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Presentation made in Direct Taxes Regional Training Institute at Mumbai in refresher course on Emerging Sectors for AddCITs and ACITs across India.
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International Tax Issues in
Entertainment Industry
including Film production
Romesh S A Sankhe
September 12, 2012
Seminar on ‘Emerging sectors’
Direct Taxes Regional Training
Institute, Mumbai
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Contents
Sector Outlook
International Tax Issues
Direct Taxes Code
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Sector Outlook
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Largest film producing market in the world with over 1,000 films released every year
and more than 3 billion tickets sold annually
The number of TV channels grown from 5 (1991) to 550 plus (2011), more than 50%
were added in the last five years
With successful hosting of ICC Cricket World Cup and annual Indian Premier
League (IPL) along with recent Formula One Grand Pix (F1 Race) the sports
entertainment industry in India is on rise
Sector Outlook | Industry Growth
0
500
1000
1500
2009 2010 2011 2012 2013 2014 2015
587 652 738 834 957
1104 1275
Media & Entertainment Industry in India
Size (in INR Billions)
Projected CAGR
growth of 14%
Source: FICCI-KPMG report on Entertainment 2011
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India’s association with overseas entertainment industry is growing over the years
“Slumdog Millionaire” the film based in India and shot in India won eight
academy awards (Oscar) including best film
Awards for best original score, best song, best lyrics and best sound mixing
went to Indian artists
“Robot (Endhiran)” the highest grosser Indian film collected over INR 375
crores, in which costumes, special effects, stunts, animations were executed by
foreign professionals
Over 65 overseas players participates in a mega event of IPL which is held for
two months every year
International sensations such as Akon, Bryan Adams, Lady Gaga, Shakira all
had their concerts in various cities of India and more such artists will be visiting
India in coming months
All are targeting the 700 million plus Indian population below 30
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Sector Outlook | Global Association
With second largest population in the world and growing per capita
income levels, India has become one of the top target market for global
entertainment industry
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International Tax Issues
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International Film Co-production
Benefits of international film co-production are as under:
the ability to pool financial resources
access to the partner government's incentives and subsidies available under film
co-production treaty
India has a film co-production treaty with Brazil, France, Germany, Italy,
Switzeland, United Kingdom, etc.
access to the partner's market, or to a third market
access to a particular project initiated by the partner
cultural benefits
the opportunity to learn from the partner
Possible tax implications in India on the co-production agreement
Exposure to constitution of ‘Association of Persons (AOP)’
If not deemed as AOP, then the foreign resident is exposed to constitution of
Permanent Establishment (PE) such as Fixed base PE, Service PE, etc.
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Association of Persons (AOP)
Based on tax provisions and various judicial precedents till date, the essential
ingredients of AOP are as under;
Two or more persons,
Voluntary contributions,
A common purpose or common action,
Combination of joint enterprises,
Some kind of scheme for common arrangement
Some notable judicial precedents:
Geoconsult ZT Gmbh (AAR) [2008] - The common management and common
design held to be against the tax payer
Hyosung Corporation (AAR) [2009] - Separate contracts, independent work
execution and back to back guarantee proved to be in favor of the tax payer
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Taxation of AOP 1/2
Key tax implications are explained hereunder in brief:
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Consortium
• Not treated as ‘separate entity’
and hence profits & gains are
taxable in the hands of each
member separately
• Losses, if any, will be eligible for
set off in the hands of each
member against the gains from
its other business income,
• Deduction of common business
expenses possible
AOP
• Treated as a separate taxable
entity and hence entire profits of
the project is taxable at
maximum rate of 30.90%/
32.45%/42.02%
• Losses, if any, will not be
eligible for set off in the hands
of members, due to separate
entity treatment
• Deduction of common business
expenses difficult
Status &
taxation
Treatment of
Losses
Head office
expenses
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Taxation of AOP 2/2
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Consortium
• Each member can avail their
treaty benefits as per its
eligibility
• Members are eligible for tax
credit in their home country
• Cross charges may be
deductible
• Not possible for non-residents
AOP
• Treated as a separate taxable
entity, hence each member is
not eligible for treaty benefits
• May not be eligible for the
foreign tax credit in their home
country
• Remuneration to members is
not allowed
• Treated as resident, hence
possible
Applicability
of tax treaty
Treatment of
foreign tax
credit
Remuneration
cross charges
Taxability of
global income
If co-production contracts are indivisible contracts then it may result in
significant tax inefficiencies
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AOP | Key Differentiators
Partnering
Well defined scope, rights and obligations of Consortium partners
Pre-work arrangement
Separate contracts by each parties with the Contractors with clearly identified and
divisible scope and obligations are preferable,
If Contractor insist for a single agreement then one agreement can be executed
containing separately identifiable and divisible scope, rights and obligations of
each party,
Contract execution
Raising of separate invoices and receiving separate payments from Contractor
Actual implementation and conduct of parties is vital, otherwise
arrangement could be held as sham and disregarded
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Shooting of Films in India
Section 9(d) - No income deemed to accrue or arise on shooting of films in India, if
The producer is
An Individual who is neither resident nor a Citizen of India, or
A firm or company not having any partner/shareholder who are citizen or resident of India
Producer’s operations are confined only to ‘shooting of films’ in India
Examples: Mission Impossible 4, Singularity, Eat Pray love, Slumdog Millionaire,
The Mighty Heart, etc.
