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

Awards
It was another banner year for Deloitte, which picked up more awards than any other firm at a gala ceremony held at The Londoner in Leicester Square
The big four firm has been embroiled in a scandal over partners’ misuse of confidential board papers to pitch for and win corporate audits for Westpac and Dexus
Drawing on lessons from the PepsiCo case, tax lawyer Paul McNab explains why the ATO's latest royalty guidance should concern multinationals well beyond the technology sector
As pillar two exposes the limits of fragmented tax processes, organisations are rethinking their operating models to create the trusted data foundations that AI demands
World Tax data shows Matt Donnelly is moving from a Tier 3 transactional tax practice to a Tier 1 market leader, underlining Kirkland & Ellis’s pull at the top end of the market
Nexdigm's Maulik Doshi and infer360 co-founder Sunil Agarwal dig deeper into their partnership and discuss why the tax technology industry is consolidating
Advisers won’t be short of work in a world of increased valuation disputes, documentation requirements and behavioural responses from clients seeking to protect their wealth
Jaydeep Menon explains how Frazier & Deeter built a specialist practice which helps UK start-ups expand into the US and why private equity backing is accelerating its ambitions
As joint audits, data sharing and pillar two reshape tax controversy, multinational groups can no longer afford to manage disputes one jurisdiction at a time
Brazil's tax system is being reshaped by VAT , pillar two and TP reform. Fallet explains why those changes convinced him to lead a new practice
Gift this article