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TMI BlogAgreement for Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to taxes on income between India and Myanmar to be effective from 1-04-2010X X X X Extracts X X X X X X X X Extracts X X X X ..... ON AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME THE GOVERNMENT OF THE REPUBLIC OF INDIA AND THE GOVERNMENT OF THE UNION OF MYANMAR DESIRING to conclude an Agreement for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, and with a view to promoting economic cooperation between the two countries, have agreed as follows: ARTICLE 1 PERSONS COVERED This Agreement shall apply to persons who are residents of one or both of the Contracting States. ARTICLE 2 TAXES COVERED 1. This Agreement shall apply to taxes on income imposed on behalf of a Contracting State or of its political subdivisions or local authorities, irrespective of the manner in which they are levied. 2. There shall be regarded as taxes on income all taxes imposed on total income, or on elements of income, including taxes, on gains from the alienation of movable or immovable property and taxes on the total amount of wages or salaries paid by enterprises. 3. The existing taxes to which the Agreement shall apply are in particular: (a) in Myanmar i) the income tax imposed under the Income Tax Law 1974 (Law No. 7 of 1974); and ii) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayable in respect of any default or omission in relation to the taxes to which this Agreement applies or which represents a penalty or fine imposed relating to those taxes; (j) the term "competent authority" means : (i) in the case of Myanmar, the Minister for Finance and Revenue Government of Union of Myanmar or his authorized representative; (ii) in India, the Finance Minister, Government of India, or its authorized representative; (k) the term "international, traffic" means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State; (l) the term "fiscal year" means: (i) in the case of Myanmar: the financial year beginning on the 1st day of April; (ii) in the case of India : the financial year beginning on the 1st day of April. 2. As regards the application of the Agreement at any time by a Contracting State any term not defined therein shall, unless the context otherwise requires, have the meaning that it has at that time under the law of that State for the purposes of the taxes to which the Agreement applies an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall include especially: (a) a place of management; (b) a branch; (c) an office; (d) a factory; (e) a workshop; (f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources; (g) a sales outlet; (h) a warehouse in relation to a person providing storage facilities for others; (i) a farm, plantation or other place where agricultural, forestry, plantation or related activities are carried on. 3. A building site or construction, installation or assembly project or supervisory activities in connection therewith constitutes a permanent establishment only if such site, project or activities last more than 270 days. 4. Notwithstanding the preceding provisions of this Article the term "permanent establishment" shall be deemed not to include: (a) the use of facilities solely for the purpose of storage or display of goods or merchandise belonging to the enterprise; (b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage or display; (c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons are acting in the ordinary course of their business. However, when the activities of such an agent are devoted wholly or almost wholly on behalf of that enterprise, he will not be considered an agent of an independent status within the meaning of this paragraph. 8. The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other. ARTICLE 6 INCOME FROM IMMOVABLE PROPERTY 1. Income derived by a resident of a Contracting State from immovable property situated in the other Contracting State may be taxed in that other State. 2. The term "immovable property" shall have the meaning which it has under the law of the Contracting State in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charges for specific services performed or for management, or, except in the case of banking enterprises by way of interest on moneys lent to the permanent establishment. Like wise, no account shall be taken, in the determination of the profits of a permanent establishment, for amounts charged (otherwise than toward reimbursement of actual expenses), by the 'permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents, know-how or other rights, or by way of commission or other charges for specific services performed or for management, or, except in the case of a banking enterprise, by way of interest on moneys lent to the head office of the enterprise or any of its other offices. 