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 2026

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

Shiny new offices like Ryan’s in London Bridge aren’t just a cost – they signal that a firm is willing to align with its clients’ interests
Darren Graves will succeed Richard Houston, who is set to lead Deloitte EMEA; in other news, Morgan Lewis hired a three-partner tax team in New York
India also signed its first-ever bilateral APAs with France, Ireland, Indonesia and Sweden last year, the CBDT revealed
Chile’s revamped GAAR marks a shift toward structural scrutiny, pushing MNEs to strengthen tax governance, economic substance and compliance strategies
New reforms represent the most seismic shift in Canadian TP legislation since its enactment and a clear inflection point for MNEs, ITR has heard
Spain did not transpose EU VAT rules for SMEs or works of art; in other news, an increased VAT threshold came into force in South Africa
While the IBS incorporates taxable events previously covered by state and municipal taxes, its governance and operational logic represent a significant departure from the legacy model
The new office on the fourth floor of 4 More London will span 14,230 square feet, with the potential to expand to the first and second floors
MNEs now face a shift from modelling to execution as the side‑by‑side deal forces tax teams to upgrade systems, harmonise data, and prevent costly pillar two mismatches
As recent surveys suggest a disconnect between AI adoption and employee engagement, the big four risk digging themselves into a strategic hole
Gift this article