The Agreement between the Government of Republic of India
and the Government of Republic of Belarus for the avoidance of double taxation
and the prevention of fiscal evasion with respect to taxes of income
Published in the Gazette of India, Extraordinary, Part II,
Section 3(i), dated 17th July, 1998.
G.S.R.
392(E) dtd. 17.7.1998. - Whereas the
annexed Agreement between the Government of the Republic of India and the
Government of the Republic of Belarus for the avoidance of double taxation and
the prevention of fiscal evasion with respect to taxes on income and on
property (capital) shall enter into force on the Seventeenth day of July, 1998,
in accordance with Article 30 of the said Agreement, thirty days after the
receipt of the later of the notifications by both the Contracting States to
each other of completion of the procedure required by their respective laws for
bringing into force the said Agreement.
Now,
therefore, in exercise of the powers conferred by section 90 of the Income-tax
Act, 1961 (43 of 1961), and section 44-A of the Wealth-tax Act, 1957 (27 of
1957), the Central Government hereby directs that all the provisions of the
said Agreement shall be given effect to in the Union of India.
ANNEXURE
AGREEMENT
BETWEEN
THE GOVERNMENT OF THE REPUBLIC OF INDIA
AND
THE GOVERNMENT OF THE REPUBLIC OF BELARUS
For
The Avoidance of Double Taxation And The Prevention Of Fiscal Evasion With
Respect To Taxes On Income And On Property (Capital).
The
Government of the Republic of India and the Government of the Republic of
Belarus desiring to conclude an Agreement for the avoidance of double taxation
and the prevention of fiscal evasion with respect to taxes on income and on
property (capital) Have agreed as follows:
ARTICLE 1
This
Agreement shall apply to persons who are residents of one or both of the
Contracting States.
ARTICLE 2
1. This Agreement shall apply to taxes on
income and on property (capital) imposed on behalf of a Contracting State or of
its political subdivisions or local authorities, irrespective of the manner in
which they are levied.
2. There shall be regarded as taxes on
income and on property (capital) all taxes imposed on total income, on total
property (capital) or on elements of income or of property (capital) including
taxes on gains from the alienation of immovable property or property other than
immovable property and taxes on the total amounts of wages or salaries paid by
enterprises.
3. The taxes to which this Agreement shall
apply are in particular:
a. In India:
i.
the
income-tax including any surcharge thereon; and
ii.
wealth-tax
(hereinafter referred to as
"Indian Tax"); and
b.
In Belarus:
i.
the
tax on income and profits of enterprises associations and organisations:
ii.
the
income-tax on individuals; and
iii.
the
tax on immovable property
(hereinafter
referred to as "Belarusian tax").
4. The Agreement shall apply also to any
similar or substantially identical taxes which are imposed by either
Contracting State after the date of signature of the Agreement in addition to,
or in place of, the taxes referred to in paragraph 3 above. The competent
authorities of the Contracting States shall notify each other of any
substantial changes which have been made in their respective taxation laws.
ARTICLE 3
1.
In this Agreement, unless the
context otherwise requires:
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 jurisdictions, according to the Indian law and in accordance with
international law and the U. N. Convention on the law of the sea;
b.
the term "Belarus" means
the Republic of Belarus and when used in a geographical sense, means the
territory over which the Republic of Belarus exercises under the laws of the
Republic of Belarus and in accordance with international law sovereign rights
and jurisdiction;
c.
the terms "a Contracting
State" and "the other Contracting State" means as the context
requires, India or the Republic of Belarus;
d.
the term "tax" means
Indian tax or Belarusian tax, as the context requires, but shall not include
any amount which is payable in respect of any default or omission in relation
to the taxes to which this Agreement applies or which represents a penalty
imposed relating to those taxes;
e.
the term "person" includes
an individual, a company, a body of persons and any other entity which is
treated as a taxable unit under the taxation laws in force in the respective
Contracting States;
f.
the term "company" means:
i.
in India, anybody corporate or other
entity which is treated as a company or body corporate under the taxation laws
in force;
ii.
in Belarus, any legal person or any
entity which is treated as a legal person for tax purposes;
g.
the terms "enterprise of a
Contracting State" and "enterprise of the other Contracting
State" mean respectively an enterprise carried on by a resident of a
Contracting State and an enterprise carried on by a resident of the other
Contracting State;
h.
the term "competent
authority" means:
i.
in the case of India, the Central
Government in the Ministry of Finance (Department of Revenue) or their
authorised representative;
ii.
in the case of Belarus, the State
Tax Committee or its authorised representative;
i.
the term "national" means:
i.
any individual possessing the
nationality of a Contracting State;
ii.
any legal person, partnership or
association deriving its status as such from the laws in force in a Contracting
State;
j.
the term "international
traffic" means any transport by a ship or aircraft operated b-,7 an enterprise
of a Contracting State, except when the ship or aircraft is operated solely
between places in the other Contracting State;
k.
the term "fiscal year"
means:
i.
in the case of India, the
"previous year" as defined under section 3 of the Income-tax Act, 1961;
ii.
in the case of Belarus, the calendar
year from lst day of January to 31st day of December of the year.
2. As regards the application of the
Agreement by a Contracting State, any term not defined therein shall, unless
the context otherwise requires, have the meaning which it has under the laws of
that State concerning the taxes to which the Agreement applies.
