Certificate Format for Claiming Relief from Double Taxation by Non Resident, Notification Issued On 17-9-2012

In exercise of the powers conferred by section 90 and 90A read with section 295 of the Income-tax Act, 1961 (43 of 1961), the Central Board of Direct Taxes hereby makes the following rules further to amend the Income-tax Rules, 1962, namely:-

1. (1). These rules may be called the Income-tax (12th Amendment) Rules, 2012.

(2). They shall come into force on the 1st day of April, 2013.

2. In the Income-tax Rules, 1962 (hereafter referred to as the principal rules), –

(a)  after rule 21AA, the following rule shall be inserted, namely.-

“Certificate for claiming relief under an agreement referred to in section 90 and 90A.

21AB (1) The certificate referred to in sub-section (4) of section 90 and sub-section (4) of section 90A to be obtained by an assessee, not being a resident in India, from the Government of the country or the specified territory shall contain the following particulars, namely:-

 (i)  Name of the assessee;

(ii)  Status (individual, company, firm etc.) of the assessee;

(iii)  Nationality (in case of individual);

(iv) Country or specified territory of incorporation or registration (in case of others);

(v)  Assessee’s tax identification number in the country or specified territory of residence or in case no such number, then, a unique number on the basis of which the person is identified by the Government of the country or the specified territory;

(vi) Residential status for the purposes of tax;

(vii)  Period for which the certificate is applicable; and

(viii)  Address of the applicant for the period for which the certificate is applicable;

(2) The certificate referred to in sub-rule (1) shall be duly verified by the Government of the country or the specified territory of which the assessee, referred to in sub-rule (1), claims to be a resident for the purposes of tax.

(3) An assessee, being a resident in India, shall, for obtaining a certificate of residence for the purposes of an agreement referred to in section 90 and section 90A, make an application in Form No. 10FA to the Assessing Officer.

(4) The Assessing Officer on receipt of an application referred to in sub-rule (3) and being satisfied in this behalf, shall issue a certificate of residence in respect of the assessee in Form No. 10FB.”;

(b)  in Appendix-II, after the Form No. 10F, the following Forms shall be inserted, namely: –

“FORM No. 10FA

[See rule 21AB (3)]

Application for Certificate of residence for the purposes of an agreement under section 90 and 90A of the Income Tax Act, 1961

To

The Assessing Officer,

_________________,

_________________,

_________________,

Sir,

I request that a certificate of residence in Form No. 10FB be granted in my case/in the case of ________________________ [for person other than individual]

  

2. The relevant details in this regard are as under: –

  

(i)

Full Name and address of the applicant

  

  

  

(ii)

Status (State whether individual, Hindu undivided family, firm, body of individuals, company etc.)

  

  

  

(iii)

Nationality (in case of individual)

  

  

  

(iv)

Country of incorporation/registration (in case of others).

  

  

  

(v)

Address of the applicant during the period for which TRC is desired.

  

  

  

(vi)

Email ID

  

  

  

(vii)

PAN/ TAN No. (if applicable)

  

  

  

(viii)

Basis on which the status of being resident in India is claimed.

  

  

  

(ix)

Period for which the residence certificate is applicable

  

  

  

(x)

Purpose of obtaining Tax Residency Certificate (must be specified)

  

  

  

(xi)

Any other detail

  

  

  

3. The following document in support are enclosed: –

  

(1)

  

  

  

  

(2)

  

  

  

  

(3)

  

  

  

VERIFICATION

I, ____________ [full name in block letters] __________ son/daughter of ________________________, in the capacity of ________________ [designation for person other than individual], verify that to the best of my knowledge and belief, the information given in this form is correct and complete and that the other particulars shown therein are truly stated.

Verified today the ____________________ day of ____________

 

Place

Signature of the Applicant ____________________
Name____________________________________

  

  

  

FORM No. 10FB

[See rule 21AB (4)]

Certificate of residence for the purposes of section 90 and 90A

  

1.

Name of the Person

  

  

  

2.

Status

  

  

  

3.

Permanent Account Number

  

  

  

4.

Address of the person during the period of Tax Residency Certificate.

  

  

Certificate

If is hereby certified that the above mentioned person is a resident of India for the purposes of Income-tax Act, 1961.

This certificate is valid for the period __________________

Issued on __________ the day of ________, ________,

  

  

Name of the Assessing Officer

  

  

Designation____________

  

  

Seal “.________________”

Reference: Section 90A of the income Tax Act, 1961

Adoption by Central Government of agreement between specified associations for double taxation relief

(1) Any specified association in India may enter into an agreement with any specified association in the specified territory outside India and the Central Government may, by notification in the Official Gazette, make such provisions as may be necessary for adopting and implementing such agreement—

 (a) for the granting of relief in respect of—

  (i) income on which have been paid both income-tax under this Act and income-tax in any specified territory outside India; or

 (ii) income-tax chargeable under this Act and under the corresponding law in force in that specified territory outside India to promote mutual economic relations, trade and investment, or

 (b) for the avoidance of double taxation of income under this Act and under the corresponding law in force in that specified territory outside India, or

 (c) for exchange of information for the prevention of evasion or avoidance of income-tax chargeable under this Act or under the corresponding law in force in that specified territory outside India, or investigation of cases of such evasion or avoidance, or

 (d) for recovery of income-tax under this Act and under the corresponding law in force in that specified territory outside India.

