GOVERNMENT OF INDIA
MINISTRY OF FINANCE
DEPARTMENT OF REVENUE
(INCOME-TAX)
NEW DELHI
NOTIFICATION NO
80/2016, Dated: September 8, 2016
S.O. 2894(E). -
Whereas, an Agreement between the Government of the Republic of India
and the Government of the Republic of Seychelles for the Exchange of
Information with respect to Taxes (hereinafter referred to as the said
Agreement) as set out in the Annexure to this notification, was signed
at New Delhi on the 26th day of August, 2015;
And
whereas, the said Agreement entered into force on the 28th day of June,
2016 being the date of the later of the notifications of the
completion of the procedures required by the respective laws for entry
into force of the said Agreement, in accordance with paragraph 2 of
Article 12 of the said Agreement;
Now,
therefore, in exercise of the powers conferred by sub-section (1) of
section 90 of the Income-tax Act, 1961 (43 of 1961), the Central
Government hereby notifies that all the provisions of said Agreement, as
annexed hereto as Annexure, shall be given effect to in the Union of
India, in accordance with Article 12 of the said Agreement.
ANNEXURE
AGREEMENT
BETWEEN
THE GOVERNMENT OF THE REPUBLIC OF INDIA
AND
THE GOVERNMENT OF THE REPUBLIC OF SEYCHELLES
FOR
THE EXCHANGE OF INFORMATION
WITH RESPECT TO TAXES
The
Government of the Republic of India and the Government of the Republic
of Seychelles, desiring to facilitate the exchange of information with
respect to taxes have agreed as follows:
Article 1
Object and Scope of the Agreement
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 provision of this Agreement and shall be treated as
confidential in the matter provided in Article 8. The rights and
safeguards secured to persons by the laws or administrative practice of
the requested Party remain applicable to the extent that they do not
unduly prevent or delay effective exchange of information.
Article 2
Jurisdiction
Information
shall be exchange in accordance with this Agreement without regard to
whether the person to whom the information relates is, or whether the
information is held by, a resident of a Contracting Party. However, a
requested Party is not obliged to provide information which is neither
held by its authorities nor is in the possession or control of persons
who are within its territorial jurisdiction.
Article 3
Taxes Covered
1. The taxes which are the subject of this Agreement are:
a)
in India, taxes of every kind and description imposed by the Central
Government or the Governments of political subdivisions or local
authorities, irrespective of the manner in which they are levied;
b)
in Seychelles, taxes of every kind and description imposed by the
Government, irrespective of the manner in which they are levied.
2.
This Agreement shall also apply to any identical or substantially
similar taxes imposed after the date of signature of this Agreement in
addition 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 which may affect the obligations of that Party pursuant to this
Agreement.
Article 4
Definitions
1. 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 of the Sea;
b)
the term "Seychelles" means the territory of the Republic of Seychelles
including its exclusive economic zone and continental shelf where
Seychelles exercises sovereign rights and jurisdiction in conformity
with the provisions of the U.N. Convention on the Law of the Sea;
c) the term "Contracting Party" means India or Seychelles as the context requires;
d) the term "competent authority" means
i) in the case of India, the Finance Minister, Government of India, or its authorized representative;
ii) in the case of Seychelles, the Minister responsible for Finance, or its authorized representative;
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 Parties;
f) 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" if the 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 value of the company;
i) the term "recognised stock exchange" means
(i)
in India, the National Stock Exchange, the Bombay Stock Exchange, and
any other stock exchange recognised by the Securities and
Exchange Board of India;
(ii)
in Seychelles, a securities exchange licensed under the Securities Act,
2007 or any other law governing securities exchanges; and
(iii) any other stock exchange which the competent authorities agree to recognise for the purposes of this Agreement;
j) the term "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 public. 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 restricted to a limited group of investors;
l)
the term " tax" means any tax to which this Agreement applies; m)
the term "requesting Party" means the Contracting Party-
(iii) submitting a request for information to, or
(iv) having received information from,
the requested Party;
n) the term "requested Party" means the Contracting Party-
(iii) which is requested to provide information, or
(iv) which has provided information;
o) the term "information gathering measures"
means laws and administrative or judicial procedures that enable a
Contracting Party to obtain and provide the requested information;
p) the term "information" means any fact, statement, document or record in any form whatever.
2.
As regards the application of this Agreement at any time by a
Contracting Party, any term not defined therein shall, unless the
context otherwise requires or the competent authorities agree to a
common meaning pursuant to the provisions of Article 11 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 Upon Request
1.
The competent authority of the requested Party shall provide upon
request information for the purposes referred to in Article 1. 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 if such 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 Party 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 specified in Article 1 of this Agreement, has the
authority to obtain and provide upon request:
(a)
information held by banks, other financial institutions, and any
persons acting in an agency or fiduciary capacity including
nominees and trustees;
(b)
information regarding the legal and beneficial ownership of companies,
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. This
Agreement does 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.
5.