4. Insofar as it has been customary in a Contracting State to determine the profits to be attributed to a permanent establishment on the basis of an apportionment of the total profits of the enterprise to its various parts, nothing in paragraph 2 shall preclude a Contracting State from determining the profits to be taxed by such an apportionment as may be customary; the method of apportion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an enterprise of the other Contracting State, or (b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State, and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly. 2. Where a Contracting State includes in the profit of an enterprise of the State - and taxes accordingly -profits on which an enterprise of the other Contracting State has been charged to tax in that other State and the profits so included are profits which would have accrued to the enterprise of the first-mentioned State if the conditions made between the two enterprises had been those which would have been made between independent enterprises, then that other State shall make an appropriate adjustment to the amount of the tax char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State. ARTICLE 11 INTEREST 1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. However, such interest may also be taxed in the Contracting State in which it arises, and according to the laws of that State, but if the beneficial owner of the interest is a resident of the other Contracting State, the tax so charged shall not exceed 10 per cent of the gross amount of the interest. 3. Notwithstanding the provisions of paragraph 2, interest arising in a Contracting State shall be exempt from tax in that State, provided that it is derived and beneficially owned by: (a) the Government, a political sub-division or a local authority of the other Contracting State; or (b) (i) in the case of Myanmar, the Central Bank of Myanmar, Myanmar Foreign Trade Bank, Myanmar Investment and Commercial Bank, Myanmar Economic Bank; and (ii) in the case of India, the Reserve Bank of India, the Export-Import Bank of India, the National Housing Bank, the Small Industries Development Bank of India; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OYALTIES 1. Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. However, such royalties may also be taxed in the Contracting State in which they arise, and according to the laws of that State, but if the beneficial owner of the royalties is a resident of the other Contracting State, the tax so charged shall not exceed 10 per cent of the gross amount of the royalties. 3. The term "royalties" as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work including cinematograph films or films or tapes used for television or radio broadcasting, any patent, trade mark, design or model, plan, secret formula or process, or for the use of, or the right to use, industrial, commercial, or scientific equipment, or for information concerning industrial, commercial or scientific experience. 4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the royalties being a resident of a Contracting State, carries on business in the other Contracting State in which the royalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise ), or of such fixed base, may be taxed in that other State. 3. Gains from the alienation of ships or aircraft operated in international traffic, or movable property pertaining to the operation of such ships or aircraft shall be taxable only in the Contracting State of which the alienator is a resident. 4. Gains from the alienation of shares of the capital stock of a company the property of which consists directly or indirectly principally of immovable property situated in a Contracting State may be taxed in that State. 5. Gains from the alienation of shares other than those mentioned in paragraph 4 in a company which is a resident of a Contracting State may be taxed in that State. 6. Gains from the alienation of any property other than that referred to in paragraphs 1, 2, 3, 4 and 5, shall be taxable only in the Contracting State of which the alienator is a resident. ARTICLE 14 INDEPENDENT PERSONAL SERVICES 1. Income derived by an individual who is a resident of a Contracting State in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic, by an enterprise of a Contracting State may be taxed in that State. ARTICLE 16 DIRECTORS' FEES Directors' fees and other similar payments derived by a resident of a Contracting State in his capacity as a member of the Board of Directors of a company which is a resident of the other Contracting State may be taxed in that other State. ARTICLE 17 ARTISTES AND SPORTS PERSONS 1. Notwithstanding the provisions of Articles 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsperson from personal activities as such exercised in the other Contracting State, may be taxed in that other State. 2. Where income in respect of personal activities exercised by an entertainer or a sportsperson in his/ her capacity as such accrues not to the entertainer or sportsperson himself/herself but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15 be taxed in the Contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th a business carried on by a Contracting State or a political subdivision or a local authority thereof. ARTICLE 20 STUDENTS 1. A student who is or was a resident of one of the Contracting States immediately before visiting the other Contracting State and who is present in that other Contracting State solely for the purpose of his education or training shall besides grants, loans and scholarships be exempt from tax in that other State on: (a) payments made to him by persons residing outside that other State for the purposes of his maintenance, education or training; and (b) remuneration which he derives from an employment which he exercises in the other Contracting State if the employment is directly related to his studies. 