India-Mauritius DTAA Protocol: Analyzing the Impact

[The following guest post is contributed by Aarush Bhatia, who is a 5th year B.A.LL.B (Hons.) student at CNLU, Patna]
Introduction
The protocol[i]dated 10 May 2016 amending the Double Taxation Avoidance Agreement (DTAA) between India and Mauritius is arguably the most significant changerelating to direct taxes in India in recent years, considering that approximately a third of all foreign investments into India are structured through Mauritius. The shift to source based taxation of capital gains from the hitherto residency based taxation is its most important feature.
To summarize, capital gains arising on sale of shares of an Indian company by a Mauritian resident shall be taxable in India (where the source of income lies) as against the earlier position of taxability in Mauritius (based on the residency of the seller). Since the amended protocol refers to shares, both equity as well as preference should be covered. The government has however, mitigated the immediate impact of the protocol on investorsby grandfathering all investments made through Mauritius in shares of Indian companies until 31 March 2017. The protocol provides for a relaxation in respect of capital gains arising to Mauritius residents for shares acquired on or after 1 April 2017 and sold before 1 April 2019, i.e. the transition period. The tax rate on any such gains shall be limited to 50% of the domestic tax rate in India, subject to a limitation of benefits (LOB) clause. The LOB clause states that the benefit of the reduced tax rate shall only be available to such Mauritius resident who is:
(a) not a shell/conduit company; and
(b) satisfies the main purpose and bonafide business test.
It provides that a Mauritius resident shall be deemed to be a shell/conduit company if its total expenditure on operations in Mauritius is less than INR 2,700,000 (approximately 40,000 US Dollars) in the 12 months immediately preceding the alienation of shares. The capital gains tax shall be levied at its full rate only after 1 April 2019.
Impact Analysis
While the manner in which the protocol is sought to be brought into effect is venerable, a more detailed analysis is required in order to fully understand its ramifications on foreign investors. Some of the protocol’s latent ambiguities and wider impact have been scrutinized in this post.
1.         Taxation of Hybrid Instruments
The press release is silent about hybrid instruments like compulsory convertible debentures and futures and options transactions. For instance, foreign investors invest into Indian companies through convertible instruments, with the most common being compulsorily convertible debentures. If such instruments are converted after 1 April 2017, can it be said that the shares are acquired after 1 April 2017 and accordingly taxed in India? It needs to be seen whether any benefit can be obtained from the recently introduced Rule 8AA of the Income-tax Rules, 1962 (which provides that the period of holding shall include, the period for which debenture is held prior to conversion) for determining the date of acquisition of shares.[ii] This issue needs to be clarified under  the text of the protocol as and when it is released by the Central Board of Direct Taxes (CBDT).
2.         Impact On Other Beneficial DTAAs
The protocol has a contagion effect on other DTAAs as well. The position on capital gains under Article 6 of the India-Singapore DTAA is co-terminus with the benefits available under erstwhile provisions on capital gains contained in the treaty with Mauritius. Consequently, with the amendment in India- Mauritius DTAA, alienation of shares of an Indian Company by a Singapore Resident after 1 April 2017 may not necessarily be entitled to obtain the benefits of the existing provision on capital gains as the beneficial provisions under the India-Mauritius DTAA would have terminated on such date. However, clarity is required with regard to grandfathering and transition period provisions.[iii]Further, India has asked the Netherlands to resume negotiations on amending their bilateral tax treaty as the government extends its efforts to plug loopholes in such accords to curb misuse. The Dutch tax treaty, which allows exemption from capital gains and a lower rate of tax on dividends, has led to the proliferation of holding company structures.[iv]While Cyprus is the only other nation whose treaty presently offers capital gains tax exemption to investors, it had been a notified non-cooperative jurisdiction since 2013 for failure to share adequate data on tax evaders.  The government has now got Cyprus to similarly amend the India-Cyprus DTAA. According to the new agreement, Cyprus investors’ capital gains on investments made in Indian companies after March 31, 2017 can be taxed in India. These provisional agreements are awaiting Cabinet approval.
It is speculated that Cyprus has agreed to give India the right to tax capital gains similar to the provision in the revised India-Mauritius tax treaty subject to being removed from the blacklist.
3.         Indirect Transfers
While the direct transfer of Indian company shares by a Mauritius resident after 1April 2017 shall be taxable in India, indirect transfers may still remain out of the Indian domestic tax net. To illustrate, in a structure where there are two Mauritius companies say M Co 1 and M Co 2 wherein M Co 1 holds shares of M Co 2 which in turn holds Indian company shares and derives substantial value from India. In such a situation transfer of shares of M Co 2 by M Co 1 leading to an indirect transfer of Indian company shares may still not be taxable in India.[v]
4.         Group Reorganizations
A clarification would also be required regarding application of grandfathering in case of shares allotted to a Mauritius resident pursuant to a merger or demerger in lieu of shares held in the merging or the demerged entity which were acquired before 1 April 2017.[vi]
5.         Most Favoured Nation (MFN) Clause
The lowering of withholding tax (WHT) on interest to 7.5% under the new protocol has provided succour in favour of debt securities like CCDs. While the WHT of 7.5% is lower than the one provided in other DTAAs like Netherlands (10%), Singapore (15%), UAE (12.5%), etc., most DTAAs entered into by India contain MFN clauses, pursuant to which if India enters into a Convention, Agreement or Protocol with another country which reduces the tax rate of items of income like interest income, then such reduced tax rate shall apply in case of their DTAA as well. It remains to be seen whether the rate of WHT under other DTAAs will automatically reduce as a consequence of the protocol.
6.         Impact on Investment Through Participatory Notes (P-Notes)
P-Notes are derivatives issued by FIIs to investors for the underlying securities invested by the FIIs on the Indian stock markets. Mauritius was the most suitable jurisdiction to invest through P-Notes as several FIIs were setup in Mauritius to avail of the India-Mauritius tax treaty benefits. The P-Notes enjoyed the same capital gains benefit as the FIIs enjoyed at the time of transfer of shares by the FIIs on the Indian securities.This benefit would now cease to be available. While it can be argued that GAAR would have checked treaty abuse anyhow without amending the treaty, it is speculated that the real reason behind this amendment seems to be to restrict investments through P-Notes to prevent round-tripping of money. Withdrawal of the treaty benefits would make this route unattractive for such investors.
Conclusion
The protocol seems to be the final chapter in along drawn tussle between investorsand the revenue. The phased manner of withdrawal of benefits by the government is laudable, especially after its retrospective taxation misadventure post the Vodafone case. While the press release clears the air regarding treaty benefits in no uncertain terms, its collateral impact as analyzed would be clear only after the text of the protocol is releaased. The details of the ‘main purpose’ test and the ‘bona fide purpose’ test stated in the press release too are unclear. There is a possibility that these tests may be subjective and lead to some uncertainty regarding the taxability of investments made during the Interim Period.