The competent authority of the 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)
a statement of the information sought including its nature and the form
in which the requesting Party wishes to receive the information
from the requested Party;
(d) the tax purpose for which the information is sought;
(e)
grounds for believing that the information requested is held in the
requested Party or is in the possession or control of a person
within the jurisdiction of the requested Party;
(f)
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.
6.
The competent authority of the requested Party shall forward the
requested information as promptly as possible to the requesting Party.
To ensure a prompt response, the competent authority of the requested
Party shall:
(a)
Confirm receipt of a request in writing to the competent authority of
the requesting Party and shall 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 furnish 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 of the requesting Party, the
requested Party may allow representatives of the competent authority
of the requesting Party to enter the territory of the requested Party,
to the extent permitted under its domestic 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
Party of the time and place of the intended meeting with the
individuals concerned.
2.
At the request of the competent authority of the 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 territory of the requested Party.
3.
If the request referred to in paragraph 2 is acceded to, the competent
authority of the requesting 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
examination. 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
1. The competent authority of the requested Party 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 disclosure of the information would be contrary to public policy (ordre public) of the requested Party.
2. This Agreement shall not impose on a Contracting Party the obligation:
(i)
to supply information which would disclose any trade, business,
industrial, commercial or professional secret or trade process,
provided that 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
(ii)
to obtain or provide information, which would reveal confidential
communications between a client and an attorney, solicitor or
other admitted legal representative where such communications are:
(a) produced for the purposes of seeking or providing legal advice or
(b) produced for the purposes of use in existing or contemplated legal proceedings; or
(iii)
to carry out administrative measures at variance with its laws and
administrative practices, provided nothing in this subparagraph
shall affect the obligations of a Contracting Party under paragraph 4 of
Article 5.
3. A request for information shall not be refused on the ground that the tax claim giving rise to the request is disputed.
4.
The requested Party 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 decline to provide information solely
because the request does not include all the information required
under Article 5 if the information can otherwise be provided according
to the law of the requested Party.
6.
The requested Party 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 of the requested Party as compared with a national 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 and administrative bodies) in the
jurisdiction of the Contracting Party concerned with the assessment or
collection of, the enforcement or prosecution in respect of, or the
determination of appeals in relation 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 express written consent of the competent authority
of the requested Party.
Article 9
Costs
1.
Unless the competent authorities of the Contracting Parties otherwise
agree, ordinary costs incurred in providing assistance shall be borne
by the requested Party, and subject to the provisions of this Article,
extraordinary costs incurred in providing assistance shall, if they
exceed 500 US dollars, be borne by the requesting Party.
2. The competent authorities will consult each other, in advance, in
any particular case where extraordinary costs are likely to exceed 500
US dollars to determine whether the requesting Party will continue to
pursue the request and bear the cost.
3. The competent authorities shall consult from time to time with regard to this Article.
4.
Ordinary costs include internal administration costs, any minor
external costs and overhead expenses incurred by the requested Party
in reviewing and responding to information requests submitted by the
requested Party. Examples of extraordinary costs incurred in providing
assistance include, but are not limited to the following:
(a) reasonable fees charged by third parties for copying documents on behalf of the requested Party;
(b) reasonable costs of engaging interpreters, translators or other agreed experts;
(c) reasonable costs of conveying documents to the requesting Party;
(d) reasonable litigation costs of the requested Party in relation to a specific request for information; and
(e) reasonable costs for obtaining depositions or testimony.
Article 10
Implementation Legislation
The
Contracting Parties shall (where they have not already done so) enact
any legislation necessary to complywith, and give effect to, the terms
of the Agreement.
Article 11
Mutual Agreement Procedure
1.
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.
2.
In addition, the competent authorities of the Contracting Parties may
mutually agree on the procedures to be used under Article 5 and 6 of
this Agreement.
3.
The competent authorities of the Contracting Parties may communicate
with each other directly for purposes of reaching agreement under this
Article.
Article 12
Entry into Force
1.
The Contracting Parties shall 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 force on the date of the later of the
notifications referred to in paragraph 1 of this Article and shall
thereupon have effect forthwith.
Article 13
Termination
1. This Agreement shall remain in force until terminated by either Contracting Party.
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 termination shall be
dealt with in accordance with the provisions of the Agreement.
4. If the Agreement is terminated, the Contracting Parties shall
remain bound by the provisions of Article 8 with respect to any
information obtained under the Agreement. In witness whereof, the
undersigned, being duly authorised thereto, have signed this Agreement.
DONE
in duplicate at New Delhi this 26th day of August, 2015, each in the
Hindi and English languages, all texts being equally authentic. In
case of divergence of interpretation, the English text shall prevail.
For the Government of the
Republic of India:
(Arun Jaitley)
Finance Minister
For the Government of the
Republic of Seychelles:
(Joel Morgan)
Minister for Foreign Affairs And Transport
[F.No.503/07/1993-FT&TR-IV]
(Rajat Bansal)
Jt Secy
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