India moves to revamp its direct tax law
International Tax Review is part of the Delinian Group, Delinian Limited, 4 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2024

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

India moves to revamp its direct tax law

Sponsored by

logo.png
mobile phone

The introduction of the goods and services tax last year has led to a consolidation of the indirect tax regime in India. The government is now moving to overhaul the direct tax regime.

India moves to revamp its direct tax law

The introduction of the goods and services tax last year has led to a consolidation of the indirect tax regime in India. The government is now moving to overhaul the direct tax regime. To this end, it has set up a task force to review the existing Income-tax Act, 1961 and to draft a new direct tax law for the country.

This is not the first time that a complete overhaul of India's direct tax laws has been attempted. In 2009, a draft Direct Taxes Code Bill was released for public comments, after which it was introduced in Parliament in 2010. However, this Bill lapsed with the dissolution of the lower house of Parliament before the 2014 elections. Several features of the lapsed Direct Taxes Code Bill were, however, incorporated into the existing Act, including the General Anti-Avoidance Rule (GAAR), which came into force in April 2017.

The existing task force comprises revenue officials as well as lawyers, accountants and economists. The terms of reference of the task force specifically require it to consider international best practices and systems adopted in various other countries. The task force is expected to submit its report to the government by May 2018.

India's reservations on OECD Model Commentary on permanent establishments

In 2017, the OECD released an update (2017 update) to the Model Tax Convention and Commentary. In line with its longstanding position on expanding source-based taxing rights, India has put forward several important reservations on the permanent establishment (PE) issue, which form part of this update.

On websites constituting a PE

The OECD Commentary notes that a website by itself cannot constitute a PE, although the location of a server hosting a website could constitute a fixed place PE of an enterprise that operates the server. India, however, disagreed with this interpretation and noted that a website could constitute a PE in certain circumstances where it leads to the substantial economic presence of an enterprise. This approach broadly follows the option set out in the final report on Action 1 of the BEPS project.

On agency PE

Under the 2017 update, the scope of a dependent agent PE has been widened to include a person who habitually plays a principal role in the conclusion of contracts that are routinely concluded (without any material modifications) by the non-resident enterprise. India has made a reservation to exclude the term 'routinely' from this statement.

India has also stated that distribution of goods by an associated or a closely connected enterprise in cases where risks are not borne by such enterprise (e.g. in cases of low risk distributors) may give rise to a PE of the enterprise whose goods are sold.

India has also stated that an agent who is acting exclusively for an enterprise cannot be considered to be an independent agent.

Dharawat

Gangadharan

Rakesh

Dharawat

Hariharan

Gangadharan

Rakesh Dharawat (rakesh.dharawat@dhruvaadvisors.com) and Hariharan Gangadharan (hariharan.gangadharan@dhruvaadvisors.com)

Dhruva Advisors LLP

Tel: +91 22 6108 1000

Website: www.dhruvaadvisors.com

more across site & bottom lb ros

More from across our site

EMEA research now open
Luis Coronado suggests companies should embrace technology to assist with TP data reporting, as the ‘big four’ firm unveils a TP survey of over 1,000 professionals
The proposed matrix will help revenue officers track intra-company transactions from multinationals
The full list of finalists has been revealed and the winners will be presented on June 20 at the Metropolitan Club in New York
The ‘big four’ firm has threatened to legally pursue those behind the letter, which has been circulating on social media
The guidelines have been established in the wake of multiple tax scandals and controversies that have rocked the accounting profession
KPMG Netherlands’ former head of assurance also received a permanent bar and $150,000 fine; in other news, asset management firm BlackRock lost a $13.5bn UK tax appeal
The new, fully integrated office will also offer M&A, dispute resolution, IP and corporate tax services
The new guidance concerns a recent 1% excise tax on the repurchases of corporate stock for both US and certain foreign companies
Interpath has hired a managing partner from rival accounting firm BDO to lead the new operation
Gift this article