Art. 27A principal purpose test — routing a loan through a State-guaranteed structure principally to obtain the exemption is squarely within Article 27A.

Royalties

Rate	10 per cent of the gross amount — Art. 12(2), conditional on the recipient being the beneficial owner. A single flat ceiling covering royalties and fees for technical services alike, with no split by type and no time-tiering. This is the simplest rate article of the ten treaties in this batch. IT was not changed by the 2018 protocol: Article 12 carries no amendment marker of any kind, and 10 per cent has been the rate since the Agreement took effect.
Where this comes from	Article 12, paragraph 2

Rate

10 per cent of the gross amount — Art. 12(2), conditional on the recipient being the beneficial owner. A single flat ceiling covering royalties and fees for technical services alike, with no split by type and no time-tiering. This is the simplest rate article of the ten treaties in this batch. IT was not changed by the 2018 protocol: Article 12 carries no amendment marker of any kind, and 10 per cent has been the rate since the Agreement took effect.

Where this comes from

Article 12, paragraph 2

Art. 12(3) is a single composite definition covering copyright of literary, artistic or scientific work including cinematograph films and films or tapes for radio or television broadcasting, any patent, trade mark, design or model, plan, secret formula or process, the use of or right to use industrial, commercial or scientific equipment, and information concerning industrial, commercial or scientific experience. Equipment royalties are inside the definition and take the same 10 per cent — unlike the Australia and Canada treaties, where equipment royalties sit in their own sub-paragraph with a lower rate, there is nothing to gain here by characterising a payment as an equipment royalty. Art. 12(5) PE / fixed-base override; Art. 12(6) sourcing; Art. 12(7) special-relationship restriction.

Fees for technical services

Rate	10 per cent of the gross amount — the same single ceiling as royalties, Art. 12(2). Royalties and FTS do not carry different rates on this treaty and never have.
Make-available requirement	No
Where this comes from	Article 12, paragraph 4

There is no make-available requirement. Art. 12(4) defines fees for technical services as 'any payment for the provision of services of managerial, technical or consultancy nature by a resident of a Contracting State in the other contracting state, but does not include payment for activities mentioned in paragraph 2(k) of Article 5 and Article 15 of the Agreement.' Three points, in order of practical importance. First, there is no technology-transfer, enduring-benefit or make-available condition; a routine management or consultancy fee is caught. Second — and this is the qualifier most often dropped — the definition contains its own territorial nexus: the services must be provided by a resident of one State in the other contracting state. On the face of the text, services performed entirely outside India by a Chinese resident for an Indian payer do not answer the definition at all, whatever the payer's residence. That is a materially narrower FTS article than the France treaty's, which has no such requirement, and it makes the place of performance the decisive fact. Third, two exclusions: activities mentioned in Article 15 (dependent personal services, i.e. Employment income) and activities mentioned in 'paragraph 2(k) of Article 5'. That second cross-reference is now broken and the defect should be recorded rather than smoothed over. The 2018 Protocol omitted and substituted the whole of Article 5. The substituted Article 5(2) runs from (a) to (i) and has no sub-paragraph (k). The construction and service PE limbs that a paragraph 2(k) would have contained now sit in the new Article 5(3)(a) and 5(3)(b). So Art. 12(4) as it now stands points to a paragraph that no longer exists. The evident intention — carried through explicitly in the new Art. 5(3)(b), which excludes from the service PE limb 'services other than technical services as defined in Article 12' — is that Article 5 and Article 12 are meant to be mutually exclusive: construction and service PE activity is taxed under Article 7 on net profits, and technical services are taxed under Article 12 at 10 per cent gross. Anyone arguing the boundary should note that the drafting no longer says so cleanly in one direction, and should check the notified Gazette text of S.O. 2562(E) dated 17-7-2019.