ARTICLE 4
1. For the purposes of this Agreement, the
term "resident of a Contracting State" means any person who, under
the laws of that State, is liable to tax therein by reason of his domicile,
place of incorporation, residence, place of management or any other criterion
of a similar nature. However, this term does not include any person who is
liable to tax in that State only in respect of income from sources in that
State or property situated therein.
2. Where by reason of the provisions of
paragraph 1 an individual is a resident of both Contracting States, then his
status shall be determined as follows:
a.
he shall be deemed to be a resident
of the State in which he has a permanent home available to him; if he has a
permanent home available to him in both States, he shall be deemed to be a
resident of the State with which his personal and economic relations are closer
(centre of vital interests);
b.
if the State in which he has his
centre of vital interests cannot be determined or if he does not have a
permanent home available to him in either Contracting State, he shall be deemed
to be a resident of the Contracting State in which he has an habitual abode;
c.
if he has an habitual abode in both
States or in neither of them, he shall be deemed to be a resident of the State
of which he is a national;
d.
if each State considers him as its
own national or if he is not a national of either of them, the competent
authorities of the Contracting States shall settle the question by mutual
agreement.
3. Where by reason of the provisions of paragraph
1, a person other than an individual is a resident of both Contracting States,
then it shall be deemed to be a resident of the State in which its place of
effective management is situated. If the State in which its place of effective
management is situated cannot be determined, then the competent authorities of
the Contracting States shall settle the question by mutual agreement.
ARTICLE 5
1. For the purposes of this Agreement, the
term "permanent establishment" means a fixed place of business
through which the business of an enterprise is wholly or partly carried on.
2. The term "permanent
establishment" includes especially:
a. a place of management;
b. a branch;
c. an office;
d. a factory;
e. a workshop;
f. a mine, an oil or gas well, a quarry
or any other place of extraction of natural resources;
g. a warehouse in relation to a person
providing storage facilities for others;
h. a farm, plantation or other place
where agriculture, forestry, plantation, or related activities are carried on;
i. a sales outlet;
j. an installation or structure used
for the exploration or exploitation of natural resources;
k. a building site or construction or
assembly project or supervisory activities in connection therewith only if such
site, project or activity lasts for more than six months.
3. Notwithstanding the preceding provisions
of this Article, the term permanent establishment" shall be deemed not to
include:
a. the use Of facilities solely for the
purposes Of Storage, display or delivery of goods or merchandise belonging to
the enterprise;
b. the maintenance of a stock of goods
or merchandise belonging to the enterprise solely for the purpose of storage or
display;
c. the maintenance of a stock of goods
or merchandise belonging to the enterprise solely for the purpose of processing
by another enterprise;
d. the maintenance of a fixed place of
business solely for the purpose of purchasing goods or merchandise, or of
collecting information, for the enterprise;
e. the maintenance of a fixed place of
business solely for the purpose of carrying on, for the enterprise, any other
activity of a preparatory or auxiliary character;
f. the maintenance of a fixed place of
business solely for any combination of activities mentioned in sub-paragraphs
(a) to (e), provided that the overall activity of the fixed place of business
resulting from this combination is of a preparatory or auxiliary character.
However,
the provisions of sub-paragraphs (a) to (f) shall not be applicable where the
enterprise maintains any other fixed place of business in the other Contracting
State for any purposes other than the purposes specified in the said
sub-paragraphs.
4. Notwithstanding the provisions of
paragraphs 1 and 2, where a person-other than an agent of an independent status
to whom paragraph 5 applies-is acting on behalf of an enterprise of the other
Contracting State, that enterprise shall be deemed to have a permanent
establishment in the first-mentioned Contracting State in respect of any
activities which that person undertakes for the enterprise, if such a person:
a.
has and habitually exercises in that
State an authority to conclude contracts in the name of the enterprise, unless
the activities of such person are limited to those mentioned in paragraph 3
which, if exercised through a fixed place of business, would not make this
fixed place of business a permanent establishment under the provisions of that
paragraph; or
b.
has no such authority, but
habitually maintains in the first-mentioned State a stock of goods or
merchandise from which he regularly delivers goods or merchandise on behalf of
the enterprise.
5. An enterprise of a Contracting State
shall not be deemed to have a permanent establishment in the other Contracting
State merely because it carries on business in that other State through a
broker, a commission agent or any other agent of an independent status,
provided that such persons are acting in the ordinary course of their business.
However, when the activities of such an agent are devoted wholly or almost
wholly on behalf of that enterprise itself or on behalf of that enterprise and
other enterprises controlling, controlled by, or subject to the same common
control, as that enterprise, he will not be considered an agent of an
independent status within the meaning of this paragraph.
6. The fact that a company which is a
resident of a Contracting State controls or is controlled by a company which is
a resident of the other Contracting State or which carries on business in that
other Contracting State (whether through a permanent establishment or
otherwise), shall not of itself constitute either company a permanent
establishment of the other.
7. An enterprise shall be deemed to have a
permanent establishment in a Contracting State and to carry on business through
that permanent establishment if it provides services or facilities in
connection with, or supplies plant and machinery on hire used for or to be used
in the prospecting for, or extraction or exploitation of mineral oils in that
State.
8. Notwithstanding the preceding provisions
of this Article, an insurance enterprise of a Contracting State shall, except
in regard to re-insurance, be deemed to have a permanent establishment in the
other Contracting State if it collects premiums in the territory of that other
State or insures risks situated therein through a person other than an agent of
an independent status to whom paragraph 5 applies.
ARTICLE 6
1. Income derived by a resident of a
Contracting State from immovable property (including income from agriculture or
forestry) situated in the other Contracting State may be taxed in that other
State.
