Understanding Double Taxation Avoidance Agreements (DTAA) vs Black Money Controversy in India
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What is ‘Double Taxation’?
Any income, if subjected to taxation twice is double taxation. This income could be salary or remuneration for the services rendered. Or, it could be fees or charges. Or, it could be interest on deposits/investments made. Or, it could be profit on sale of fixed assets or movable assets like shares, gold etc.
Following are some examples of double taxation.
What is ‘Double Taxation Avoidance Agreement’ (DTAA)?
A country enters into a treaty with another country, in order to encourage enterprise and intellectual capital of both the countries. This is done through DTAA. In terms of DTAA, income of a person subjected to taxation in one country (the alien country/country of residence) is not taxed again in another country (home country/country of origin). This is the most common feature of DTAA.
However, in some exceptional cases, the individual is required to pay tax to the country where his income was earned. This is called ‘Withholding Tax’. Usually, ‘withholding tax’ is deducted at source.
Then, the country which received the tax payment issues a ‘Tax Credit’ to the individual and it will be accepted as a valid ‘Tax Credit’ by the country of his residence, at the time of computing the total taxable income of the individual and his tax liability in his home country.
According to the tax treaty between India and Mauritius, capital gains arising from the sale of shares are taxable in the country of residence of the shareholder and not in the country of residence of the company whose shares have been sold. Therefore, a company resident in Mauritius selling shares of an Indian company will not pay tax in India. Since there is no capital gains tax in Mauritius, the gain will escape tax in both the countries altogether.
As on date, India has entered into DTAA with 88 countries.
Why is DTAA most talked about today, in India?
We are all aware that there are a lot of debates and discussions going on in the print and electronic media during the past few days about repatriation of black money stashed away in foreign banks (tax havens). Both UPA and the present NDA government have submitted an affidavit to Supreme Court stating that if we disclose the information relating to individuals having bank accounts in countries with which we have DTAA, it will amount to breach of confidentiality of the persons concerned and will be viewed as violation of the terms of DTAA between two countries. It will hamper further flow of information from these countries. Then, India cannot succeed in its mission of unearthing huge black money lying abroad. Mere accusation like “Assets disproportionate to the known sources of income” will not be accepted as a valid reason for sharing the information by the other countries with India.
My (Author's) Understanding is –
However, it must be our endeavour to target the really huge money first. Then, we may come to catch the small fish.
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Additional Comments As per The Hindu newspaper dated 1st November, 2014 (This is part of an article by Professor Arun Kumar which has been published in above newspaper). This will further clarify a number of points which are raised to create confusion. The article makes it much easier for a layman to understand these points (Full article can be read at the following link : http://www.thehindu.com/opinion/lead/lead-article-secrecy-in-the-name-of-privacy/article6553153.ece ). We are giving here some excerpts from the well written article :
People are also confused about the provisions under the DTAA. The government has argued that data on foreign bank accounts comes under this treaty which does not allow the revelation of names. Thus, the government has repeatedly argued before the Court that it cannot divulge the names. It has further argued that the privacy of individuals would be violated by the revelation of data. These arguments are only designed to stall the revelation of names of some favoured entities.
DTAA is about declared (white) incomes of entities so that tax may be levied in one or the other country and not in both. Black income is not revealed in either of the two countries so there is no question of double taxation. Further, this data would not be available to either of the two countries to be exchanged. It is no wonder then that till date, no data has been supplied to India by any of the countries with which this treaty has been signed. In brief, DTAA is about white incomes and not black incomes, so it is disingenuous to say that in future no data would be given to us if names are given to courts.
There is a clause in these treaties about the exchange of information regarding incomes. This information can be used for purposes of taxation. However, the Indian government has not yet got any information on this ground to unearth black incomes. Further, this clause has a provision for sharing information with courts. Thus, secrecy is not absolute.
The Supreme Court cases on black incomes are a part of court proceedings. So, this information can be legitimately given under DTAA. Further, if the Court passes on the information to the SIT to investigate black incomes, that would also be legitimate. The government’s argument that this would lead to a drying up of information from other countries does not hold water. Also, if new treaties are signed in the future, they can be examined then; they should not be allowed to hold up information from courts now since the present treaty does not prevent it..