Capital gains on shares

Treatment	Full source-state taxing right, with no rate cap, no threshold and no residence-only residual rule. Article 13 was not touched by the 2018 Protocol. Art. 13(4): gains from the alienation of shares of the capital stock of a company the property of which consists directly or indirectly principally of immovable property situated in a Contracting State may be taxed in that State. Art. 13(5) — the sweep-up, and the paragraph that actually governs an ordinary share sale: 'Gains from the alienation of any property other than that referred to in the preceding paragraphs of this Article, arising in A contracting state, may be taxed in that contracting state.' There is no paragraph anywhere in Article 13 conferring exclusive residence-State taxation on gains other than the shipping and aircraft rule in para 3. So a Chinese resident's gain on shares of an Indian company is taxable in India under domestic law, and the treaty restricts nothing. Contrast France, where Art. 14(6) gives a genuine residence-only exemption for sub-10-per-cent participations; this treaty has no equivalent.
Grandfathering	None, and none is needed — the treaty has never conferred a residence-State exemption on share gains, so there was nothing to grandfather. No acquisition-date cut-off, no transition rate, no LOB condition attached to Article 13.
Conditions	The only overlay is Article 27A, the principal purpose test inserted by the 2018 Protocol, which applies to every benefit under the Agreement including any relief claimed under Article 13. There is no MLI Art. 9 modification because the MLI does not apply to this treaty, so the Art. 13(4) real-property-rich test is not subject to a 365-day look-back and is not extended to partnership or trust interests — it remains a point-in-time test confined to 'shares of the capital stock of a company'. That is a meaningful difference from Australia, Canada and France, all three of which have the MLI Art. 9 look-back. Note also that Art. 13(4) says only 'principally' and does not state a percentage; unlike the France treaty there is no carve-out for immovable property used in the company's industrial or commercial operations.
Where this comes from	Article 13, paragraph 5, with 4 for real-property-rich companies

Permanent establishment

Construction or installation PE	183 days, expressed in days rather than months — Art. 5(3)(a) as substituted by the 2018 protocol. The limb covers 'a building site or construction, installation or assembly project or supervisory activities in connection therewith, but only if such site, project or activities last more than 183 days'. Supervision is expressly inside the limb, unlike the France treaty. And the contract-splitting rule is built into the article itself, which is unusual and is a direct consequence of the bilateral protocol taking the place of the MLI: for the sole purpose of determining whether the 183 days has been exceeded, where an enterprise carries on activities at such a place during periods that in the aggregate do not exceed 183 days, and connected activities are carried on at the same site or project during different periods each exceeding 30 days by one or more enterprises closely related to the first enterprise, those different periods are added to the first enterprise's period. This is the substance of MLI Art. 14 written into the treaty text. Separately, Art. 5(2)(i) makes an installation or structure used for the exploration or exploitation of natural resources a PE, but only if so used for more than 183 days.
Service PE	183 days in any twelve-month period — Art. 5(3)(b) as substituted by the 2018 protocol, and every qualifier in the limb matters. The full text: 'the furnishing of services other than technical services as defined in article 12 (Royalties and Fees for Technical Services), by an enterprise of a Contracting State through employees or other personnel in the other Contracting State, but only if activities of that nature continue for the same or connected project within that Contracting State for a period or periods aggregating more than 183 days within any twelve-month period commencing or ending in the fiscal year concerned.' Four qualifiers, all load-bearing: (1) technical services as defined in Article 12 are excluded from this limb altogether, so the article is designed not to overlap with the 10 per cent gross charge; (2) the same-or-connected-project limitation; (3) 'more than' 183 days, not 183 or more; (4) the twelve-month window must commence or end in the fiscal year concerned, which is a narrower framing than a free-floating rolling twelve months. Unlike Canada there is no related-enterprise trigger dispensing with the day count — services for a Chinese group company are subject to the same 183-day test as services for a third party. The protocol did change this threshold: the whole of Article 5 was omitted and substituted, so the pre-2018 service PE provision (whatever its terms — only the substituted text is available here) no longer applies to periods governed by the amended Agreement.
Agency PE	Yes — Art. 5(5) as substituted, and it is the full beps Action 7 dependent-agent test written into the treaty text without any need for the MLI. A PE arises where a person acting in a Contracting State on behalf of an enterprise of the other State (a) 'habitually concludes contracts, or habitually plays the principal role leading to the conclusion of contracts that are routinely concluded without material modification by the enterprise', and those contracts are (i) in the name of the enterprise, or (ii) for the transfer of ownership of, or the granting of the right to use, property owned by the enterprise or which it has the right to use, or (iii) for the provision of services by that enterprise; or (b) habitually maintains a stock of goods from which he regularly delivers on behalf of the enterprise. The carve-out: unless the person's activities are limited to those in Art. 5(4) which, exercised through a fixed place of business, would not make it a PE. Art. 5(6)(a) is the modern independent-agent rule: the safe harbour is unavailable where a person acts exclusively or almost exclusively on behalf of one or more enterprises to which IT is closely related — with no requirement to show non-arm's-length dealings, unlike the pre-MLI France and the still-current Canada tests. Art. 5(6)(b) supplies the 'closely related' definition inside the article: control, or direct or indirect possession of more than 50 per cent of the beneficial interest (or, for a company, more than 50 per cent of the aggregate vote and value of the shares or of the beneficial equity interest).
Where this comes from	Article 5

