notification no. 63/2015 f.no.500/02/2003 ftd 1 /s.o. 2192 e section 90 of the income tax act 1961 double taxation agreement agreement for exchange of information with regard to taxes with foreign countries san marino

MINISTRY OF FINANCE (Department of Revenue) NOTIFICATION New Delhi, the 12th August, 2015 . (INCOME-TAX) S.O. 2 I 92(E).- Whereas, an agreement (hereinafier referred to as the said agreement) between the Government of the Republic of India and the Government of the Republic of San Marino, for the exchange of information with respect to taxes was signed at Rome, on the 19th day of December, 2013; 2. And whereas, the date of entry into force of the said agreement is the 29th day of August, 2014, being the date of the later of the notifications of completion of the procedures as required by the respective laws for entry into force of the said agreement in accordance with paragraph J of Article II of the said agreement; 3. And whereas, paragraph 2 of Article II of the said agreement provides that the agreement shall enter into force on the date of later of the notifications and shall thereupon have cFfect Forthwith; 4. Now, therefore, in exercise of the powers conferred by Section 90 of the Income tax Act, 1961 (43 of 1961), the Central Government hereby directs that all provisions of the said agreement between the Government of the Rcpublic of India and the Government of the Republic of San Marino on the exchange of information with respect to taxes, as set out in the said agreement annexed hereto, shall have effect in the Union of India from the 29th day of August, 2014. [Notification No. 63/15/F.No.500/02/2003-FTD-I] AKHILESH RANJAN, JI. Secy. AGREEMENT BETWEEN TIlE GOVERNMENT OF TIlE REPUBLIC OF INDIA AND THE GOVERNMENT OF TIlE REPUBLIC OF SAN MARINO FOR TIlE EXCHANGE OF INFORMATION WITH RESPECT TO TAXES The Government of the Republic of India and the Government of the Republic of San Marino, desiring to facilitate the exchange of information with respectto taxes have agreed as follows: Article I Object and Scope of the Agreement 1. 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, the recovery and enforcement of tax claims or the investigation or prosecution of tax matters. 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 ['WI II -~ 3(ii)] 9 laws or administrative practice of the requested Pany remain applicable to the extent that they do not u~duly prevent or delay effective exchange of infonnation. A,·tiele 2 Jurisdiction Information shall be exchanged in accordance with this Agreement without regard to whether the person to whom Ih(' information relates is, or whether the information is held by. a resident of a Contracting Party. However, the Requested Pany is not obliged to provide information which is neither held by its authorities nor ;s in the possession or control of persons who arc within its territorial jurisdiction. Artiele 3 Taxes Covered 1. The taxes which arc the subject of this Agreement are: a) in India. taxes of every kind and description imposed by the Centra l Government or the Governments of political subdivisions or local authorities, irrespective orthe manner in which they are levied; b) San Marino, taxes of every kind and description. irrespective of the manner they are l ev i ed ~ 2. This Agreement sha ll also apply to any identical or substantially similar taxes imposed after the date of signature of rhis Agreement in add ition 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 taxation and related information gathering measures and assistance in collection measures whic h may affect the obUgations of that Party pursuant to th is Agreement. Article 4 Definitions I. 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 or the Sea; b) the term "San Marino" means the territory of Repub lic of San Marino; e) the term "Contracting Party" means India or the San Marino, as the context requires; d) the term "competent authority" means i) in the case of India, the Finance Minister, Government of India I or its authorized representative; ii) in the case of San Marino, the Central Liaison Office (CLO), as the Authority designed by domestic Law for the purpose of Exchange of information; e) the term "person" includes an individual, a company, a body of persons and any other entity which is treated as a taxable un it under the taxation laws in force in the respective Contracting Partie s~ I) the term "company" means any body corporate or any entity that is 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" ifthc 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 and va lue of the company; i) the term "recognised stock exchange" shell bear the meaning agreed upon by the competent authorities of the contracting parties; j) the tcnn "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 pub lic. 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 restTicted to a limited group of investors; I) the term "tax" means any tax to which th is Agreement applies; m) the term "requesting Party" means the Contracting Party- (i) submitting a request for information to, or (ii) having received information from the requested Party; n) the lcrm "requested Party" means the Contracting Party- ~--------.---... ---- --- --'-~-.- 10 THE GAZETTE OF INDIA: EXTRAORDINARY [PART II- SEC. 3(ii)-' (i) which is requested to provide information, or (ii) which has provided info rm at i on~ 0) the term " information gathering measures" means laws and administrative or judicial procedures that enable a Contracting Party to obtain and provide the requested infonnation; p) the term "information" means any fact, statement, documentar 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 otherwi se 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 Up on Request I. The competent authority ofthe\equested Party shal l provide upon request information for the purposes referred to in Article I. 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 ifsuch 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 Patty 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, arid any person acting in an agency, acting in an agency or fiduciary capacity; including nominees and trustees, b) information regarding the legal and beneficial ownership ofcompan)es, partnerships, collective investment funds or schemes, trusts, foundations, "Anstalten" 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; and equivalent information in case of entities that are neither trusts nor foundations. 5. This Agreement docs 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. 6. The competent authority oflhe requesting Party shall provide the following information 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 to the request: (a) the identity of the person under examination or investigation; (b) the period for which information is requested; (c) the nature of the information requested and the form in which the requesting Party wou ld prefer to receive it ; (d) the tax purpose for wh ich the information is sought; (e) grounds for believing that the information requested is present in the requested Party or is in the possession or control ofa person within the jurisdiction of the requested Party; (I) to the extent known, the name and address of any person believed to be in possession or control of the requested information; (g) 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; (h) 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. 