Section 9(1)(vi) - Explanation 2 specifically excludes consideration received towards sale,
distribution or exhibition of cinematographic films from the ambit of royalty
Whether the same be taxable under 9(1)(i) due to ‘business connection’?
Whether the consideration towards Video rights, broadcasting rights, DTH rights or
music rights may still be taxable as ‘royalty’?
Exhibition of Films in India
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Production of Films | Indian branch 1/3
At the initial stages of Indian business, the production of movies may be undertaken by
the foreign companies through its Indian branch
Branch constitutes fixed base PE in India and hence the foreign company will be
liable to tax both under the Act as well as tax treaty
Therefore, foreign producers of the Indian films will be governed by the provisions
of the income tax Act
Section 285B - Submission of statement by producers of films
Statement in form 52A to assessing officer per film per year, within 30 days from
end of the financial year or completion of the film, whichever is earlier
Stating the details of persons to whom the aggregate annual payments exceeds
INR 50,000
Failure to comply may attract penalty of INR 100 per day under 272A
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Production of Films | Indian branch 2/3
Rule 9A - Deduction of ‘Cost of Production’ for film producer
Outcome of exercise of power given to CBDT u/s 295 (1)
Recognizes the special characteristics of the production expenses which may
spread over a period beyond a year
Deduction Criteria
Censor
Board Certification
Exhibition/ Sale of rights
Release 90 days
before end of the financial year
Deduction of ‘Cost of production’
Full Deduction
Extent of amount realized
No Deduction
‘Cost of Production’ includes all expenditure incurred on production of the film, except
Expenditure incurred on preparation of positive films
Expenditure incurred on advertisement of the film after Censor certificate
Subsidy received from the government will be reduced from the cost
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Production of Films | Indian branch 3/3
Exhibition on a commercial basis’ - Whether it includes paid preview, direct online
release, direct exhibition on Television, etc.
Yes, as per Vishesh Films Pvt. Ltd vs. Dy. CIT (Mumbai ITAT) ITA No 5569 &
5570/Mum/2004 dated August 27, 2008
The requirement of Rule 9A is exhibition of film and the mode has not been prescribed
Hence exhibition film on Television on commercial basis clearly falls within the ambit of
Rule 9A
‘Remuneration to actors, artists, etc. paid in Kind’ - Whether liable to TDS/withholding
tax?
Yes, as per Kanchganga Seas Foods Ltd. v. CIT (SC) [2010-TII-03-SC-INTL] and
Mr. Amitabh Bachhan Vs DCIT (Mumbai Tribunal) ITA No 1584 & 2509 /Mum/2006
dated November 29, 2006
Remuneration in kind should be properly accounted at its fair market value
It should be added to the Cost of production and the TDS needs to be deducted
Precaution while computing cost of production - Rule 9A may not override other
provisions of Act, hence the deduction may be subject to other conditions such as
compliance of section 40(a)(ia), 40A, 43B, etc.
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Film Artist and Other Professionals | Non-residents
Income tax Act - Section 115BBA
Entertainers - Person, who is neither Citizen nor resident of India, may liable to tax
on gross basis @20.60% earned from performance in India
Withholding of tax on above income covered under section 194E
No income tax return needs to be filed by such entertainer, if Indian income is
restricted to above mentioned sources
Others
Under ‘fees for technical services’ / ‘royalty’ and taxable at @10.30% ,or
in all the other cases, taxable on net income @30.90%, also needs to file return and
comply with other norms such as tax audit, etc.