2. The term "immovable property"
shall have the meaning which it has under the law of the Contracting State in
which the property in question is situated. Ships, boats, motor vehicles and
aircraft shall not be regarded as immovable property.
3. The provisions of paragraph 1 shall
apply to income derived from the direct use, letting or use in any other form
of immovable property.
4. The provisions of paragraphs 1 and 3
shall apply to income from immovable property of an enterprise and also to
income from immovable property used for the performance of independent personal
services.
ARTICLE 7
1. The profits of an enterprise of a
Contracting State shall be taxable only in that State unless the enterprise
carries on business in the other Contracting State through a permanent
establishment situated therein. If the enterprise carries on business as aforesaid,
the profits of the enterprise may also be taxed in the other State but only so
much of them as is attributable to:
a.
that permanent establishment;
b.
sales in that other State of goods
or merchandise of the same or similar kind as those sold through that permanent
establishment; or
c.
other business activities carried on
in that other State of the same or similar kind as those effected through that
permanent establishment.
2. Subject to the provisions of paragraph
3, where an enterprise of a Contracting State carries on business in the other
Contracting State through a permanent establishment situated therein, there
shall in each Contracting State be attributed to that permanent establishment
the profits which it might make if it were a separate independent enterprise
engaged in the same or similar activities under the same or similar conditions
and acting wholly independently with the enterprise of which it is a permanent
establishment.
3. In determining the profits of a
permanent establishment, there shall be allowed as deduction expenses which are
incurred for the purposes of the permanent establishment, including executive
and general administrative expenses so incurred, whether in the State in which
the permanent establishment is situated or elsewhere, in accordance with the
provisions of and subject to the limitations of the taxation laws of that
State.
4. No profits shall be attributed to a
permanent establishment by reason of the mere purchase of goods or merchandise
by that permanent establishment for the enterprise.
5. For the purpose of the preceding
paragraphs, the profits to be attributed to the permanent establishment shall
be determined by the same method year by year unless there are good and
sufficient reasons to the contrary.
6. Where the profits include items of
income which are dealt with separately in other Articles of this Agreement,
then the provisions of those Articles shall not be affected by the provisions
of this Article.
ARTICLE 8
1. Profits of an enterprise of a
Contracting State from the operation of ships or aircraft in international
traffic, as the case may be, shall be taxable only in that State.
2. The provisions of paragraph 1 shall also
apply to profits from the participation in a pool, a joint business or an international
operating agency.
3. For the purposes of this article,
interest on funds connected with the operation of ships or aircraft in
international traffic shall be regarded as profits derived from the operation
of such ships or aircraft, and the provisions of Article 11 shall not apply in
relation to such interest.
4. For the purposes of this Article,
profits from the operation of ships or aircraft in international traffic shall
mean profits derived by an enterprise from the transportation by sea or air
respectively, of passengers, mail, livestock, goods or merchandise carried on
by the owners or lessees or charterers of ships or aircraft. This will also
include:
a. the sale of tickets for such
transportation on behalf of other enterprises;
b. the use, maintenance, or rental of
containers (including trailers, barges, and related equipment for the
transportation of containers) used in connection with the operation of ships or
aircraft in international traffic;
c. the rental of ships or aircraft
incidental to the operation of ships or aircraft in international traffic; and
d. other activity directly connected
with operation of ships or aircraft in international traffic.
ARTICLE 9
Where:
a.
an enterprise of a Contracting State
participates directly or indirectly in the management, control or capital of an
enterprise of the other Contracting State, or
b.
the same persons participate
directly or indirectly in the management, control or capital of an enterprise
of a Contracting State and an enterprise of the other Contracting State,
and
in either case conditions are made or imposed between the two enterprises in
their commercial or financial relations which differ from those which would be
made between independent enterprises, then any profits which would have accrued
to one of the enterprises, but, by reason of those conditions, have not so
accrued, may be included in the profits of that enterprise and taxed
accordingly.
ARTICLE 10
1. Dividends paid by a company which is a
resident of a Contracting State to a resident of the other Contracting State
may be taxed in that other Contracting State.
2. However, such dividends may also be
taxed in the Contracting State of which the company paying the dividends is a
resident and according to the laws of that State, but if the recipient is the
beneficial owner of the dividends the tax so charged shall not exceed:
a.
10 per cent. of the gross amount of
the dividends if the beneficial owner is a company which holds directly at
least 25 per cent. of the shares of the company paying the dividends;
b.
15 per cent. of the gross amount of
the dividends in all other cases.
This
paragraph shall not affect the taxation of the company in respect of the
profits out of which the dividends are paid.
3. The term "dividends" as used
in this article means income from shares or other rights, not being
debt-claims, participating in profits, as well as income from other rights
which is subjected to the same taxation treatment as income from shares under
the laws of the Contracting State of which the company making the distribution
is a resident.
4. The provisions of paragraphs 1 and 2
shall not apply if the beneficial owner of the dividends, being a resident of a
Contracting State, carries on business in the other Contracting State of which
the company paying the dividends is a resident, through a permanent
establishment situated therein, or performs in that other State independent
personal services from a fixed base situated therein, and the holding, in
respect of which, the dividends are paid, is effectively connected with such
permanent establishment or fixed base. In such case, the provisions of Article
7 or 14, as the case may be, shall apply.