The whole of Article 5 was omitted and substituted by the Protocol notified on 17-7-2019 — this is the single largest change the Protocol made. Art. 5(2) is an inclusive list running (a) to (i) and includes (g) a warehouse in relation to a person providing storage facilities for others and (h) a farm, plantation or other place where agriculture, forestry, plantation or related activities are carried on. Note what is not there: unlike the Australia, Canada and France treaties, the substituted Art. 5(2) contains no 'sales outlet' or 'premises for receiving or soliciting orders' item. Art. 5(4) preparatory-and-auxiliary exceptions are five, with (e) framed as a general 'any other activity of a preparatory or auxiliary character' catch-all rather than the itemised advertising/information/research list used elsewhere. There is no anti-fragmentation rule — the 2018 Protocol adopted the beps agency and contract-splitting provisions but did not adopt the MLI Art. 13(4) anti-fragmentation rule, and no MLI applies. So splitting preparatory activities across closely related enterprises is not caught by any provision of this treaty, though Article 27A remains available. Art. 5(7) is the standard subsidiary-is-not-a-PE rule. Article 4(3), also substituted, resolves dual residence of non-individuals by competent-authority mutual agreement having regard to place of effective management, place of incorporation and other relevant factors, and provides that absent agreement the person 'shall not be entitled to any relief or exemption from tax provided by this Agreement except to the extent and in such manner as may be agreed upon by the competent authorities' — the softer of the two MLI Art. 4 formulations.

Anti-abuse: limitation of benefits, and the MLI

LOB	No limitation-of-benefits article and no subject-to-tax clause. The anti-abuse work is done entirely by Article 27A, by the beneficial-ownership conditions in Arts. 10, 11 and 12, by the new Art. 1(2) fiscally-transparent-entity rule, and by the new Art. 4(3) dual-resident rule. Because there is no LOB, the principal purpose test stands alone and there is no question of it applying alongside or in place of an existing LOB.
PPT	Yes, and IT is in the treaty itself, not in A synthesised text. Article 27A, entitlement to benefits, inserted by the Protocol notified on 17-7-2019, reads: 'Notwithstanding the other provisions of this Agreement, a benefit under this Agreement shall not be granted in respect of an item of income if it is reasonable to conclude, having regard to all relevant facts and circumstances, that obtaining that benefit was one of the principal purposes of any arrangement or transaction that resulted directly or indirectly in that benefit, unless it is established that granting that benefit in these circumstances would be in accordance with the object and purpose of the relevant provisions of this Agreement.' This is word for word the MLI Art. 7(1) principal purposes test, adopted bilaterally. Two consequences follow. First, its effective date is governed by the amending Protocol and the notification of 17-7-2019, not by MLI Art. 35 — so the dates differ from every other treaty in this batch and must be taken from the Protocol's own entry-into-force provision. Second, because it sits in the treaty text, it is applied as a treaty article and not as an overlay, and the closing 'unless' limb — that the benefit would be in accordance with the object and purpose of the relevant provisions — is an integral part of the article and must never be truncated off.
Subject to tax	None. Two adjacent provisions do similar work: Art. 4(3) denies relief to an unresolved dual-resident non-individual except as the competent authorities agree; and Art. 1(2) restricts treaty access for income derived by or through a wholly fiscally transparent entity or arrangement to the extent the income is treated as that of a resident for that State's tax purposes.
Where this comes from	Article 27A

No synthesised text exists for india-china. On the evidence available here the MLI has not been applied to modify this Agreement. That absence does not mean the treaty lacks beps minimum-standard protection: the two States achieved the same result bilaterally through the Protocol notified on 17-7-2019, which inserted the beps preamble, the fiscally-transparent-entity rule, the modern dual-resident tie-break, the beps permanent establishment article and — decisively — a principal purpose test as article 27A of the treaty itself. So a practitioner looking for the PPT on this treaty must look at Article 27A, not at a synthesised text. This should be re-verified against the OECD depositary before publication, since a synthesised text can be prepared and published after the fact.

The protocols, in order

A treaty read without its protocols is a wrong answer.