Tax treaty
Entertainers - Article dealing with “Artists and athletes” generally bestows the right
of taxation to the source state i.e. Indian income tax Act
Others - Those not covered under the term “Artist” may get covered under article
dealing with “Independent personal services” and generally may not be taxable in
India in the absence of their fixed base and number of days of stay below the
prescribed limit generally 180 days
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Sportsperson, sports Association | Non-residents 1/2
Income tax Act - Section 115BBA and CBDT circular No. 787 dated February 10, 2000
Sportsperson - Person, who is neither Citizen nor resident of India, may liable to
tax on gross basis @20.60% on their income earned from participation in any
game in India, advertisement and contribution of articles relating to any game in
India, subject to exemption under section 10(39)
Sports Association - Association, who is not resident of India, may liable to tax on
gross basis @20.60% on their income earned in relation to any game played in
India, subject to exemption under section 10(39)
Withholding of tax on above income covered under section 194E
No income tax return needs to be filed by such Sportspersons and Sports
associations, if Indian income is restricted to above mentioned sources
Taxation of others involved in sports
Sportsperson is not defined under the Act, generally it means “a person who takes
part in sports”
Persons such as Coaches, Supports staff, Umpires, Commentators. Cheerleaders,
etc. may not be covered under section 115BBA
If covered under ‘fees for technical services’ [section 9(1)(vii)] then taxable at his/her gross
income @10.30% in the absence of his/her fixed base and availability of PAN
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Sportsperson, sports Association | Non-residents 2/2
Taxation of others involved in sports (contd)
In all the other cases, may be taxable at net income pertaining to operations
carried in India @30.90%, also needs to file return and comply with other norms
such as tax audit, etc.
If employed by foreign company then short stay exemption may be availed
according to section 10(6)(vi)
Tax treaty
Sportspersons - Article dealing with “Artists and athletes” generally bestows the
right of taxation to the source state i.e. Indian income tax Act
Sports Association - Income earned by such entities will be covered under Article
dealing with “other income” as stated in CBDT Circular No. 787 (supra)
Others
May get covered under article dealing with “Independent personal services” and generally
may not be taxable in India in the absence of their fixed base and number of days of stay
below the prescribed limit generally 180 days
If employed by foreign company then exemption available under article dealing with
“Dependent personal services” subject to fulfillment of prescribed conditions
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Foreign Telecasting company 1/3
Income streams of foreign telecasting companies
Subscription charges for pay channel
Advertising revenues
Subscription charges - May not be covered under the term “royalty” under the Income
tax Act and hence may not be taxable in the absence of non-resident’s business
connection
Advertising revenues - Position varied over the years
Option of presumptive taxation on deemed profits i.e. 10% of the gross receipts
meant for remittance [gross receipts excluding amounts retained by advertising
agent and Indian agent’s commission] - CBDT Circular no.742 dated May 2, 1996
and no.765 dated April 15, 1998
The above circulars were withdrawn vide Circular no.6/2001 dated March 5, 2001,
w.e.f. March 31, 2001
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Foreign Telecasting company 2/3
Profit attribution incase of PE
If non-resident’s operations are solely carried out through its PE in India and if the
PE is remunerated at arms length then no further profits could be attributed to the
non-resident operations in India, as held in
CBDT Circular no.23/1969 dated July 23, 1969
CBDT Circular No. 5/2004 dated September 28, 2004
DIT v. Morgan Stanley and Co Inc [2007] 292 ITR 416 (SC)
Set Satellite (Singapore) v. DDIT [2008] 218 CTR 452 (Bombay HC)
Worley Parsons Services Pty. Ltd [2008] 170 Taxman 91 (AAR)
Galileo International Inc v. DDIT [2009] 180 Taxman 357 (Delhi HC)
BBC Worldwide Ltd. [2011] 203 Taxman 554 (Delhi HC)
Rolls Royce Plc v. DDIT (Delhi ITAT)
Amadeus Global Travel v. DDIT (Delhi ITAT)
Circular 23/1969 was withdrawn vide Circular no. 7 dated October 22,
2009 - Whether this withdrawal will effect the above stated position ?
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Foreign Telecasting company 3/3
Profit attribution incase of PE
The withdrawal of circular 23/1969 may not affect the prevailing legal position,
because:
Most of the above rulings do not refer to Circular 23/1969 including Circular
5/2004 which is not yet withdrawn, the rulings were passed considering the
judicial position under section 9(1)(i)(a) which remains unchanged
Supreme court in its ruling in the case of CCE v. M/s Ratan Melting and Wires
Industries [2008] 220 CTR 98 has held that:
“Circulars and instructions issued by the Board are no doubt binding in law on the
authorities under the respective statutes, but when the Supreme Court or the High
Court declares the law on the question arising for consideration, it would not be
appropriate for the Court to direct that the circular should be given effect to and not the
view expressed in a decision of this Court or the High Court. So far as the
clarifications/circulars issued by the Central Government and of the State Government
are concerned they represent merely their understanding of the statutory provisions.