5. Where a company which is a resident of a
Contracting State derives profits or income from the other Contracting State,
that other State may not impose any tax on the dividends paid by the company,
except in so far as such dividends are paid to a resident of that other State
or in so far as the holding in respect of which the dividends are paid is
effectively connected with a permanent establishment or a fixed base situated
in that other State, nor subject the company's undistributed profits to a tax
on the company's undistributed profits, even if the dividends paid or the
undistributed profits consist wholly or partly of profits or income arising in
that other State.
ARTICLE 11
1. Interest arising in a Contracting
State and paid to a resident of the other Contracting State may be taxed in
that other State.
2. However, such interest may also be taxed
in the Contracting State in which it arises and according to the laws of that
State, but if the recipient is the beneficial owner of the interest the tax so
charged shall not exceed 10 per cent. of the gross amount of the interest.
3. Notwithstanding the provisions of
paragraph 2,-
a.
interest arising in a Contracting
State shall be exempt from tax in that State provided it is derived and
beneficially owned by:
i.
the Government, a political
sub-division or a local authority of the other Contracting State; or
ii.
the Central Bank of the other
Contracting State or any other bank or Governmental financial institutions that
may be mutually agreed upon between the two Contracting States.
b.
interest arising in a Contracting
State shall be exempt from tax in that Contracting State to the extent approved
by the Government of that State if it is derived and beneficially owned by any
person, other than a person referred to in sub-paragraph (a), who is a resident
of the other Contracting State, provided that the transaction giving rise to
the debt-claim has been approved in this regard by the Government of the
first-mentioned Contracting State.
4. The term "interest" as used in this
Article means 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, and in particular, income from Government securities and income from
bonds or debentures, including premiums and prizes attaching to such
securities, bonds or debentures. Penalty charges for late payment shall not be
regarded as interest for the purpose of this Article.
5. The provisions of paragraphs 1 and 2 shall not
apply if the beneficial owner of the interest, being a resident of a
Contracting State, carries on business in the other Contracting State in which
interest arises, through a permanent establishment situated therein, or
performs in that other State independent personal services from a fixed base
situated therein, and the debt-claim in respect of which the interest is paid is
effectively connected with such permanent establishment or fixed base. In such
a case, the provisions of Article 7 or 14, as the case may be, shall apply.
6. Interest shall be deemed to arise in a
Contracting State when the payer is that State itself, its political
sub-division or a local authority or a resident of that State. Where, however,
the person paying the interest whether he is a resident of a Contracting State
or not, has in a Contracting State a permanent establishment or a fixed base in
connection with which the indebtedness on which the interest is paid was
incurred, and such interest is borne by such permanent establishment or fixed
base, then such interest shall be deemed to arise in the Contracting State in
which the permanent establishment or fixed base is situated.
7. Where by reason of a special relationship
between the payer and the beneficial owner or between both of them and some
other person, the amount of the interest having regard to the debt-claim for
which it is paid, exceeds the amount which would have been agreed upon by the
payer and the beneficial owner in the absence of such relationship, the
provisions of this Article shall apply only to the last-mentioned amount. In
such a case, the excess part of the payments shall remain taxable according to
the laws of each Contracting State, due regard being had to the other
provisions of this Agreement.
ARTICLE 12
1. Royalties or fees for technical services
arising in a Contracting State and paid to a resident of the other Contracting
State may be taxed in that other State.
2. However, such royalties or fees for
technical services may also be taxed in the Contracting State in which they
arise and according to the laws of that State, but if the recipient is the
beneficial owner of the royalties or fees for technical services, the tax so
charged shall not exceed 15 per cent. of the gross amount of the royalties or
fees for technical services.
3. The term "royalties" as used
in this Article means payment of any kind received as a consideration for the
use of, or the right to use, any copyright of literary, artistic or scientific
work, including cinematographic films or films or tapes for radio or television
broadcasting, any patent, trade mark, design or model, plan, secret formula or
process, or for the use of, or the right to use, industrial, commercial or
scientific equipment, or for information concerning industrial, commercial or
scientific experience.
4. The term "fees for technical
services" as used in this Article means payment of any kind in
consideration for the rendering of any managerial, technical or consultancy
services including the provision of services by technical or other personnel
but does not include payments for services mentioned in Articles 14 and 15 of
this Agreement.
5. The provisions of paragraphs 1, and 2
shall not apply if the beneficial owner of the royalties or fees for technical
services being a resident of a Contracting State, carries on business in the
other Contracting State in which the royalties or fees for technical services
arise, through a permanent establishment situated therein, or performs in that
other State independent personal services from a fixed base situated therein,
and the right, property or contract in respect of which the royalties or fees
for technical services are paid is effectively connected with such permanent
establishment or fixed base. In such a case, the provisions of Article 7 or
Article 14, as the case may be, shall apply.
6. Royalties or fees for technical services
shall be deemed to arise in a Contracting State when the payer is that State
itself, a political sub-division, a local authority or a resident of that
State. Where, however, the person paying the royalties or fees for technical
services, whether he is a resident of a Contracting State or not, has in a Contracting
State a permanent establishment or a fixed base in connection with which the
liability to pay the royalties or fees for technical services was incurred, and
such royalties or fees for technical services are. borne by such permanent
establishment or fixed base, then such royalties or fees for technical services
shall be deemed to arise in the State in which the permanent establishment or
fixed base is situated.
7. Where by reason of a special
relationship between the payer and the beneficial owner or between both of them
and some other person, the amount of royalties or fees for technical services,
having regard to the use, right or information for which they are paid, exceeds
the amount which would have been agreed upon in the absence of such relationship,
the provisions of this Article shall apply only to the last-mentioned amount.
