Notification No. 30/2014 , Dated 6-6-2014
Whereas, an agreement (hereinafter referred to as
the said agreement) between the Government of the Republic of India and the
Government of the Principality of Liechtenstein, for the exchange of information on tax matters was signed at
Berne, Switzerland on the 28th
day of March, 2013;
2 .And whereas, the date of entry into force of the said agreement is the 20th
of January, 20014, being one
month from the relevant date on which the last of
the notifications of completion of the procedures as required by the respective
laws for entry into force of the said agreement was received, in accordance with paragraph 1 Article 11 of the said
agreement:
3. And whereas, the said agreement shall have
effect for all requests made in respect of taxable periods beginning on or after 1st April,
2013, in accordance with paragraph 2 of the Article 11
of the said agreement;
4. Now, therefore, in exercise of the powers
confirmed by section 90 of the
Income tax Act, 1961 (43 of 1961), the Central Government hereby directs that
the said agreement between the Government of the Republic of India and the
Government of the Principality of Liechtenstein on the
exchange of information on tax matters, as set out in the annexure
hereto, shall have effect for all requests made in
respect of taxable periods beginning on or after 1st
April, 2013.
Annexure
AGREEMENT BETWEEN THE GOVERNMENT OF THE
REPUBLIC OF INDIA AND THE GOVERNMENT OF THE PRINCIPALITY OF LIECHTENSTEIN ON
THE EXCHANGE OF INFORMATION ON TAX
MATTERS
The Government of the Republic of India and the
Government of the Principality of Liechtenstein,
Desiring to facilitate the
exchange of information with respect to taxes,
Have agreed as follows:
ARTICLE 1
OBJECT AND SCOPE OF THE
AGREEMENT
The competent authorities of the Contracting
Parties shall provide assistance through exchange of information that is foreseeably relevant to the
administration and enforcement of the domestic laws of the Contracting Parties
concerning taxes covered by this Agreement. Such information shall include
information that is foreseeably relevant to the determination, assessment and
collection of such taxes with respect to persons
subject to such taxes, the recovery and enforcement of tax claims, or the
investigation or prosecution of tax matters in relation to such persons.
Information shall be exchanged in accordance with the
provisions of this Agreement and shall be treated as confidential in the manner
provided in Article 8. The rights and safeguards secured to persons by the laws
or administrative practice of the requested Party remain applicable to the
extent that they do not unduly prevent or delay effective
exchange of information.
ARTICLE 2
JURISDICTION
A requested Party is not obligated to provide
information which is neither held by its authorities nor in the possession or
control of persons who are within its territorial jurisdiction.
ARTICLE 3
TAXES COVERED
1. This agreement shall apply to taxes of every
kind and description imposed in the Contracting Parties.
2. This Agreement shall also apply to any
identical or substantially similar taxes imposed after the
date of signature of this Agreement in addition to, or in place of, the
existing taxes. The competent authorities of the Contracting Parties shall
notify each other of any substantial changes to the taxes covered by this
Agreement and the related information gathering measures.
ARTICLE 4
DEFINITIONS
1. For the purposes of this Agreement, unless
otherwise defined:
(a) the term “India” means the
territory of India and includes the territorial sea and airspace above it, as
well as any other maritime zone in which India has sovereign rights, other
rights and jurisdiction, according to the Indian law and in
accordance with international law, including the U.N.
Convention on the Law of the Sea;
(b) the term “Liechtenstein”
means, when used in a geographical sense, the area of the sovereign territory of
the Principality of Liechtenstein;
(c) the term “Contracting Party”
means India or Liechtenstein as the context requires;
(d) the term “competent
authority” means
(i) in the
case of India, the Finance Minister, Government of India, or its authorized
representative;
(ii) in the
case of Liechtenstein, the Government of the Principality of Liechtenstein, or
its authorised representative;
(e) the term “person” includes
an individual, a company, a
dormant inheritance and any other body of persons;
(f) the term “company” means
any body corporate, as well as entities and special asset endowments that are
treated as a body corporate for tax purposes;
(g) the term “publicly traded
company” means any company whose principal class of shares is listed on a recognised stock
exchange provided its listed shares can be ‘ readily
purchased or sold by the public. Shares can be purchased or sold “by the public”
if the purchase or sale of shares is not implicitly or
explicitly restricted to a limited group of investors;
(h) the term “principal class
of shares” means the class or classes
of shares representing a majority of the voting power
or of the statutory capital of the company.
(i) the term “recognised stock
exchange” means
(i) in
India, the National Stock Exchange, the Bombay Stock
Exchange, and any other stock
exchange recognised by the Securities and
Exchange Board of India;
(ii) for
Liechtenstein, any stock exchange that fulfils the
material requirements of Article 4 of the directive 2004/39/EC of the European
Parliament and the Council of 21 April 2004; and
(iii) any
other stock exchange which the competent authorities
agree to recognise for the purposes of this Agreement.