Aarush Bhatia




[i]Protocol for amendment of the Convention for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and capital gains between India and Mauritius available at http://incometaxindia.gov.in/Lists/Press%20Releases/Attachments/468/Press-release-Indo-Mauritius-10-05-2016.pdf
[ii]Sahil Aggarwal, Protocol to India-Mauritius DTAA: A move towards avoidance of double non-taxation, available at taxmann.com
[iii] Ibid
[iv]DeepshikhaSikarwar, After Mauritius, now government wants to amend Dutch tax treaty; asks Netherlands to resume talks, (Economic Times, May 30th 2016) available at http://economictimes.indiatimes.com/news/economy/policy/after-mauritius-now-government-wants-to-amend-dutch-tax-treaty-asks-netherlands-to-resume-talks/articleshow/52495938.cms
[v] Amit Bahl, Harsh Biyani and SurbhiBagga, Protocol amending India-Mauritius DTAA: Key changes and their impact, available at taxmann.com
[vi]Ibid

Guest Post: Public Policy of India and the Arbitral Award: Fighting the Unending Battle

(The following guest post is contributed by Amrit Mahal, a fourth-year student at the National University of Juridical Sciences, Kolkata)

The Indian Arbitration and Conciliation Act, 1996 (hereinafter, “Act”) was enacted with a view to bring the Indian arbitration regime in line with international practice. Providing for a limited judicial review of arbitral awards, Section 34(2)(b) and Section 48(2)(b) of the Act permit a court to set aside an arbitral award which is found to be in conflict with the “public policy of India.” The Act however, shirks from defining a clear ambit of public policy, leaving its interpretation to the judiciary. This loophole in the statute has proved to be a recurring worry. The judiciary has adopted an expansive approach to its interpretation, and opened a floodgate of litigation seeking to set aside binding arbitral awards that are in alleged conflict with Indian public policy. Twenty years later, the Arbitration and Conciliation (Amendment) Act, 2015 has put a cap on the width of this expression based on the recommendations of the Law Commission. While the move is a welcome step, the cap seems to be a minimal restriction, still leaving interpretation in the hands of the judiciary.

Navigating the meaning of “public policy”
The Supreme Court first interpreted the expression “public policy” in Renusagar Power Co. v General Electric Co. (hereinafter, “Renusagar”), noting that the enforcement of a foreign award could be refused on the ground of public policy onlyif such enforcement was contrary to a) the fundamental policy of Indian law, b) the interests of India, or c) justice and morality. The most notable case on “public policy” however is Oil & Natural Gas Corporation Ltd v Saw Pipes Limited. The Supreme Court expanded the definition further, observing that in addition to the three grounds listed in Renusagar, the court would also check whether the award has a “patent illegality,” i.e. an illegality that went to the root of the matter. Such a situation could arise where the award was contrary to the substantive laws of India or where the tribunal did not record proper reasons for its decision. The decision had the effect of permitting Indian courts to examine the “root of the matter” and set aside an award where it was unsatisfied with the evaluation or reasoning undertaken by the arbitral tribunal. This created a stepping stone for losing parties to have their case reviewed again on challenge. In this manner, the approach compromised the “final and binding” nature of an award, and rendered arbitration an ineffective system of alternative dispute resolution.