In such a case, the excess part of the payments shall remain taxable according
to the laws of each Contracting State, due regard being had to the other
provisions of this Agreement.
ARTICLE 13
1. Gains derived by a resident of a
Contracting State from the alienation of immovable property referred to in
Article 6 and situated in the other Contracting State may also be taxed in that
other Contracting State.
2. Gains from the alienation of property
other than immovable property forming part of the business property of a
permanent establishment which an enterprise of a Contracting State has in the
other Contracting State or of property other than immovable property pertaining
to a fixed base available to a resident of a Contracting State in the other
Contracting State for the purpose of performing independent personal services,
including such gains from the alienation of such a permanent establishment
(alone or with the whole enterprise) or of such fixed base, may be taxed in
that other State.
3. Gains from the alienation of ships or
aircraft operated in international traffic or property other than immovable
property pertaining to the operation of such ships or aircraft, shall be
taxable only in the Contracting State of which the alienator is a resident.
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.
5. Gains from the alienation of shares
other than those mentioned in paragraph 4 in a company which is a resident of a
Contracting State may be taxed in that State.
6. Gains from the alienation of any
property other than that referred to in paragraphs 1, 2, 3, 4 and 5 shall be
taxable only in the Contracting State of which the alienator is a resident.
ARTICLE 14
1. Income derived by a resident of a
Contracting State from the performance of professional services or other independent
activities of a similar character shall be taxable only in that State except in
the following circumstances when such income may also be taxed in the other
Contracting State:
a.
if he has a fixed base regularly
available to him in the other Contracting State for the purpose of performing
his activities, in that case, only so much of the income as is attributable to
that fixed base may be taxed in that other State; or
b.
if his stay in the other Contracting
State is for a period or periods amounting to or exceeding in the aggregate 183
days in a period of twelve months; in that case, only so much of the income as
is derived from his activities performed in that other State may be taxed in
that other State
2. The term "professional
services" includes especially independent scientific, literary, artistic,
educational or teaching activities as well as independent activities of
physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15
1. Subject to the provisions of Articles
17, 18, 19, 20 and 21 salaries, wages and other similar remuneration derived by
a resident of a Contracting State in respect of an employment shall be taxable
only in that State unless the employment is exercised in the other Contracting
State. If the employment is so exercised, such remuneration as is derived
therefrom may be taxed in that other State.
2. Notwithstanding the provisions of
paragraph 1, remuneration derived by a resident of a Contracting State in respect
of an employment exercised in the other Contracting State shall be taxable only
in the first mentioned State if:
a.
the recipient is present in the
other Contracting State for a period or periods not exceeding in the aggregate
183 days in any period of twelve months; and
b.
the remuneration is paid by, or on
behalf of, an employer who is not a resident of the other State; and
c.
the remuneration is not borne by a
permanent establishment or a fixed base which the employer has in the other
contracting State.
3. Notwithstanding the preceding provisions
of this Article, the remuneration derived in respect of an employment exercised
aboard a ship or aircraft operated in international traffic by the enterprise
of a Contracting State may be taxed in that State.
ARTICLE 16
Directors'
fees and other similar payments derived by a resident of a Contracting State in
his capacity as a member of the board of directors of a company which is a
resident of the other Contracting State may be taxed in that other State.
ARTICLE 17
1. Notwithstanding the provisions of
Articles 14 and 15, income derived by a resident of a Contracting State as an
entertainer, such as a theatre, motion picture, radio or television artiste, or
a musician, or as a sportsperson from his personal activities as such exercised
in the other Contracting State may be taxed in that other State.
2. Where income in respect of personal
activities exercised by an entertainer or a sportsperson in his capacity as
such accrues not to the entertainer or sportsperson himself but to another
person, such income may, notwithstanding the provisions of Articles 7, 14 and
15 be taxed in the Contracting State in which the activities of the entertainer
or sportsperson are exercised.
3. The provisions of paragraphs 1 and 2,
shall not apply to income from activities performed in a Contracting State by
entertainers or sportspersons if the visit to that State is supported wholly by
public funds of one or both of the Contracting States of political sub-divisions
or local authorities thereof or the activity is exercised within the framework
of cultural or sports co-operation agreement between the Contracting States. In
such a case, the income is taxable only in the Contracting State of which the
entertainer or sportsperson is a resident.
ARTICLE 18
1. (a) Remuneration,
other than pension, paid by a Contracting State or a political sub-division or
a local authority thereof to an individual in respect of services rendered to
that State or sub-division or authority shall be taxable only in that State.
b. However, such remuneration shall be taxable
only in the other Contracting State if the services are rendered in that other
State and the individual is a resident of that State who:
i.
is a national of that State; or
ii.
did not become a resident of that
State solely for the purpose of rendering the services.
2. (a) Any
pension paid by, or out of funds created by, a Contracting State or a political
sub-division or a local authority thereof, to an individual in respect of
services rendered to that State or sub-division or local authority thereof
shall be taxed only in that State;
b. However,
such pension shall be taxable only in the other Contracting State if the
individual is a resident of, and a national of, that State.
3. The provisions of Articles 15, 16 and 19
shall apply to remuneration and pensions in respect of services rendered in
connection with a business carried on by a Contracting State or a political
sub-division or a local authority thereof.
ARTICLE 19
1. Any pension, other than a pension
referred to in Article 18, or any annuity derived by a resident of a
Contracting State from sources within the other Contracting State shall be
taxable only in the first-mentioned Contracting State.
