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CBDT relaxes Avoidance Agreement

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CBDT relaxes Avoidance Agreement

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In a Press Release on 27 November 2017, the Central Board of Direct Taxes (‘CBDT’) has issued a clarification, thereby relaxing India’s position on the acceptance of Transfer Pricing Mutual Agreement Procedure (‘MAP’) cases and bi-lateral Advance pricing agreement (‘APA’) in cases of countries where Article 9(2) of OECD Model tax Commentary is absent.

Multi-national Enterprises (‘MNEs’) had made representations to the Government on this issue where the Associated Enterprise (‘AE’) of the Indian entity is resident of a country with which India has entered into a Double Taxation

CBDT relaxes Avoidance Agreement (‘DTAA’) but the Agreement does not contain Paragraph 2 of

Article 9 (or its relevant equivalent Article) relating to ‘Corresponding Adjustment’. India’s position on The Government, on its part, after examining the matter has clarified that CBDT will accept Transfer Pricing MAP and bi-lateral APAs applications regardless of the the acceptance of presence or otherwise of Paragraph 2 of Article 9 (or its relevant equivalent Article) in the DTAAs. transfer pricing

NANGIA’S TAKE

MAP and bi-lateral

Clarification of India’s position on DTAAs where Article 9(2) was absent is certainly APA, absent Article a welcome news and strengthens the Government’s resolve of fostering a nonadversarial tax regime. This will open the gates for many bi-lateral APAs and 9(2) in DTAA transfer pricing MAP cases. Definitely, this sends out a positive signal and assures the Government’s resolve to counter the pending litigations in an efficient manner.

In the past, the Government has made efforts to renegotiate the DTAAs with many countries and include Article 9(2) to allow MNEs to take recourse to bi-lateral APA and MAP to resolve their pending litigation on transfer pricing matters. A clarification of India’s stand on the matter clearly spells out that the Government is seriously examining the concerns raised by the MNEs and taking steps to resolve the same. It also reinforce Governments’ focus on improving India’s ranking on ease of doing business index.

MNEs from two of the essential commerce companions, France and Germany, being the biggest beneficiaries on this.

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