(j) the term “collective investment fund or scheme” means any
pooled investment vehicle, irrespective of legal form.
(k) the term “public collective
investment fund or scheme” means any collective .
investment fund or scheme provided the units, shares
or other interests in the fund or scheme can be readily purchased, sold or
redeemed by the public. Units, shares or other interests in the fund or scheme
can be readily purchased, sold or redeemed “by the public” if the purchase, sale
or redemption is not implicitly or explicitly restricted to a limited group of
investors;
(l) the term “tax” means any
tax to which this Agreement applies;
(m) the term “requesting Party”
means the Contracting Party requesting information;
(n) the term “requested Party”
means the Contracting Party requested to provide information;-
(o) the term “information
gathering measures” means laws and administrative or judicial procedures that
enable a Contracting Party to obtain and provide the requested information;
(p) the term “information” means
any fact, statement, document or
record in whatever form;
2 . As regards the application of this Agreement
at any time by a Contracting Party, any term not defined therein shall, unless
the context otherwise requires or the competent authorities agree to a common
meaning pursuant to the provisions of . Article 10 of this Agreement, have the
meaning that it has at that time under the law of that Party, any meaning under
the applicable tax laws of that Party prevailing over a meaning given to the
term under other laws of that Party.
ARTICLE 5
EXCHANGE OF
INFORMATION UPON REQUEST
1. The competent authority of the requested Party
shall provide upon request information for the purposes referred to in Article
1. Such information shall be exchanged without regard to whether the requested
Party needs such information for its own tax purposes or whether the conduct
being investigated would constitute a crime under the laws of the requested
Party if such conduct occurred in the requested Party.
2 .If the information in the possession of the
competent authority of the requested Party is not sufficient to enable it to
comply with the request for information, that Party shall use all relevant
information gathering measures to provide the requesting Party with the
information requested, notwithstanding that the requested Party may not need
such information for its own tax purposes.
3. If specifically requested by the competent
authority of the requesting Party, the competent authority of the requested
Party shall provide information under this Article, to the extent allowable
under its domestic laws, in the form of depositions of witnesses and
authenticated copies of original records.
4. Each Contracting Party shall ensure that its
competent authority, for the purposes of this Agreement, has the authority to
obtain and provide upon request:
(a)
information held by banks, other financial institutions, and any person, acting
in an agency or fiduciary capacity including nominees and trustees;
(b)
information regarding the ownership of companies, partnerships, collective
investment funds or schemes, trusts, foundations and other persons, including,
within the constraints of Article 2, ownership information on all such persons
in an ownership chain; in the case of collective investment funds or schemes,
information . on shares, units and other interests; in the case of trusts,
information on settlors, . trustees and beneficiaries; in the case of
foundations, information on founders, members of the foundation council and
beneficiaries. Further, this Agreement does not create an obligation on the
Contracting Parties to obtain or provide ownership information with respect to
publicly traded companies or public collective investment funds or schemes
unless such information can be obtained without giving rise to disproportionate
difficulties.
5. The competent authority of the requesting
Party shall provide the following information in writing to the competent
authority of the requested Party when making a request for information under the
Agreement to demonstrate the foreseeable ; relevance of the information sought
to the request:
(a) the
identity of the person under examination or investigation;
(b) the
taxable period for which information is requested;
(c) a
statement of the information sought including its nature and the form in which
the applicant Party wishes to receive the information from the requested
Party;
(d) the tax
purpose for which the information is sought;
(e) grounds
for believing that the information requested is foreseeably relevant to the
administration and enforcement of the domestic tax laws of the applicant Party
with regard to the person specified in subparagraph (a);
(f) grounds
for believing that the information requested is present in the requested Party
or is in the possession or control of a person within the jurisdiction of the
requested Party;
(g) to the
extent known, the name and address of any person believed to be in possession or
control of the requested information;
(h) a
statement that the request is in conformity with the laws and administrative
practices of the requesting Party, that if the requested information was within
the jurisdiction of the requesting Party then the competent authority of the
requesting Party would be able to obtain the information under the laws of the
requesting Party ; or in the normal course of administrative practice and that
it is in conformity with this Agreement;
(i) a
statement that the requesting Party has pursued all means available in its own
.: territory to obtain the information, except those that would give rise to
disproportionate difficulties.
6. The competent authority of the requested Party
shall forward the requested . information as promptly as possible to the
requesting Party. To ensure a prompt response, the competent authority of the
requested Party shall:
(a) Confirm
receipt of a request in writing to the competent authority of the requesting .