2.
The term "pension" means
a periodic payment made in consideration of past services or by way of
compensation for injuries received in the course of performance of services.
3.
The term "annuity" means
a stated sum payable periodically at stated times during life or during a
specified or ascertainable period of time, under an obligation to make payments
in return for adequate and full consideration in money or money's worth.
ARTICLE 20
1.
A student or business apprentice
who is or was a resident of one of the Contracting States immediately before
visiting the other Contracting State and who is present in that other State
solely for the purpose of his education or training, shall be exempt from tax
in that other State on:
a. payments made to him by persons
residing outside that other State for the purposes of his maintenance,
education or training; and
b. remuneration from employment in that
other State for an amount not exceeding the amount which is exempt from tax
under the laws of the other Contracting State for any fiscal year; provided
that such employment is directly related to his studies or is undertaken for
the maintenance.
2.
The benefits of this article shall
extend only for such period of time as may be reasonable or customarily
required to complete the education or training undertaken, but in no event
shall any individual have the benefits of this article, for more than five
consecutive years from the date of his first arrival in that other Contracting
State.
ARTICLE 21
1.
A professor or teacher who is or
was a resident of one of the Contracting States immediately before visiting the
other Contracting State for the purpose of teaching or engaging in research, or
both, at a university, college, or other similar institution in that
Contracting State shall be exempt from tax in that other State on any
remuneration for such teaching or research for a period not exceeding two years
from the date of his arrival in that other State.
2.
This article shall not apply to
income from research if such research is undertaken primarily for the private
benefit of a specific person or persons.
3.
For the purposes of this article
and article 20,. an individual shall be deemed to be a resident of the
Contracting State if he is resident in that Contracting State in the fiscal
year' In which he visits the other Contracting State or in the immediately
fiscal year.
ARTICLE 22
1.
Items of income of a resident of a
Contracting State, wherever arising, not dealt with in the foregoing Articles
of this Agreement shall be taxable only in that State.
2.
The provisions of paragraph 1
shall not apply to income other than income from immovable property as defined
in paragraph 2 of Article 6, if the recipient of such income, being a resident
of a Contracting State, carries on business in the other Contracting State
through a permanent establishment situated therein, or performs in that other
State independent personal services from a fixed base situated therein, and the
right of property in respect of which the income is paid is effectively
connected with such permanent establishment or fixed base. In such a case, the
provisions of Article 7 or Article 14, as the case may be, shall apply.
3.
Notwithstanding the provisions of
paragraphs 1 and 2, items of income of a resident of a Contracting State not
dealt with in the foregoing Articles of this Agreement, and arising in the
other Contracting State may be taxed in that other State.
ARTICLE 23
1.
Property (capital) represented by
immovable property referred to in Article 6, owned by a resident of a
Contracting State and situated in the other Contracting State, may be taxed in
that other State.
2.
Property (capital) represented by
property other than immovable property forming part of the business property of
a permanent establishment which an enterprise of a Contracting State has in the
other Contracting State or by property other than immovable property pertaining
to a fixed base available to a resident of a Contracting State in the other
Contracting State for the purpose of performing independent personal services,
may be taxed in that other State.
3.
Property (capital) represented by
ships and aircraft operated in, international ' traffic or by boats engaged in
inland waterways transport and by property other than immovable property
pertaining to the operation of such ships, boats and aircraft shall be taxable
only in the Contracting State of which the owner of such ships, boats, aircraft
or property is a resident.
4.
All other elements of property
(capital) of a resident of a Contracting State shall be taxed only in that
State.
ARTICLE 24
1.
The laws in force in either of the
Contracting States shall continue to govern the taxation of income and property
(capital) on the respective Contracting State except where express provision to
the contrary is made in this Agreement.
2. In the case
of India, double taxation shall be eliminated as follows:
Where
a resident of India derives income or owns capital which, in accordance with
the provisions of this Agreement, may be taxed in the Republic of Belarus,
India shall allow as a deduction from the tax on the income of that resident an
amount equal to the income-tax paid in the Republic of Belarus whether directly
or by deduction; and as a deduction from the tax on the capital of that
resident an amount equal to the property (capital) tax paid in the Republic of
Belarus. Such deduction in either case shall not, however, exceed that part of
the income-tax or capital tax as computed before the deduction is given which
is attributable, as the case may be, to the income or the capital which may be
taxed in the Republic of Belarus.
3. In the case
of the Republic of Belarus, double taxation shall be eliminated as follows:
Where
a resident of the Republic of Belarus derives income which, in accordance with
the provisions of this Agreement, may be taxed in India, the Republic of
Belarus shall allow as a deduction from the tax on the income of that resident,
an amount equal to the income-tax paid in India; and as a deduction from tax on
the property (capital) of that resident, an amount equal to the capital tax
paid in India. Such deduction shall not, however, exceed that part of the
income-tax or property (capital) tax, as computed before the deduction is
given, which is attributable, as the case may be, to the income or the property
(capital) which may be taxed in India.
4.
The tax payable in the Contracting
State mentioned in paragraphs 2 and 3 of this Article shall be deemed to
include the tax which would have been payable but for the tax incentives
granted under the laws of the Contracting State and which are designed to promote
economic development.
5.
Income which in accordance with
the provisions of this Agreement, is not to one subjected to tax in a
Contracting State, may be taken into account for calculating the rate of tax to
be imposed in that Contracting State.
ARTICLE 25
1.
