India: Eligibility of German limited partnership for treaty benefits

International Tax Review is part of Legal Benchmarking Limited, 1-2 Paris Garden, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

India: Eligibility of German limited partnership for treaty benefits

nayak.jpg

jain.jpg

Rajendra Nayak


Aastha Jain

Tax treatment of hybrid or fiscally transparent entities has always been a contentious issue when it concerns the issue of availing benefits of a tax treaty in India. The Bombay High Court (HC) recently ruled, in the case of the Chiron Bearing Gmbh & Co (taxpayer) [TS-12-HC-2013(BOM)], on the eligibility of a German limited partnership (LP) to claim tax benefits under the India-Germany tax treaty.

The taxpayer offered to tax its income in the nature of royalty and fees for technical services (FTS) from India at a lower rate of 10% by invoking the treaty. Under the treaty, a person who is a resident of one or both of the contracting states can claim the benefits. A resident is defined under the treaty to mean a person which is liable to tax in a state by virtue of its domicile. Further, "person" includes any entity treated as a taxable unit in Germany.

Under the German tax laws, the taxpayer was treated as a fiscally transparent entity and its income was taxed in the hands of its partners. However, it was liable to pay "trade tax" in Germany, a tax levied on its profits. Further, the taxpayer held a tax residence certificate (TRC) issued by the German authorities certifying that the taxpayer was liable to pay trade tax in Germany.

The HC observed that trade tax paid in Germany is one of the taxes covered under Article 2 of the treaty and the taxpayer is filing trade tax returns in Germany. Hence, the taxpayer is paying tax to which the treaty applies. Furthermore, the TRC issued by the German Authorities evidences the fact that the taxpayer is considered as a taxable unit under the taxation laws of Germany.

The HC held that the taxpayer was entitled to treaty benefits and the lower withholding tax rate applicable to royalty and FTS under the treaty cannot be denied. Reliance placed by the Indian Tax Authority on OECD publications to deny treaty benefits was not sustained as the entire issue was specifically governed by the treaty.

Rajendra Nayak (rajendra.nayak@in.ey.com) & Aastha Jain (aastha.jain@in.ey.com)

Ernst & Young

Tel: +91 80 4027 5275

Website : www.ey.com/india

more across site & shared bottom lb ros

More from across our site

Experts from law firm Kennedys outline the key tax disputes trends set to define 2026, ranging from increased enforcement to continued tariff drama and AI usage
They also warned against an ‘unnecessary duplication of efforts’ in UN tax convention negotiations; in other news, White & Case has hired Freshfields’ former French tax head
Awards
Submit your nominations to this year's WIBL EMEA Awards by 16 February 2026
Defending loss situations in TP is not about denying the existence of losses but about showing, through proactive measures, that the losses reflect genuine commercial realities
Further empowerment of HMRC enforcement has been praised, but the pre-Budget OBR leak was described as ‘shambolic’
Michel Braun of WTS Digital reviews ITR’s inaugural AI in tax event, and concludes that AI will enhance, not replace, the tax professional
The report is solid and balanced as it correctly underscores the ambitious institutional redesign that Brazil has undertaken in adopting a dual VAT model, experts tell ITR
The Brazilian law firm partner warns against going independent too early, considers the weight of political pressure, and tells ITR what makes tax cool
The lessons from Ireland are clear: selective, targeted, and credible fiscal incentives can unlock supply and investment
The ITR in-house award winner delves into his dramatic novelisation of tax transformation, and declares that 'tax doesn’t need AI right now'
Gift this article