India: Ruling on eligibility of fiscally transparent entity for tax 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: Ruling on eligibility of fiscally transparent entity for tax treaty benefits

nayak.jpg

jain.jpg

Rajendra Nayak


Aastha Jain

The Mumbai Income Tax Appellate Tribunal recently ruled in the case of M/s A.P. Moller (taxpayer) [TS-555-ITAT-2013] on the eligibility of a fiscally transparent entity for availing benefits of the India-Denmark double taxation avoidance agreement (DTAA). The taxpayer is a partnership firm established in Denmark and regarded as fiscally transparent entity as per the tax laws of Denmark, that is not taxed at entity level but its partners are taxed on the income of the firm. The taxpayer is engaged by two shipping companies (tax resident of Denmark) for management of entire operations of the shipping business at global level, including India. The taxpayer earned management fees for the above. The Indian Tax Authority denied benefit of the DTAA to the taxpayer and contended that management fees earned by it are taxable in India under the Indian tax law on a receipt basis. Further, income of shipping business is taxable in the hands of the taxpayer as there was no difference between the shipping companies and the taxpayer which was acting as the beneficial owner. The issue on non-taxability in India based on provisions of the DTAA was litigated before the tribunal. The tribunal observed that if income of the firm is fully taxed in the source country (India) and also in the hands of partners in the resident country (Denmark), then it would result in double taxation which cannot be the mandate of the DTAA. It was held that the taxpayer is eligible for the benefits of the DTAA as long as its income is fully taxed in Denmark irrespective of the fact that it is being taxed from the partners. The mode of taxability, whether in the hands of partnership or partners, cannot be given importance when the basic purpose of taxability of entire income in country of residence is met. Reliance was placed on the tribunal's ruling of Linklaters (132 TTJ 20) in this regard. Hence, under the DTAA, management fees paid by non-resident shipping companies would not be taxable in India as it is not borne by any permanent establishment in India of the payer. Further, shipping income belongs to the shipping companies only and not to the taxpayer which acts merely as a representative and carries out obligations on behalf of the shipping companies. Such income would be taxable in Denmark under Article 9 of the DTAA in the hands of the shipping companies.

The issue whether a fiscally transparent foreign partnership can be regarded as a resident of the country where the partnership is organised often arises in cross-border partnership taxation. Typically an entity would be regarded as a separate entity under a particular country's domestic law, yet viewed as fiscally transparent in another country. While most of India's tax treaties do not contain specific provisions to deal with such situations, this ruling upholds entitlement to treaty benefits in such a case of conflict in qualification.

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

EY

Tel: +91 80 4027 5275

Website : www.ey.com/india

more across site & shared bottom lb ros

More from across our site

The climbdowns pave the way for a side-by-side deal to be concluded this week, as per the US Treasury secretary’s expectation; in other news, Taft added a 10-partner tax team
A vote to be held in 2026 could create Hogan Lovells Cadwalader, a $3.6bn giant with 3,100 lawyers across the Americas, EMEA and Asia Pacific
Foreign companies operating in Libya face source-based taxation even without a local presence. Multinationals must understand compliance obligations, withholding risks, and treaty relief to avoid costly surprises
Hotel La Tour had argued that VAT should be recoverable as a result of proceeds being used for a taxable business activity
Tax professionals are still going to be needed, but AI will make it easier than starting from zero, EY’s global tax disputes leader Luis Coronado tells ITR
AI and assisting clients with navigating global tax reform contributed to the uptick in turnover, the firm said
In a post on X, Scott Bessent urged dissenting countries to the US/OECD side-by-side arrangement to ‘join the consensus’ to get a deal over the line
A new transatlantic firm under the name of Winston Taylor is expected to go live in May 2026 with more than 1,400 lawyers and 20 offices
As ITR’s exclusive data uncovers in-house dissatisfaction with case management, advisers cite Italy’s arcane tax rules
The new guidance is not meant to reflect a substantial change to UK law, but the requirement that tax advice is ‘likely to be correct’ imposes unrealistic expectations
Gift this article