Nationals of a Contracting State
shall not be subjected in the other Contracting State, to other or more
burdensome taxation or any requirement connected therewith, than the taxation
and connected requirements to which nationals of that other State in the same
circumstances are or may be subjected.
2.
The taxation on a permanent
establishment which an enterprise of a Contracting State has in the other
Contracting State shall not be less favourably levied in that other State than
the taxation levied on enterprises of that other State carrying on the same
activities. This provision shall not be construed as preventing a Contracting
State from charging the profits of a permanent establishment which an
enterprise of the other Contracting State, has in the first-mentioned State at
a rate of tax which is higher than that imposed on the profits of a similar
enterprise of the first-mentioned Contracting State, nor as being in conflict
with the provisions of paragraph 3 of Article 7 of this Agreement.
3.
Nothing contained in this Article
shall be construed as obliging a Contracting State to grant to persons not
resident in that State any personal allowances, reliefs, reductions and
deductions for taxation purposes which are by law available only to persons who
are so resident.
4.
Enterprises of a Contracting State
the capital of which is wholly or partly owned or controlled, directly or
indirectly, by one or more residents of the other Contracting State, shall not
be subjected in the first mentioned State to any taxation or any requirement
connected therewith which is other or more burdensome than the taxation and
connected requirements to which other similar enterprises of the
first-mentioned State may be subjected in the same circumstances and under the
same conditions.
5.
In this Article, the term
"taxation" means taxes which are the subject of this Agreement.
6.
Except where the provisions of
Article 9, paragraph 7 of Article 11 of paragraph 7 of Article 12, apply,
interest, royalties and other disbursements paid by an enterprise of a
Contracting State to a resident of the other contracting State shall, for the
purpose of determining the taxation profits of such enterprises, be deductible
under the same conditions as if they had been paid to a resident of the first
mentioned State. Similarly, any debts of an enterprise of a Contracting State
to a resident of the other Contracting State shall, for the purpose of
determining the taxation capital of such enterprise, be deductible under the
same conditions as if they had been contracted to a resident of the
first-mentioned State.
ARTICLE 26
1.
Where a resident of a Contracting
State considers that the actions of one or both of the Contracting States
result or will result for him in taxation not in accordance with this
Agreement, he may, irrespective of the remedies provided by the domestic laws of
those Contracting States, present his case to the competent authority of the
Contracting State of which he is a resident, or of his case comes under
paragraph 1 of Article 25, to that of the Contracting State of which he is a
national. The case must be presented within three years from the date of the
first notification of the action resulting in taxation not in accordance with
the provisions of this Agreement.
2.
The competent authority shall
endeavour, if the objection appears to it to be justified and if it is not
itself able to arrive at a satisfactory solution, to resolve the case by mutual
agreement with the competent authority of the other Contracting State for the
avoidance of taxation which is not in accordance with the Agreement. Any
agreement reached shall be implemented notwithstanding any time limits in the
domestic law of the Contracting States.
3.
The competent authorities of the
Contracting States shall endeavour to resolve by mutual agreement any
difficulties or doubts arising as to the interpretation or application of the
Agreement. They may also consult together for the elimination of double
taxation in cases not provided for in the Agreement.
4.
The competent authorities of the
Contracting States may communicate with each other directly for the purpose of
reaching an agreement in the sense of the preceding paragraphs. When it seems
advisable in order to reach an agreement to have an oral exchange of opinions,
such exchange may take place through a Commission consisting of representatives
of the competent authorities of the Contracting States.
ARTICLE
27
Exchange
of Information
1.
The competent authorities of the
Contracting States shall exchange such information (including domestic) as is
necessary for carrying out the provisions of this Agreement or of the domestic
laws of the Contracting States concerning taxes covered by the Agreement, in so
far as the taxation thereunder is not contrary to the Agreement. The exchange
of information is not restricted by Article 1. Any information received by a
Contracting State shall be treated as secret in the same manner as information
obtained under the domestic laws of that State and shall be disclosed only to
persons or authorities (including courts and administrative bodies) involved in
the assessment, or collection of, the enforcement or prosecution in respect of,
or the determination of appeals in relation to, the taxes covered by the
Agreement. Such persons or authorities shall use the information only for such
purposes. They may disclose the information in public court proceedings or in
judicial decisions. The competent authorities shall, through consultation,
develop appropriate conditions, methods and techniques, the list of information
and documents concerning the matters in respect of which such exchange of
information shall be made, including, where appropriate, exchange of information
regarding tax avoidance. The exchange of information or documents shall be on
request of the competent authorities of the Contracting States.
In no case shall the provisions of paragraph 1 be construed
as to impose on a Contracting State the obligation:
a. to carry out administrative measures
at variance with the law or administrative practice of that or the other
Contracting State;
b. to supply information or domestic
which are not obtainable under the laws or in the normal course of the
administration of that or of the other Contracting State;
c.
(to
supply information or documents which would disclose any trade, business,
industrial, commercial or professional secret, or trade process, or
information, the disclosure of which would be contrary to public policy;
ARTICLE 28
1.
The Contracting States undertake
to lend assistance and support to each other, in the collection of the taxes to
which this Agreement relates, in the cases where the taxes are definitely due
according to the laws of the State making the request.
2.
In the case of a request for
enforcement of collection, tax claims of either of the Contracting States which
have been finally determined will be accepted for enforcement by the other
Contracting State to,-which the request is made and collected in that State in
accordance with the laws applicable to the enforcement and collection of its
taxes.
3.
