|Updated at:||May 2011|
Whereas the annexed Agreement between the Government of the Republic of India and the Government of the Republic of Mozambique for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income signed in India on the 30th day of September, 2010 shall come into force on the 28th day of February, 2011, being the date of the later of the notifications after completion of the procedures as required by the respective laws for the entry into force of this Agreement, in accordance with Article 30 of the said Agreement.
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 the said Agreement annexed hereto shall be given effect to in the Union of India with effect from the 1st day of April, 2012.
AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF INDIA AND THE GOVERNMENT OF THE REPUBLIC OF MOZAMBIQUE FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
The Government of the Republic of India and the Government of the Republic of Mozambique, 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 sub-divisions or local authorities, irrespective of the manner in which they are levied.
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 amounts of wages or salaries paid by enterprises.
The existing taxes to which the Agreement shall apply are in particular:
(a) in India, the income tax, including any surcharge thereon;
(hereinafter referred to as "Indian tax");
(b) in Mozambique,
- Personal Income-tax (Imposto sobre o Rendimento das Pessoas Singulares-IRPS); and
- Corporate Income-tax (Imposto sobre o Rendimento das Pessoas Colectivas-IRPC)
(hereinafter referred to as " Mozambican tax").
The Agreement shall apply also to any identical or substantially similar taxes that are imposed after the date of signature of the Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any significant changes that have been made in their respective taxation laws.
Article 3: GENERAL DEFINITIONS -- 1. For the purposes of this Agreement, unless the context otherwise requires:
(a) the term "India" means the territory of India and includes the territorial sea and airspace above it, as well as any other maritime zone in which India has sovereign rights, other rights and jurisdiction; according to the Indian law and in accordance with international law, including the U.N. Convention on the Law of the Sea;
(b) the term "Mozambique" refers the territory of the Republic of Mozambique and the respective territorial sea as well as the other areas, including the islands where in accordance with the Mozambican legislation and international law, the Republic of Mozambique has sovereign right relating to research and exploitation of natural resources, the sea-bed, its subsoil and superjacent waters.
(c) the terms "Contracting State" and "the other Contracting State" mean the Republic of India or the Republic of Mozambique, as the context requires;
(d) the term "person" includes an individual, a company, and any other entity which is treated as a taxable unit under the taxation laws in force in the respective Contracting States;
(e) the term "company" means any body corporate or any entity that is treated as a body corporate for tax purposes;
(f) the term "enterprise" applies to the carrying on of any business;
(g) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contractina State;
(h) 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;
(i) the term "competent authority" means:
(i) in India: the Finance Minister, Government of India, or his authorized representative;
(ii) in Mozambique; the Finance Minister, Government of Mozambique, or his authorized representative;
(j) the term "national" means:
(i) any individual possessing the nationality of a Contracting State;
(ii) any legal person, partnership or association deriving its status as such from the laws in force in a Contracting State;
(k) the term "tax" means Indian or Mozambican tax, as the context requires, but shall not include any amount which is payable 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;
(l) The term "fiscal year" means:
(i) in the case of India: the financial year beginning on the 1st day of April;
(ii) in the case of Mozambique the financial year beginning on the 1st day of January or any other financial year as defined by Mozambican Income-tax Acts.
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 and any meaning under the applicable tax laws of that State prevailing over a meaning given to the term under other laws of that State.
Article 4: RESIDENT -- 1. For the purposes of this Agreement, the term "resident of a Contracting State" means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature and also includes that State and any political sub-division or local authority thereof. This term, however, does not include any person who is liable to tax in that State in respect only of income from sources in that State.
Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then his status shall be determined as follows.
(a) he shall be deemed to be a resident only of the State in which he has a permanent home available to him; if he has a permanent home available to him in both States, he shall be deemed to be a resident only of the State with which his personal and economic relations are closer (centre of vital interests);
(b) if the State in which he has his centre of vital interests cannot be determined, or if he has not a permanent home available to him in either State, he shall be deemed to be a resident only of the State in which he has an habitual abode;
(c) if he has an habitual abode in both States or in neither of them, he shall be deemed to be a resident only of the State of which he is a national;
(d) if he is a national of both States or of neither of them, the competent authorities of the Contracting States shall endeavour to settle the question by mutual agreement.
Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident only of the State in which its place of effective management is situated. If the State in which its place of effective management is situated cannot be determined, then the competent authorities of the Contracting States shall endeavour to settle the question by mutual agreement.
Article 5: PERMANENT ESTABLISHMENT -- 1. For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
The term "permanent establishment" includes especially;
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a sales outlet;
(g) a warehouse in relation to a person providing storage facilities for others;
(h) a farm, plantation or other place where agricultural, forestry, plantation or related activities are carried on; and
(i) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources.
The term "Permanent establishment" also encompasses:
(a) A building site or construction, installation or assembly project or supervisory activities in connection therewith, but only if such site, project or activities last more than 12 months.
(b) The furnishing of services, including consultancy services, by an enterprise through employees or other personnel engaged by the enterprise for such purpose, but only where activities of that nature continue (for the same or connected project) within the country for a period or periods aggregating more than 9 months within any 12 month period.
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 enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting...
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