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

The big four firm is rightfully prioritising transparency and accountability as it seeks to rebuild from its scandal, but a glaring structural issue remains
A recent hiring flurry has taken the firm’s number of partner appointments this year to 121 and put it on track to hit 160 partner target early
The move brings specialist tax and litigation capability to EY as it seeks to close the gap on Baker McKenzie and Venezuela’s leading local firms
The industry’s response to AI requires an unfamiliar ingredient as firms battle to shape their futures
The ambitious big four challenger firm has also appointed ex-RSM partner Brad Ashton to build out its customs and global trade practice
The big four firm allegedly reviewed backdated documents and signed off on accounts that removed hundreds of millions of dollars of Abramovich’s assets
New Tier 1 entrants and an expanding cohort of established players indicate that law firms are becoming increasingly credible challengers in Europe's TP market
Awards
Leading firms and individuals gathered in Dubai to celebrate standout legal, dealmaking and tax work across the region
Tax authorities want more revenue, have better tools to find it and are increasingly willing to fight for it
Audifina, the sixth-largest firm of its kind in Lithuania, will bring a 90-strong team with offices in Vilnius and Kaunas to RSM’s international platform
Gift this article