Protocol - Protocol - Brazil

PROTOCOL 1 [ Whereas, the Protocol, amending the Convention and the Protocol between the Government of the Republic of India and the Government of the Federative Republic of Brazil for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income signed at New Delhi on the 26th April, 1988, was signed at Brasilia on the 15th day of October, 2013, as set out in the Annexure appended to this notification and hereinafter referred to as the said amending Protocol; And whereas the said amending Protocol entered into force on the 6th day of August, 2017, being thirty days after the date of receipt of later of the notifications of the completion of the procedures required by laws of the Contracting States for bringing into force of the said amending Protocol; Now, therefore, in exercise of the powers conferred by section 90 of the Income tax Act, 1961 (43 of 1961) , the Central Government hereby notifies that all the provisions of said amending protocol shall have effect in the Union of India with effect from the 6th day of August, 2017. ANNEXURE PROTOCOL AMENDING THE CONVENTION BETWEEN THE GOVERNMENT OF THE REPUBLIC OF INDIA AND THE GOVERNMENT OF THE FEDERATIVE REPUBLIC OF BRAZIL FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME, SIGNED AT NEW DELHI ON 26 APRIL, 1988 PREAMBLE The Government of the Republic of India and the Government of the Federative Republic of Brazil; Desiring to amend the Convention for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, signed at New Delhi on 26 April, 1988 (hereinafter referred to as the Convention ); Have agreed as follows: Article I Article 26 of the Agreement shall be deleted and replaced by the following: ARTICLE 26 EXCHANGE OF INFORMATION 1. The competent authorities of the contracting States shall exchange such information as is foreseeable relevant for carrying out the provisions of this Agreement or to the administration or enforcement of the domestic laws concerning taxes of every kind and description imposed on behalf of the Contracting States, or of their political subdivisions or local authorities, insofar as the taxation there under is not contrary to the Convention. The exchange of information is not restricted by Articles 1 and 2, but applies only to federal taxes in the case of Brazil. 2. Any information received under paragraph 1 by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, the determination of appeals in relation to the taxes referred to in paragraph 1, or the oversight of the above. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions. Notwithstanding the foregoing, information received by a Contracting State may be used for other purposes when such information may be used for such purposes under the laws of both States and the competent authority of the supplying State expressly authorizes such use in writing. 3. In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting State the obligation: A. to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State; B. to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; C. to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information the disclosure of which would be contrary to public policy (order public). 4. If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall use its information gathering measures to obtain the requested information, even though that other State may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 but in no case shall such limitations be construed to permit a Contracting State to decline to supply information solely because it has no domestic interest in such information. 5. In no case shall the provisions of paragraph 3 be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person.‖ Article II Each Contracting State shall notify the other in writing, through the diplomatic channel, of the completion of the procedures required by its laws for the bringing into force of this Protocol. The Protocol shall enter into force 30 days after the date of receipt of the later of these notifications and its provisions shall have effect on that date. Article III This Protocol, which shall form an integral part of the Convention, shall remain in force as long as the Convention remains in force and shall apply as long as the Convention itself is applicable. IN WITNESS WHEREOF the undersigned, duly authorized, have signed this Protocol. DONE in duplicate at Brasilia, this 15 day of October, 2013, in the Hindi, Portuguese and English languages, all three texts being equally authentic. In case of divergence of interpretation, the English text shall prevail. FOR THE GOVERNMENT OF THE REPUBLIC OF INDIA Sd/- Ashok Tomar Ambassador of India to Brazil FOR THE GOVERNMENT OF THE FEDERATIVE REPUBLIC OF BRAZIL Sd/- Carlos Barreto Secretary of the Federal Revenue of Brazil ] *************** NOTES:- 1 . Substituted vide F. No. 500/101/2016 -FT TR V - S.O. 93(E) dated 04-01-2018 w.e.f. 06-08-2017 before it was read as, At the moment of the signature of the Convention between the Republic of India and the Federative Republic of Brazil for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income the undersigned, being duly authorised thereto, have agreed upon the following provisions which constitute an integral part of the Convention : 1. With reference to Article 3, paragraph I, item (q) - It is understood that the term tax shall not include any amount which is payable in respect of any default or omission in relation to the taxes to which this Convention applies or which represents a penalty imposed relating to those taxes. 2. With reference to Article 12, paragraph 3 - It is understood that the provisions of paragraph 3 of Article 12 shall apply to payments of any kind to any person, other than payments to an employee of a person making such payments, in consideration for the rendering of assistance or services of a managerial, administrative, scientific, technical or consultancy nature. 3. With reference to Article 20 - It is understood that the term museum or other cultural institution shall refer only to such organisations which have been approved in this regard by the competent authority of the Contracting State concerned. 4. With reference to Article 24, paragraph 2 - It is understood that the provisions of paragraph 5 of Article 10 are not in conflict with the provisions of paragraph 2 of Article 24. 5. It is understood that either Contracting State may, at any time not earlier than ten years from the date on which the Convention enters into force, seek to review any or all of its provisions, by notice in writing through competent authority thereof to the competent authority of the other Contracting State. The competent authorities shall, within a period of six months thereafter, initiate appropriate proceedings for such review. In witness whereof the undersigned being duly authorised thereto have signed this Protocol. Done at New Delhi this 26th day of April, 1988, in duplicate, in Hindi, Portuguese and English languages, all three texts being equally authentic. In case of any divergence of interpretation the English text shall prevail. For the Government of the Republic of India Sd/- P. K. APPACHOO For the Government of the Federative Republic of Brazil. Sd/- OCTAVIO RAINHO DA SILVA NEVES [Notification No. 9020/F. No. 501/4/84-FTD] N. C. JAIN. Jt. Secy.