Double Taxation Avoidance Agreement Amendment

Each state has the capacity to conclude international treaties. However, the manner in which such a treaty is implemented in domestic law is a matter of constitutional law. India is a dualistic state and the obligations arising from the agreement or treaties are therefore not binding on their own for Indian nationals. Article 253 of the 1950 Indian Constitution provides that Parliament has the power to obtain laws on all or part of India`s territory for the implementation of an international treaty, international agreement or agreement. Therefore, international treaties are not self-governing in India unless they are regulated by law. If the retrospective amendment is valid, it is applicable under national tax law and provisions/regulations subject to national tax legislation. The first question that needs to be debated is whether the dBAA is legislation subject to the Income Tax Act. I think the „no” and therefore the power to make retroactive changes is limited to the income tax act and cannot be extended to the treaty. The above amendment specifies that the profits of a company or entity in their respective states are taxed in accordance with their own laws if the institution or organization does not fall within the definition of „permanent establishment” as amended by the protocol. India and Sri Lanka are members of the inclusion framework and must therefore implement the minimum standards set out in the OECD BePS Action Reports for their ATADs for their TBAAs, with an inclusive framework. The minimum standards under BEPS 6 can be met by the multilateral agreement on the implementation of tax contract measures to prevent erosion and profit shifting (base) or through bilateral agreements. According to the Cypriot Finance Minister and the Russian Finance Ministry, significant changes were made to the agreement on double tax evasion between Russia and Cyprus in August 2020. The main change is the increase in the tax rate levied on the payment of dividends and money borrowed from the source of payment.

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