Party and shall notify the competent authority of the requesting Party of
deficiencies in the request, if any, within 60 days of the receipt of the
request.
(b) If the
competent authority of the requested Party has been unable to obtain and provide
the information within 90 days of receipt of the request, including if it
encounters obstacles in furnishing the information or it refuses to furnish the
information, it shall immediately inform the requesting Party, explaining the
reason for its inability, the nature of the obstacles or the reasons for its
refusal.
ARTICLE 6
TAX EXAMINATIONS ABROAD
1. By reasonable notice given in advance, the
applicant Party may request that the requested Party allows representatives of
the competent authority of the applicant Party to enter the territory of the
requested Party, to the extent permitted under its laws, to interview
individuals and examine records with the prior written consent of the
individuals or other persons concerned. The competent authority of the requested
Party shall notify the competent authority of the applicant Party of the time
and place of the meeting with the individuals concerned
2. At the request of the competent authority of
the applicant Party, the competent authority of the requested Party may allow
representatives of the competent authority of the applicant Party to be present
at the appropriate part of a tax examination in the requested Party.
3. If the request referred to in paragraph 2 is
acceded to, the competent authority of the requested Party conducting the
examination shall, as soon as possible, notify the competent authority of the
applicant Party about the time and place of the examination, the authority or
official designated to carry out the examination and the procedures and
conditions required by the requested Party for the conduct of the examination.
All decisions with respect to the conduct of the tax . examination shall be made
by the requested Party conducting the examination.
ARTICLE 7
POSSIBILITY OF DECLINING A REQUEST FOR
INFORMATION
1. The competent authority of the requested Party
may decline to assist:
(a) where
the request is not made in conformity with this Agreement and, in particular,
where the requirements of Article 5 are not met; or
(b) where
the requesting Party has not pursued all means available in its own territory to
obtain the information, except where recourse to such means would give rise to
disproportionate difficulty; or
(c) where
disclosure of the information would be contrary to public policy (ordre public)
of the requested Party.
2. This Agreement shall not impose on a
Contracting Party the obligation:
(a) to
provide information subject to legal privilege, or any trade, business,
industrial, commercial or professional secret or trade process, provided that
information described in paragraph 4 of Article 5 shall not by reason of that
fact alone be treated as such a secret or trade process; or
(b) to carry
out administrative measures at variance with its laws and administrative
practices, provided nothing in this subparagraph shall affect the obligations of
a Contracting Party under paragraph 4 of Article 5.
3. A request for information shall not be refused
on the ground that the tax claim giving rise to the request is disputed.
4. The requested Party shall not be required to
obtain and provide information which the requesting Party would be unable to
obtain under its own laws made in similar circumstances from the requested Party
under this Agreement.
5. The requested Party may decline a request for
information if the information is requested by the applicant Party to administer
or enforce a provision of the tax law of the applicant Party, or any requirement
connected therewith, which discriminates against a national of the requested
Party as compared with a national of the applicant Party in the same
circumstances.
ARTICLE 8
CONFIDENTIALITY
1. All information provided and received by the
competent authorities of the Contracting Parties shall be kept confidential.
2. This information may be disclosed only to
persons or authorities (including courts and administrative bodies) of the
Contracting Parties concerned with the purposes specified in Article 1, and used
by such persons or authorities only for such purposes. For these purposes
information may be used in public court proceedings or in judicial
decisions.
3. Such information may not be used for any
purpose other than for the purposes stated in Article 1 without the expressed
written consent of the competent authority of the requested Party.
4. Information received under this Agreement must
not be disclosed to any other State or sovereign territory not party to this
Agreement.
5. Personal data may be transmitted to the extent
necessary for carrying out the provisions of this Agreement and subject to the
provisions of the law of the supplying Party.
6. Information received by the requested Party in
conjunction with a request for assistance under this Agreement shall likewise be
treated as confidential in the requested Party.
ARTICLE 9
COSTS
1. Unless the competent authorities of the
Contracting Parties otherwise agree, ordinary costs incurred in providing
assistance shall be borne by the requested Party, and, subject to the provisions
of this Article, extraordinary costs incurred in providing assistance shall, if
they exceed 500 US Dollars, be borne by the requesting Party.
2. The competent authorities will consult each
other, in advance, in any particular case where extraordinary costs are likely
to exceed 500 US Dollars to determine whether the requesting Party will continue
to pursue the request and bear the cost.
3. The competent authorities shall consult from
time to time with regard to this Article.