2. The benefits of this Article shall extend only for such period of time as may be reasonable or customarily required to complete the education or training undertaken, but in no event shall any individual have the benefits of this Article, for more than six consecutive years from the date of his first arrival in that other State. ARTICLE 21 PROFESSORS, TEACHERS AND RESEARCHERS 1. A professor, teacher or research scholar who is or was a resident of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e following paragraphs of this Article. 2. In Myanmar: (a) Where a resident of Myanmar derives income which, in accordance with the provisions of this Agreement, may be taxed in India, Myanmar shall allow as a deduction from the tax on the income of that resident, an amount equal to the tax paid in India Such deduction shall not, however, exceed that portion of the tax as computed before the deduction is given, which is attributable, as the case may be, to the income which may be taxed in India. (b) Where in accordance with any provision of the Agreement, income derived by a resident of Myanmar is exempt from tax in Myanmar, Myanmar may nevertheless, in calculating the amount of tax on the remaining income of such resident, take into account the exempted income. 3. In India: (a) Where a resident of India derives income which, in accordance with the provisions of this Agreement, may be taxed in Myanmar, India shall allow as a deduction from the tax on the income of that resident, an amount equal to the tax paid in Myanmar. Such deduction shall not, however, exceed that portion of the tax as computed before the deduction is given, which is attributable as the case may be, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more residents of the other Contracting State, shall not be subjected in the first-mentioned State to any taxation or any requirements connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of the first-mentioned State are or may be subjected. 5. The provisions of this Article shall apply to the taxes covered by this Agreement. ARTICLE 25 MUTUAL AGREEMENT PROCEDURE 1. Where a person considers that the actions of one or both of the Contracting States result or will result for him in taxation not in accordance with the provisions of this Agreement, he may, irrespective of the remedies provided by the domestic laws of those States, present his case to the competent authority of the Contracting State of which he is a resident or, if his case comes under paragraph 1 of Article 24, to that of the Contracting State of which he is a national. The case must be presented within three years from the first notification of the action resulting in taxation not in accordance with the provisions of the Agreement. 2. The competent authority shall endeavour, if the objection appears to it to be justified and if it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... administrative measures at variance with the laws and administrative practice of that or of the other Contracting State; (b) to supply information (including documents or authenticated copies of the documents) 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 (ordre 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) in respect of taxes withheld at source, to income derived on or after the first day of April in the fiscal year following the year in which the notice is given; (ii) in respect of other taxes on income, to taxes chargeable for any fiscal year beginning on or after the first day of April of the next fiscal year following the year in which the notice is given ; (b) in India: in respect of income derived in any fiscal year on or after the first day of April next following the calendar year in which the notice is given. IN WITNESS whereof the undersigned, duly authorized thereto, have signed this Agreement. DONE in duplicate at New Delhi on the 2nd day of April in the year 2008 each, in the Hindi, Myanmar and English Languages, all texts being equally authentic. In case of divergence of interpretation, the English text shall prevail. FOR THE GOVERNMENT OF THE REPUBLIC OF INDIA (P.K. Mishra) Chairman Central Board of Direct Taxes Department of Revenue Ministry of Finance FOR THE GOVERNMENT OF THE UNION OF MYANMAR (Kyi Thein) Ambassador Extraordinary and Plenipotentiary of Union of Myanmar to the Republic of India PROTOCOL At the moment of signing the Agreement th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he source State. 5. It is understood that if the domestic law of a Contracting State is more beneficial to a resident of the other Contracting State than the provisions of this Agreement, then the provisions of the domestic law of the first-mentioned State shall apply to the extent they are more beneficial to such a resident. 6. When Myanmar introduces a provision in its domestic law regarding assistance in collection of taxes to other treaty partners or agrees to extend such assistance to any other treaty partner, then the competent authorities of the two Contracting States shall extend assistance in the collection of taxes to each other. In witness whereof, the undersigned, being duly authorized by their respective Governments, have signed this Protocol. DONE in duplicate at New Delhi on the 2nd day of April in the year 2008 each in the Hindi, Myanmar and English Languages, all texts being equally authentic. In case of divergence of interpretation, the English text shall prevail. FOR THE GOVERNMENT OF THE REPUBLIC OF INDIA (P.K. Mishra) Chairman Central Board of Direct Taxes Department of Revenue Ministry of Finance FOR THE GOVERNMENT OF THE UNION OF MYANMAR (Kyi The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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