Notification No. S.O. 2562(E) [No. 54/2019 / F.No. 503/02/2008-ftd-II], dated 17-7-2019 — the only amending notification, giving effect to the amending Protocol. It is a substantial beps-driven rewrite and it is essential to know exactly what it did and did not touch.
What the 2019-notified protocol changed, identified from the amendment markers in the consolidated text: (1) the title of the Agreement, from avoidance of double taxation to 'elimination of double taxation with respect to taxes on income and the prevention of tax evasion and avoidance'; (2) the preamble, replaced with the beps Action 6 language — intending to eliminate double taxation 'without creating opportunities for non-taxation or reduced taxation through tax evasion or avoidance (including through treaty-shopping arrangements aimed at obtaining reliefs provided in this Agreement for the indirect benefit of residents of third States)'; (3) article 1, which now carries a new para 2 on fiscally transparent entities and arrangements; (4) Article 2(3)(a), the Chinese taxes covered; (5) article 4(3), the dual-resident tie-break for non-individuals; (6) the whole of article 5, omitted and substituted — see pe, this is the largest single change; (7) Article 7(1), business profits; (8) article 11(3), the interest exemption, replaced with a much wider provision; (9) Article 23, elimination of double taxation, both the Chinese and the Indian limbs; (10) article 26, exchange of information, replaced with the modern standard including the bank-secrecy override; (11) new article 27A, entitlement to benefits, inserted — a principal purpose test written directly into the treaty; (12) the original Protocol para 3 was omitted and a new para 3 substituted, defining the institutions for the Art. 11(3) interest exemption.
What IT did not change, which answers the question directly: article 10 (dividends), article 12 (royalties and fees for technical services) and article 13 (capital gains) carry no amendment marker anywhere. The protocol did not change the royalty or FTS rate. Both stood at 10 per cent in 1994 and both stand at 10 per cent now. Nor did it touch the FTS definition in Art. 12(4), the dividend rate in Art. 10(2), or any part of the capital gains article.
The protocol available here is the original Protocol of 18 July 1994 shown as amended — para 1 (penalties are not 'tax' for Art. 3(1)(d)), para 2 (the Art. 8 exemption extends to the Chinese business tax and to any similar Indian tax imposed after signature), the old para 3 struck through as omitted, and the substituted para 3 defining the Art. 11(3) institutions. The standalone text of the amending Protocol itself is not available here, so its date of signature, its own entry-into-force article and its effect dates are not visible.

The words themselves

Quoted from the treaty as notified.

Notwithstanding the other provisions of this Agreement, a benefit under this Agreement shall not be granted in respect of an item of income if it is reasonable to conclude, having regard to all relevant facts and circumstances, that obtaining that benefit was one of the principal purposes of any arrangement or transaction that resulted directly or indirectly in that benefit, unless it is established that granting that benefit in these circumstances would be in accordance with the object and purpose of the relevant provisions of this Agreement.

Article 27A, paragraph sole paragraph of the treaty as notified.

any payment for the provision of services of managerial, technical or consultancy nature by a resident of a Contracting State in the other Contracting State, but does not include payment for activities mentioned in paragraph 2(k) of Article 5 and Article 15 of the Agreement

Article 12, paragraph 4 of the treaty as notified.

the furnishing of services other than technical services as defined in Article 12(Royalties and Fees for Technical Services), by an enterprise of a Contracting State through employees or other personnel in the other Contracting state, but only if activities of that nature continue for the same or connected project within that Contracting State for a period or periods aggregating more than 183 days within any twelve-month period commencing or ending in the fiscal year concerned.

Article 5, paragraph 3(b) of the treaty as notified.

interest arising in a Contracting State and paid to the Government, a political subdivision or a local authority, the Central Bank or any financial institution wholly owned by the Government of the other Contracting State, or paid on loans guaranteed or insured by the Government, a political subdivision or a local authority, the Central Bank or any financial institution wholly owned by the Government of the other Contracting State, shall be exempt from tax in the first-mentioned State.

Article 11, paragraph 3 of the treaty as notified.

Gains from the alienation of any property other than that referred to in the preceding paragraphs of this Article, arising in a Contracting State, may be taxed in that Contracting State.

Article 13, paragraph 5 of the treaty as notified.

habitually concludes contracts, or habitually plays the principal role leading to the conclusion of contracts that are routinely concluded without material modification by the enterprise

Article 5, paragraph 5(a) of the treaty as notified.

