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29-Aug-2019 10:29

Placing reliance on the aforesaid jurisprudence, a view can be taken that the explanation cannot be read as retrospective in nature.With this proposal being inserted in the Act that terms not defined under the DTAA but defined under Act, it needs to be seen whether it settles the controversy or add on more controversy to the existing one.Double Taxation Avoidance Agreement (DTAA) is bilateral economic agreement between two nations aiming to avoid or eliminate double taxation of the same income in two countries.Under the existing provisions of section 90 of the Income Tax Act (the Act), any term used but not defined under the Act or in the DTAA entered into between Government of India and Government of country outside India u/s 90(1)/90A(1) shall have meaning assigned to it in the notification issued by the Central Government in the Official Gazette in this behalf, unless the context otherwise requires, provided the same is not inconsistent with the provisions of the Act or the agreement.Under the current scenario, where there are various terms which are not defined under the DTAA but defined under the Act, there is certain possibility of numerous amendments made through Indian tax laws affecting taxability of residents of one or more contracting states, it is relevant in this context, especially after the said amendment is brought in, to notify any significant change made in taxation laws in India and get the taxability agreed upon with the country with which the agreement has been entered into.At this stage, it is also crucial to take into consideration that as per DTAA, Article 3 states that any term not otherwise defined shall, unless the context otherwise requires, have the meaning which it has under the laws of that Contracting State relating to the taxes which are the subject of this Convention."Elucidate" and "explicate" are both million-dollar words to describe the action of explaining something.

However, it is pertinent to note here that the explanation begins with the phrase 'for removal of doubts, it is hereby declared that' which indicates that the explanation is intended to be clarificatory in nature and thereby the amendment may be considered to be retrospective by revenue authorities.

However, there is no specific clarity in Memorandum with respect to the rationale behind the amendment.

One of the intentions behind the amendment could be to import' process royalty' concept existing under the Act to the DTAA where there is no such express definition of process under the DTAAs entered into by India with other countries.

In line with the recommendation of Income tax Simplification Committee in its final report, it has now been proposed to insert Explanation 4 to section 90 and section 90A to provide that where any term used in agreement entered into under section 90(1)/90A(1) of the Act is defined under the said agreement, the said term shall be assigned the meaning as provided in the said agreement and where the term is not defined in the agreement, but is defined in the Act, it shall be assigned meaning as defined in the Act and any explanation issued by the Central government.

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As per Memorandum to Finance Bill, 2017, as part of rationalization measures, the proposed amendment has been inserted with a view to bring in more clarity in the Act in respect of interpretation of 'terms' used in DTAA for the purpose of its application in order to reduce the avoidable litigation related to taxation of non-residents.

The phrase 'unless the context otherwise requires' is absent under the proposed amendment to the Act.