They are not binding upon the court. It is for the Court to declare what the particular
provision of statute says and it is not for the Executive. Looked at from another angle,
a circular which is contrary to the statutory provisions has really no existence in law.”
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Payment for Transponder | New Skies ruling 1/7
Facts
Dutchco owned and operated satellites
for telecasting companies
These satellites were located outside
India and there was no presence of
Dutchco in India
The telecasting companies would relay
their programmes through the
communication transponders on the
satellites by using their own earth
stations to uplink and downlink the
signals
The transmission facility was availed of
by telecasting companies according to
their needs
Satellite
Downlink Earth station
Uplink Earth station
• Encryption of data into
TV signals
• Uplinking of the
signals
• Downlinking of the
signals
• Distribution of signals
in the footprint area
• Facilitating the
signal
transmitting
process
• Amplifying the
signals
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Payment for Transponder | New Skies ruling 2/7
Satellite
Downlink Earth station
Uplink Earth station
• Encryption of data into
TV signals
• Uplinking of the
signals
• Downlinking of the
signals
• Distribution of signals
in the footprint area
• Facilitating the
signal
transmitting
process
• Amplifying the
signals
Issues
Whether the payment received by
Dutchco from its customers for use of its
satellite will satisfy the definition of
“royalty” under the India / Netherland
treaty?
Whether the services rendered by
Dutchco through its satellite amount to
“secret process” or only “process”?
Whether the process needs to be “secret”
to be treated as “royalty”?
Definition of “royalties” in India / Netherlands
treaty:
“….means payments…. received as a consideration for the use of, or the
right to use, any …., secret formula or process,
or for information….”
The missing comma
“…., secret formula or process, ….” Should this be interpreted as:
A. “secret formula or secret process” ; or
B. “secret formula, or process” ?
What is the significance of there being no comma after “formula”?
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Payment for Transponder | New Skies ruling 3/7
Satellite
Downlink Earth station
Uplink Earth station
• Encryption of data into
TV signals
• Uplinking of the
signals
• Downlinking of the
signals
• Distribution of signals
in the footprint area
• Facilitating the
signal
transmitting
process
• Amplifying the
signals
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Ruling of Special Bench of the Tribunal
The services rendered by Dutchco through
its satellite amounts to a “process”
Payment by telecasting companies is for
the use of or right to use the “process”
The process in a transponder is not secret
Process need not be “secret” to be
characterized as “royalty” under the treaty
– i.e. interpretation B. (“secret formula, or
process”) is correct
The payment made to Dutchco by
telecasting companies will be taxable as
“royalty”
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Payment for Transponder | New Skies ruling 4/7
Satellite
Downlink Earth station
Uplink Earth station
• Encryption of data into
TV signals
• Uplinking of the
signals
• Downlinking of the
signals
• Distribution of signals
in the footprint area
• Facilitating the
signal
transmitting
process
• Amplifying the
signals
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Key observations of the Tribunal
The process of uplinking and downlinking
is embedded in the transponder which is
used by the telecasting companies as per
their needs through the earth stations
owned by such companies
Once the process in the transponder is
predetermined by Dutchco, it is made
available to the customers
Dutchco has no right to interfere in the
transmission process
Without knowing the process involved in
the transponder, the telecasting
companies will not be able to telecast their
programmes in the desired area at the
desired time
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Payment for Transponder | New Skies ruling 5/7
Satellite
Downlink Earth station
Uplink Earth station
• Encryption of data into
TV signals
• Uplinking of the
signals
• Downlinking of the
signals
• Distribution of signals
in the footprint area
• Facilitating the
signal
transmitting
process
• Amplifying the
signals
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Key observations of the Tribunal
PanAmSat decision is overruled
The word “secret” does not qualify the
word “process” in the royalty definition
under the provisions of the Act as well
as Tax Treaty
Skycell decision is distinguished
In telecommunication process, customer
merely makes a request to the service
provider and does not take part in the
process unlike the telecasting process
ISRO decision is distinguished
The ruling in ISRO was in context of a
navigational transponder which is
different from the communication
transponder used by the telecasting
companies
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Payment for Transponder | Post New Skies 6/7
Verizon Communication Singapore (Chennai ITAT) [January 2011]
While analyzing payments made by Indian customers towards International Private
Leased Circuit or dedicated bandwidth, the tribunal observed as under:
This capacity is made available on a dedicated basis to the customer for the entire contract period,
usually a year