What to watch

The 2018 Protocol did not touch the rates. Dividends, interest, royalties and fees for technical services all stood at 10 per cent before it and all stand at 10 per cent after it. Every rate on this treaty is a flat 10 per cent with no threshold, no tier and no time-limited tranche — the cleanest rate structure of the ten treaties in this batch. What the Protocol changed was the PE article, the anti-abuse architecture and the interest exemption.
It did change the service PE threshold, because it replaced the whole of Article 5. The current figure is more than 183 days for the same or connected project within a twelve-month period commencing or ending in the fiscal year concerned, and technical services within Article 12 are excluded from the limb entirely. Any assessment for a period governed by the pre-amendment Agreement needs the earlier Article 5, which is not available here.
The Article 12(4) FTS definition contains a territorial requirement that is easy to read past: the services must be provided by a resident of one State in the other contracting state. Offshore services performed wholly outside India arguably fall outside the definition on its own terms, independently of any source rule. This is a narrower gateway than the France treaty's equivalent definition, which has no place-of-performance requirement.
Article 12(4) still excludes 'activities mentioned in paragraph 2(k) of Article 5' although the substituted Article 5(2) stops at sub-paragraph (i). The cross-reference is dangling. The evident scheme — confirmed from the other direction by Article 5(3)(b), which excludes Article 12 technical services from the service PE limb — is that the two articles are mutually exclusive. Flag the defect rather than paper over it, and check the Gazette text of S.O. 2562(E) before litigating the boundary.
The Article 11(3) interest exemption is exceptionally wide because it operates on guaranteed and insured loans as well as on loans made by the listed bodies. A commercial loan from a private Chinese lender to an Indian borrower carries no Indian withholding at all if it is guaranteed or insured by, for instance, the China Export & Credit Insurance Corporation. The mirror applies to ecgc-backed lending into China.
The Article 11(3) exemption cannot be applied from the article alone. Protocol para 3, as substituted, is where the eleven named institutions and the two open competent-authority limbs live. An institution not named and not agreed does not qualify, and majority government ownership is not enough — the test is wholly owned.
The principal purpose test is Article 27A of the treaty, not a synthesised-text overlay, and its effective date runs from the amending Protocol rather than from MLI Article 35. Do not import the 1 April 2020 / 1 April 2021 dates that apply to the MLI-modified treaties in this batch.
Because the MLI does not apply, the Article 13(4) real-property-rich share test has no 365-day look-back and is confined to 'shares of the capital stock of a company' — it does not reach partnership or trust interests. Where the same transaction would be caught under the Australia, Canada or France treaties by MLI Article 9, it may not be caught here.
Equally, because the MLI does not apply, there is no anti-fragmentation rule on this treaty. The 2018 Protocol adopted the beps agency PE test and the beps contract-splitting rule but stopped short of anti-fragmentation, and Article 5(4) therefore protects mixed preparatory activity across closely related enterprises in a way it no longer does under the France treaty.
Article 13 gives India an unrestricted right to tax share gains. There is nothing in this treaty resembling the France sub-10-per-cent exemption or the Mauritius-style grandfathering, and there never was.
Article 1(2) now restricts treaty access for income derived through fiscally transparent entities. Fund and partnership structures interposed between the two States need to be tested against it before any rate claim is made.
The English text prevails over the Hindi and Chinese texts in case of divergence — expressly stated in the concluding clause of both the Agreement and the Protocol. That is worth knowing where a rendering question arises.

What this page does not tell you. The date of signature, the entry-into-force date and the effect dates of the amending Protocol are not established. Only the consolidated Agreement with amendment markers is available here; the amending Protocol is not reproduced as a standalone instrument. Notification No. S.O. 2562(E) dated 17-7-2019 is the only date visible. Every statement about when Article 27A, the new Article 5 and the new Article 11(3) began to apply depends on that Protocol's own effect article, and it must be obtained from the Gazette before publication. The text of article 5 as IT stood before the 2018 protocol is not established. The whole article was omitted and substituted, and only the substituted version is available here. Any question about a construction, service or agency PE for an earlier period requires the original article — including the original paragraph 2(k) to which Article 12(4) still refers. The original Protocol para 3, omitted by the amending Protocol, is shown only as '***'. Its former content is not established. Whether the dangling cross-reference in Art. 12(4) to 'paragraph 2(k) of Article 5' is an artefact of the copy read here or is present in the notified Gazette text of S.O. 2562(E) has not been checked. Whether any further institutions have been agreed between the competent authorities under the open limbs of Protocol para 3(b)(i)(G) and 3(b)(ii)(F) since 2019 is not established. Whether a synthesised text may yet be prepared for this treaty should be re-verified against the OECD depositary; this record relies only on the absence of any synthesised text in the sources used here. Articles 22 (other income), 23 (elimination of double taxation, both limbs of which were amended) and 24 (non-discrimination) were seen only in passing and are not summarised here.

The India–China tax treaty