Protocol - Protocol - Hong Kong

PROTOCOL At the time of signing of the Agreement between the Government of the Hong Kong Special Administrative Region of the People s Republic of China and the Government of the Republic of India for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income (the Agreement ), the two Governments have agreed upon the following provisions which shall form an integral part of the Agreement: 1. For the purposes of the Agreement, it is understood that in relation to the Hong Kong Special Administrative Region, the terms ordinarily resides and normally managed or controlled have the meaning they have under the law of the Hong Kong Special Administrative Region as amended from time to time without affecting the general principle thereof. In addition to above, with reference to clause (i) of subparagraph (a) of paragraph 1 of Article 4 (Resident) of the Agreement, it is understood that an individual ordinarily resides in the Hong Kong Special Administrative Region if the individual has a substantial presence, permanent home or habitual abode in the Hong Kong Special Administrative Region, and he has personal and economic relations with the Hong Kong Special Administrative Region. In addition to above, with reference to clauses (iii) and (iv) of subparagraph (a) of paragraph 1 of Article 4 (Resident) of the Agreement, it is understood that a company incorporated or any other person constituted outside the Hong Kong Special Administrative Region is normally managed or controlled in the Hong Kong Special Administrative Region if its executive officers and senior management employees make day-to-day key decisions in the Hong Kong Special Administrative Region for the strategic, financial and operational policies for the company or the person, and the staff of the company or the person conduct in the Hong Kong Special Administrative Region, the day-to-day activities necessary for making those decisions. 2. For the purposes of the Agreement, it is understood that in relation to the Hong Kong Special Administrative Region, the term right of abode has the meaning it has under the law of the Hong Kong Special Administrative Region as amended from time to time without affecting the general principle thereof. 3. With reference to paragraph 5 of Article 2 (Taxes Covered) of the Agreement, it is understood that the term penalty or interest includes, in the case of the Hong Kong Special Administrative Region, any sum added to Hong Kong Special Administrative Region tax by reason of default and recovered therewith and additional tax under Section 82A of the Inland Revenue Ordinance (Chapter 112 of the Laws of Hong Kong). 4. With reference to clause (i) of subparagraph (a) of paragraph 1 of Article 3 (General Definitions) of the Agreement, it is understood that the term any place where the tax laws of the Hong Kong Special Administrative Region of the People s Republic of China apply refers to the land and sea comprised within the boundary of the Hong Kong Special Administrative Region of the People s Republic of China, together with the Shenzhen Bay Port Hong Kong Port Area. 5. With reference to Article 26 (Exchange of Information) of the Agreement, it is understood that: (a) information exchanged shall not be disclosed to any third jurisdiction. (b) the competent authority of India may disclose information to: (i) Parliamentary Committees; (ii) Special Investigation Team (SIT) constituted by Government; and (iii) any other oversight bodies mutually agreed upon in writing. (c) the requested Contracting Party shall disclose any information that precedes the date on which the Agreement has effect for the taxes covered by the Agreement, insofar the information is foreseeably relevant for a fiscal year or taxable event following that date. (d) in addition to the taxes covered by the Agreement, the provisions of this Article also apply to the following taxes that are administrated and enforced in India: (i) the wealth tax; (ii) the excise and customs duties; (iii) the goods and services tax (GST); and (iv) the sales and value added taxes. 6. It is understood that the Contracting Parties may review the provisions of the Agreement at the request of either Contracting Party. IN WITNESS WHEREOF the undersigned, duly authorized thereto, have signed this Protocol. DONE in duplicate at Hong Kong this 19th day of March 2018, in the Chinese, Hindi and English languages, all texts being equally authentic. In case of divergence of interpretation, the English text shall prevail.