7. The competent authority of the requested Party shall forward the requested information as promptly as possible to the • ... , • {' 11. , .' l'lJll 11 - @lS" 3(ii)] II a) Confirm receipt of a request in writing to the competent authority of the requesting Party and shali 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 furn ish 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. At the request of the competent authority qfthc requesting Party, the requested Party may, allow representatives of the competent authority of the requesting Party to enter the territory orthe requested Party, to the extent perm itted under its domesdc laws, to interview individuals and examine records with the prior written consent of the individuals or other persons concerned. The competent authority of the requesting Party shall notify the competent authority of the requested Pat1y of the time and place orthe intended meeting with the individuals concerned. 2. At the request of the competent authority orthe requesting Party, the requested Party may allow representatives of the competent authority of the requesting Party to be present at the appropriate part of a tax examination in the requested Pat1y, in which case the competent authority of the requested Party conducting the examination shall, as soon as possible, notify the competent authority of the requesting 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 exam ination. All decisions with respect to the conduct of the tax examination shall be made by the Party conducting the examination. Article 7 Possibility of Declining a Request for information I. The competent authority of the requested Pat1y may decline to assist: (a) where the request is not made in conformity with this Agreement; 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 disclosurc ofthc information would be contrary to public policy (ordre public) of the requested Party. 2. This Agreement shall not impose on a Contracting Pat1y the obligation: (a) to supply infor!llation which would disclose any trade, business, industrial, commercial or professional secret or trade process. Notwithstandin£ foregoing information described in paragraph 4 of Article 5 shall not be treated as such a secret or trade process merely because it meets the criteria in that paragraph; or . (b) to obtain or provide information, which would reveal confidential communications between a client and an attorney, solicitor or other admitted legal representative wherc such communications are: (i) produced for the purposes of secking or providing legal advice or (ii) produced for the purposes of use in existing or contemplated legal proceedings; or "'""":. (c) to carry out administrative measures at variance with its laws and administrative practices, provided nothing in this subparagraph shall affect the obligations ora Contracting Party under paragraph 4 of Article 5. 3. A request for information shall not be j'cfused on the ground that the tax claim giving rise to the request is disputed. 4. The requested Pal1y shall not be required to obtain and provide information which the requesting Party would be unable to obtain in similar circumstances under its own laws for the purpose of the administration or enforcement of its own tax laws or in response to a valid request from the requested Party under this Agreement. 5. The requested Party shall not dccline to provide information solely because the request does not include ali the information required under Article 5 if the information can otherwise be provided accord ing to the law of the requested Party. 6. The requested Pat1y may decline a request for information ·if the information is requested by the requesting Party to administer or enforce a provision of the tax law of the requesting Party, or any requirement. connected therewith, which discriminates against a national or citizen of the requested Party as compared with a national or citizen of the requesting Party in the same circumstances. Article 8 Confidentiality Any information received by a Contracting Party under this Agreement shall be treated as confidential and may be disclosed only to persons or authorities (including courts, administrative bodies) in the jurisdiction of the Contracting Party concerned with the assessment or collection of. the enfnrr:(,Olpnt f""lr .... rM"""·; ..... ~ :- ..••.. ...... • . ------------------------'------ --- -- --:>--~ 12 THE GAZETTE OF INDIA: EXTRAORDINARY [PART II- SEC 3(ii)] ~ or appeals in rclation to, the taxes covered by this Agreement. Such persons or authorities shall use such information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions. The information may not be disclosed to any other person or entity or authority or any other jurisdiction without the express written consent of the competent authority orthe requested Party. Article 9 Implementation Legislation The Contracting Parties shall enact any legislation necessary to comply with, and give effect to, the terms of the Agreement. Article 10 Mutual Agrccm.ent Procedure I. Where difficulties or doubts arise between the Contracting Parties regarding the implementation or interpretation of the Agreement, the competent authorities shall endeavour to resolve the matter by mutual agreement. In add ition, the competent authorities of the Contracting Parties may mutually agree on the procedures to be used under Articles 5 and 6 of th is Agreement. 2. The competent authorities of the Contracting Parties may communicate with each other directly for purposes of rcaching agreement under this Article. A rtiele II Entry into Force I. The Contracting Pal1ies sha ll notify· each other in writing, through diplomatic channels, of the completion of the procedures required by the respective laws for the entry into force of this Agreement. 2. This Agreement shall enter into foree on the date of the later of the notifications referred to in paragraph I of this Aliicle and shall thereupon have effect forthwith, A rtiele 12 Termination I. This Agreement shall remain in force until terminated by either Contracting Pal1y. 2. Either Contracting Party may, after the expiry of five years from the date of its entry into force, 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 term ination shall be dealt with, in accordance with the provisions of the Agreement. In witness whereof. the undersigned, being duly authorised thereto, have signed this Agreement. DONE in duplicate at Rome (italy) on the 19'" day of December, 20 13, each in the Hindi, Italian and Engl ish languages, all texts being equally authentic. In case of divergence of interpretation, the English text shall prevail. ror the Government of For the Government of the Republic of India: (Basant K, Gupta) Ambassador of India to Italy with concurrent accreditation to the republic of San Marino the Republic of San Marino: (Daniela Rotondaro) Ambassador of San Marino to Italy Printed by the Manager. Government of India Press, Ring Road. Mayapuri, New Delhi-I 10064 and Published by the Controller or Publications. Delhi-I 10054.