4. Ordinary costs include internal administration
costs, any minor external costs and overhead expenses incurred by the requested
Party in reviewing and responding to information requests submitted by the
requested Party. Examples of extraordinary costs incurred in providing
assistance include, but are not limited to the following:
(a) reasonable fees charged by
third parties for copying documents on behalf of the requested Party;
(b) reasonable costs of engaging
interpreters, translators or other agreed experts;
(c) reasonable costs of
conveying documents to the requesting Party;
(d) reasonable litigation costs
of the requested Party in relation to a specific request for information;
and
(e) reasonable costs for
obtaining depositions or testimony.
ARTICLE 10
MUTUAL AGREEMENT PROCEDURE
1. Where difficulties or doubts arise between the
Contracting Parties regarding the implementation or interpretation of this
Agreement, the competent authorities shall endeavour to resolve the matter by
mutual agreement.
2.In addition to the agreements referred to in
paragraph 1, the competent authorities of the Contracting Parties may mutually
agree on the procedures to be used under this agreement.
3. The competent authorities of the Contracting
Parties may communicate with each other directly for purposes of reaching
agreement under this Article.
4. The Contracting Parties may also agree on
other forms of dispute resolution.
ARTICLE 11
ENTRY INTO FORCE
1. This Agreement shall enter into force one
month from the date on which the Contracting Parties have notified each other
that their respective requirements for the entry into force of this Agreement
have been fulfiled. The relevant date shall be the day on which the last
notification is received.
2. Upon the date of entry into force, this
Agreement shall have effect for all requests made but only in respect of taxable
periods beginning on or after 1 April, 2013.
ARTICLE 12
TERMINATION
1. This Agreement shall remain in force until
terminated by either Contracting Party.
2. Either Contracting Party may terminate the
Agreement by serving a written notice of termination to the other Contracting
Party through diplomatic channels.
3. Such termination shall become effective on the
first day of the month following the expiration of a period of six months after
the date of receipt of notice of ; termination by the other Contracting Party.
All requests received up to the effective date of termination shall be dealt
with in accordance with the provisions of the Agreement.
4. After termination of this Agreement, both
Contracting Parties shall remain bound by the provisions of Article 8 with
respect to any information provided and received under this Agreement.
In witness whereof, the undersigned, being duly
authorized thereto, have signed this Agreement.
DONE in duplicate at twenty eighth day of March
2013, each in the Hindi and English languages, all texts being equally
authentic. In case of divergence of interpretation, the English text shall
prevail.
Protocol
to the Agreement between the Government of the
India and the Government of Principality of Liechtenstein on the exchange of
information on tax matters
On the occasion of the signing of the Agreement
between the Government of the . Principality of Liechtenstein and the Government
of India (the “Contracting Parties”) on the exchange of information on tax
matters, the Contracting Parties have agreed upon the following provisions,
which are an integral part of this Agreement:
1. With respect to subparagraph (f) of paragraph
1 of Article 4, it is understood that the term company includes also
establishments (“Anstalten”).
2. With respect to subparagraph a of paragraph 5
of Article 5 , it is understood that it is not necessary to provide the name of
the taxpayer in order to define its identity, if this identity can be determined
from equivalent elements.
3. With respect to paragraph 5 of Article 7, it
is understood that this paragraph does not apply to cases where tax rules,
including the applicable tax rate, differ only on the basis of residence.
4. Formal communications, including requests for
information, made in connection with or pursuant to the provisions of this
Agreement entered into will be in writing directly to the competent authority of
the other Contracting Party at the addresses given below, or such other address
as may be notified by one Contracting Party to the other from time to time. Any
subsequent communications regarding requests for information will be in writing
between the earlier mentioned competent authorities or their authorised
entities, whereas the possibility of direct consultation is being given.
5. Although the Agreement allows only for
requests for information with regard to tax years beginning on or after April 1,
2013, the Agreement provides for exchange of documents or information created in
or derived from a date preceding April 1, 2013, that are foreseeably relevant to
a request relating to tax years beginning on or after April 1, 2013. Such
information may be used only if there is an ongoing . investigation or
examination with respect to a tax year that begins on or after April 1, 2013.
For example:
(a) if
assistance is requested with respect to a taxpayer’s bank transactions occurring
after March 31, 2013, and documents such as, but not limited to, a signature
card for the account in question were executed prior to March 31, 2013, the
Contracting Parties would exchange the documents.
(b) where a
request involves a trust or a foundation and documents such as, as the case may
be, the deed of settlement or the foundation statutes and/or bylaws, were
executed prior to April 1, 2013, the Contracting Parties would exchange the
documents.
6. Liechtenstein and India fully subscribe to the
concept of non-discriminatory tax treatment of each other’s nationals and agree
that, given this Agreement, discriminatory tax treatment based on a lack of tax
transparency or effective exchange of information for tax purposes is not
justified
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