In the case of Indian tax, the
request will be sent by the Central Board of Direct Taxes, Department of
Revenue to the State Tax Committee of the Republic of Belarus and will be
accompanied by such certificate as is required by the laws of India to
establish that the taxes have been finally determined and are due from the
taxpayer.
4.
In the case of Belarusian tax, the
request will be sent by the State Tax Committee of the Republic of Belarus to
the Central Board of Direct Taxes, Department of Revenue, in India and will be
accompanied by such certificate as is required by the laws of the Republic of
Belarus to establish that the taxes have been finally determined and are due
from the taxpayer.
5.
Where that tax claim has not
become final by reason of its being subject to appeal or any other proceeding,
a Contracting State may, in order to protect its revenues, request the other
Contracting State to take such interim measures in this behalf as are lawful
under the laws of that other Contracting State.
6.
A request for assistance in
collection of taxes due from a taxpayer shall be made only if adequate assets
of that taxpayer are not available for recovering the taxes from him in the
Contracting State making the request.
7.
The Contracting State in which tax
is recovered in pursuance of paragraphs 1, 2 and 5 of this Article shall
immediately thereafter remit the amount so recovered to the Contracting State
which made the request but it shall be entitled to reimbursement of actual
costs, if any, incurred in the course of rendering assistance to the extent
mutually agreed between the competent authorities of the Contracting States.
ARTICLE 29
Nothing in this Agreement shall affect the fiscal privileges
of diplomatic or consular officials under the general rules of international
law or under the provisions of special agreements.
ARTICLE 30
1.
The Contracting States shall
notify each other in writing, through diplomatic channels, the completion of
the procedure required by the respective laws for the entry into force of this
Agreement.
2.
This Agreement shall enter into
force thirty days after the receipt of the later of the notifications referred
to in paragraph 1 of this Article.
3. The
provisions of this Agreement shall have effect:
a. In India:
i.
in
respect of income arising in any fiscal year beginning or after the first day
of April next following the calendar year in which the Agreement enters into
force;
ii.
in
respect of capital which is held on the last day of any fiscal year beginning
on or after the first day of April next following the calendar year in which
the Agreement enters into force.
b.
In
Belarus:
i.
in
respect of taxes withheld at source on amounts of income, derived on or after
1st of January in the calendar year next following the year in which the
Agreement enters into force; and
ii.
in
respect of other taxes on income and taxes on property (capital) to such taxes
chargeable in any taxable year beginning on or after 1st January in the
calender year next following the year in which the Agreement enters into force.
ARTICLE 31
This Agreement shall remain in force indefinitely until
terminated by a Contracting State. Either Contracting State may terminate the
Agreement, through diplomatic channels, by given notice of termination at least
six months before the end calendar year beginning after the expiration of five
years from the date of entry into force of the Agreement. In such event, the
Agreement shall cease to have effect:
a. In India
i.
In
respect of income arising in any fiscal year beginning on or after the first
day of April next following the calendar year in which the notice of termination
is given;
ii.
in
respect of capital which is held at the expiry of any previous year beginning
on or after the first day of April next following the calendar year in which
the notice of termination is given.
b. In Belarus
i.
in
respect of taxes withheld at source, to amounts of income derived on or after
1st of January in the calendar year next following the year in which the notice
is given;
ii.
in
respect of other taxes on income or taxes on property (capital) to such taxes
chargeable in any taxable year beginning on or after 1st of January in the
calendar year next following the year in which the notice is given.
In witness whereof, the undersigned, being duly authorised
thereto have signed the present Agreement.
Done in duplicate at New Delhi, this 27th day of September,
1997 in Hindi, Belarusian and English languages, all the texts being equally
authentic. In case of divergence between any of the texts, the English text
shall be the operative one.
For the Government of the Republic
of India
|
For the Government of the Republic
of Belarus
|
(P. Chidambaram)
|
(Mikhail Marinich)
|
Minister of Finance
|
Minister of External Economic
Relations
|
PROTOCOL
The Government of Public of India and the Government of the
Republic of Belarus have agreed at the signing a New Delhi on 27the September,
1997 of the Agreement between the two states for the avoidance of double taxation
and the prevention of fiscal evasion with respect to taxes on income and on
property (capital) upon the following provisions which shall form an integral
part of the said Agreement.
1.
For purpose of this Agreement, the
term "political sub-division" as used in the Agreement shall be
applicable to India only.
2.
With reference to Article 4, it is
understood that when establishing the "place of effective management"
as used in paragraph 3 of Art. 4, circumstances which may, inter alia, be taken
into account are the place where a company is actually managed and controlled,
the place where the decision making at the highest level on important policies
essential for the management of company takes, place, the place that plays a
leading part in the management of a company from an economic and functional
point of view and the place where the relevant accounting books aer kept.
3.
For purposes of this Agreement, it
is understood that the term "fixed base" includes a fixed place such
as an officer or a room or any other place regularly available to him through
which the activity of a person performing independent personal services is
wholly or partly carried on.
In witness thereof, the undersigned, being duly authorised
thereto have signed this Protocol.
Done, in duplicate, at New Delhi, this 27th day of
September, 1997 in Hindi, Belarusian and English languages, all texts being
equally authentic. In case of divergence between any of the texts, the English
text shall by the operative one.
For the Government of the Republic
of India
|
For the Government of the Republic
of Belarus
|
(P. Chidambaram)
|
(Mikhail Marinich)
|
Minister of Finance
|
Minister of External Economic
Relations
|
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