The amount received by tax payer from Indian customers is also for the use of a ‘process’ and
would therefore qualify as royalty under Act as well as treaty
The Delhi special bench ruling in the case New Skies satellite has been referred and
relied upon
Asia Satellite Telecommunication (Delhi HC) [January 2011]
The High Court observed that:
The transponder is not distinct and separate from the satellite
The transponder is situated in orbit and merely because the satellite had a footprint in India would
not mean that the process took place in India
The payment can not be deemed to be the payment for the process
Hence, payment for transponder are not ‘royalty’ under the Act
However, the special bench ruling in the case New Skies satellite has not been
specifically discussed, reliance placed on Isro (AAR), Ishikawajima Harima Heavy
Industries (SC) and OECD commentary
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Payment for Transponder | Finance Act 2012 7/7
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Explanation 5 to section 9(1)(vi) inserted with effect from 1 June 1976 to provide
that:
The royalty includes and has always included consideration in respect of any right,
property or information, whether or not -
The possession or control of such right, property or information is with the payer
Such right, property or information is used directly by the payer
The location of such right, property or information is in India
Explanation 6 to section 9(1)(vi) inserted with effect from 1 June 1976 to provide
that:
The expression “process” includes and shall be deemed to have always included
transmission by satellite (including up-linking, amplification, conversion for down-linking
of any signal), cable, optic fibre or by any other similar technology, whether or not such
process is secret
Government clarified in May 2012, that completed assessments will not
be reopened !!
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Finance Act 2012 | Clarificatory amendment
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Explanation 6 clarifies ‘process’ however royalty covers ‘use of process’, hence all the
payments towards satellite transmission may not be covered under section 9
No withholding tax obligations could be enforced on the payment made prior to
announcement of Finance Bill 2012
Mumbai ITAT (August 2012) in Channel Guide India Limited, observed that:
“The taxpayer cannot be held to be liable to deduct tax at source relying on the
subsequent amendments made in the act with retrospective effect. The law cannot
possibly compel a person to do something which is impossible to perform relying on
Kirshna Swamy S. Pd (SC) 281 ITR 305”
If nonresidents satellite companies have filed their returns in India, then benefits of recent
amendments in Section 201 could be availed by the taxpayers with retrospective effect
relying on following judicial precedents where in similar cases, section 40(a)(ia) was given a
retrospective effect
Virgin Creations (Calcutta HC)
Piyush C Mehta (Mumbai ITAT)
By virtue of non-discrimination article in the tax treaty the benefit could be extended to
non-residents
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Direct Taxes Code
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Key amendments for Entertainment industry 1/2
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Tax provisions Income tax Act DTC
the transfer of all or any rights
in respect of cinematographic
films
Not taxable due to specific
exemption vide
explanation 2 to section
9(1)(vi)
Included in ‘royalty’
Shooting of films in India by
non-resident who is not a
Indian citizen
Not taxable due to specific
exemption vide section
9(1)(d)
There is no specific
exemption
Deduction to film producer and
film distributor
Rule 9A and
Rule 9B
Rules are yet to be notified
Income earned from house
property such Multiplex,
studio, stadium, etc.
May be considered as
business income, based
on the judicial precedents
Included in ‘income from
letting of house property’
and the standard deduction
reduced to 20%
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Key amendments for Entertainment industry 2/2
Increase in withholding tax rate from 10.51% to 20% for royalty and fees for
technical services - In the following cases the payments to non-residents may liable to
higher withholding tax:
India has more than 75 tax treaties, out of which over 30 tax treaties provide for a
withholding tax rate of 15% to 20%
Resident from a non tax treaty country may liable to higher withholding tax rate of 20%
Permanent establishment - No threshold limit has been specified for construction site,
building site, services rendered etc. hence following circumstances may lead to
constitution of PE of foreign residents from a non-tax treaty country:
Building site, construction site, rendering of services or leasing of equipments within
India for a day or more
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Open House
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Pre
limin
ary
& T
enta
tive
Thank you
The views expressed in this presentation are solely that of the speaker and do not constitute any kind of professional
advice. These views or opinion expressed in this presentation should not be applied or used without a prior professional
advice, as the review of the facts and prevailing judicial position is of utmost importance in the analysis of tax
implications.
Romesh S A Sankhe
(E) romesh_sankhe@rediffmail.com
(M) 9892 892504
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