(2) Where a specified association in India has entered into an agreement with a specified association of any specified territory outside India under sub-section (1) and such agreement has been notified under that sub-section, for granting relief of tax, or as the case may be, avoidance of double taxation, then, in relation to the assessee to whom such agreement applies, the provisions of this Act shall apply to the extent they are more beneficial to that assessee.

The following sub-section (2A) shall be inserted after sub-section (2) of section 90A by the Finance Act, 2012, w.e.f. 1-4-2013:

(2A) Notwithstanding anything contained in sub-section (2), the provisions of Chapter X-A of the Act shall apply to the assessee, even if such provisions are not beneficial to him.

(3) Any term used but not defined in this Act or in the agreement referred to in sub-section (1) shall, unless the context otherwise requires, and is not inconsistent with the provisions of this Act or the agreement, have the same meaning as assigned to it in the notification issued by the Central Government in the Official Gazette in this behalf.

The following sub-section (4) shall be inserted after sub-section (3) of section 90A by the Finance Act, 2012, w.e.f. 1-4-2013 :

(4) An assessee, not being a resident, to whom the agreement referred to in sub-section (1)
applies, shall not be entitled to claim any relief under such agreement unless a certificate, containing such particulars as may be prescribed, of his being a resident in any specified territory outside India, is obtained by him from the Government of that specified territory.

Explanation 1.—For the removal of doubts, it is hereby declared that the charge of tax in respect of a company incorporated in the specified territory outside India at a rate higher than the rate at which a domestic company is chargeable, shall not be regarded as less favourable charge or levy of tax in respect of such company.

Explanation 2.—For the purposes of this section, the expressions—

 (a) “specified association” means any institution, association or body, whether incorporated or not, functioning under any law for the time being in force in India or the laws of the specified territory outside India and which may be notified as such by the Central Government for the purposes of this section;

 (b) “specified territory” means any area outside India which may be notified as such by the Central Government for the purposes of this section.

Explanation 3.—For the removal of doubts, it is hereby declared that where any term is used in any agreement entered into under sub-section (1)
and not defined under the said agreement or the Act, but is assigned a meaning to it in the notification issued under sub-section (3) and the notification issued thereunder being in force, then, the meaning assigned to such term shall be deemed to have effect from the date on which the said agreement came into force

                                                             
 
Reference: Section 90 of the Income Tax Act, 1961

Agreement with foreign countries or specified territories

(1) The Central Government may enter into an agreement with the Government of any country outside India or specified territory outside India,—

 (a) for the granting of relief in respect of—

  (i) income on which have been paid both income-tax under this Act and income-tax in that country or specified territory, as the case may be, or

 (ii) income-tax chargeable under this Act and under the corresponding law in force in that country or specified territory, as the case may be, to promote mutual economic relations, trade and investment, or

 (b) for the avoidance of double taxation of income under this Act and under the corresponding law in force in that country or specified territory, as the case may be, or

 (c) for exchange of information for the prevention of evasion or avoidance of income-tax chargeable under this Act or under the corresponding law in force in that country or specified territory, as the case may be, or investigation of cases of such evasion or avoidance, or

 (d) for recovery of income-tax under this Act and under the corresponding law in force in that country or specified territory, as the case may be,

and may, by notification in the Official Gazette, make such provisions as may be necessary for implementing the agreement.

(2) Where the Central Government has entered into an agreement with the Government of any country outside India or specified territory outside India, as the case may be, under sub-section (1) for granting relief of tax, or as the case may be, avoidance of double taxation, then, in relation to the assessee to whom such agreement applies, the provisions of this Act shall apply to the extent they are more beneficial to that assessee.

The following sub-section (2A) shall be inserted after sub-section (2) of section 90 by the Finance Act, 2012, w.e.f. 1-4-2013:

(2A) Notwithstanding anything contained in sub-section (2), the provisions of Chapter X-A of the Act shall apply to the assessee, even if such provisions are not beneficial to him.

(3) Any term used but not defined in this Act or in the agreement referred to in sub-section (1) shall, unless the context otherwise requires, and is not inconsistent with the provisions of this Act or the agreement, have the same meaning as assigned to it in the notification issued by the Central Government in the Official Gazette in this behalf.

The following sub-section (4) shall be inserted after sub-section (3) of section 90 by the Finance Act, 2012, w.e.f. 1-4-2013:

(4) An assessee, not being a resident, to whom an agreement referred to in sub-section (1)
applies, shall not be entitled to claim any relief under such agreement unless a certificate, containing such particulars as may be prescribed, of his being a resident in any country outside India or specified territory outside India, as the case may be, is obtained by him from the Government of that country or specified territory.

Explanation 1.—For the removal of doubts, it is hereby declared that the charge of tax in respect of a foreign company at a rate higher than the rate at which a domestic company is chargeable, shall not be regarded as less favourable charge or levy of tax in respect of such foreign company.

Explanation 2.—For the purposes of this section, “specified territory” means any area outside India which may be notified as such by the Central Government.

Explanation 3.—For the removal of doubts, it is hereby declared that where any term is used in any agreement entered into under sub-section (1)
and not defined under the said agreement or the Act, but is assigned a meaning to it in the notification issued under sub-section (3) and the notification issued thereunder being in force, then, the meaning assigned to such term shall be deemed to have effect from the date on which the said agreement came into force.

 

                                                                                                                                                                                                                                                   
 

 

Leave a Reply

Your email address will not be published. Required fields are marked *