In the absence of a clear meaning of “public policy of India” and a permitted review on merits, a regressive trend had been set for arbitration in India. Not only does such a regime make arbitration an unreliable system, but excessive judicial intervention also erodes the faith of Indian and foreign businesses to commit to business in India. In a regime where arbitration is likely to end in long drawn legal battles that cost time and money, large business commitments are dis-incentivized. Further, an unreliable and unfriendly arbitration regime also impacts India’s ability to become a hub for commercial arbitration, contrasted with the growing legal services market in other Asian hubs like Singapore and Hong Kong.

The Recommendations of the Law Commission
In August 2014, the Law Commission submitted its 246th Report to the Central government recommending several amendments to the Act. The Commission tightened the interpretation of “public policy” under both Section 34 and Section 48, recommending that the award would be in conflict with public policy only if it was induced by fraud or corruption or was opposed to the “fundamental policy of Indian law” or “most basic notions of morality or justice.” It removed “interests of India” as well as “patent illegality” from the definition, both of which permitted judicial overreach.

The Law Commission also observed that under the statute, grounds for setting aside an award and conditions for refusal of enforcement are in pari materia and as such, both domestic and foreign awards are treated the same way. However, the legitimacy of judicial intervention in a purely domestic award is far greater than in cases where the court is examining a foreign award. The Commission thus recommended that Section 34 (2A) be inserted to permit setting aside purely domestic awards on the ground of “patent illegality appearing on the face of the award.” At the same time, to avoid excessive intervention, a proviso was recommended stating that the award would not be rendered defective merely “due to erroneous application of law or by re-appreciation of evidence”. Thus, not only did the Commission prescribe an exhaustive definition of public policy, but also expressly prohibited a plain review on merits.

Separation of patent illegality from the definition of public policy ensures that it is not applicable to any international arbitrations, be it for challenge to the award or for its enforcement. This was a much needed step to regulate judicial intervention and help build trust towards the Indian arbitration regime in the international community. In contrast, the expression “public policy” while formally defined, leaves interpretation of fundamental policy of Indian law and basic notions of justice and morality in the hands of the judiciary. Within a month of the recommendation, the ambiguity of the term “public policy” struck the Law Commission (and the arbitration regime) again.

In September, the Supreme Court in ONGC Ltd. v Western Geco International Ltd.(hereinafter, “Western Geco”) observed that the term “fundamental policy of Indian law” had not been expounded upon. Thus noting, the Court held that the expression would include first, adopting a ‘judicial approach,’ which involves giving a reasonable and non-arbitrary decision, second, adhering to the principles of natural justice, and third, rendering a decision that adheres to a high threshold of reasonableness (Wednesbury principle) i.e. the decision must not be “so perverse or irrational that no reasonable person would have arrived at the same.” To determine whether the decision was reasonable, the Court would necessarily involve itself in the facts of the matter and the evidence available (which was also undertaken in Western Geco). Thus, one again, the Court empowered itself to adjudicate upon whether the reasoning and conclusion of the tribunal is satisfactory.

Responding to this development, the Law Commission published a Supplementary to Report No. 246 in February 2015 detailing this development, and noted that the Western Geco had expanded the Court’s power to review an award on merits. Such a review was “contrary to the object of the Act and international practice.” The Report recommended that an explanation be added to Section 34(2)(b) stating that “fundamental policy of Indian law shall not entail a review on the merits of the dispute.” The Law Commission has thus, attempted a second time to shut the gates to routine challenges to arbitral awards by losing parties. In January 2016, all of these recommendations took form in the Arbitration and Conciliation (Amendment) Act, 2015.

The Battle Continues
Arbitration is sought-after as a private, faster and cheaper means of dispute settlement. However, excessive and unpredictable court intervention has rendered the Indian arbitration regime unreliable. With the amendments in place, the Act has expressly prohibited a review on merits under “fundamental policies of Indian law” or “patent illegality.” While this proves to be a welcome move, there still remains ambiguity in what these expressions entail. The three-pronged approach to the interpretation of fundamental policy of Indian law prescribed in Western Geco leaves little understanding of how judges will determine whether the tribunal applied a “judicial approach” or whether the award is reasonable, especially in light of the prohibition on a review on merits. The Act has ensured a minimal standard of protection by preventing such review, but the building blocks of conflict with public policy remain undefined. Further, another judicial bench may very well alter the approach in Western Geco and expand or narrow down the meaning of the “fundamental policies of Indian law.”

It may also be pertinent to consider how appropriate it is to draw principles of administrative law into arbitration and to what extent it may be permissible. The same question has been answered in the negative in Singapore in Sui Southern Gas Co Ltd v Habibullah Coastal Power Co (Pte) Ltd, where the Wednesbury principle was categorically rejected “as a matter of principle and authority” by the court as a ground for review of awards. The Court observed that there was no appropriate analogy to draw between administrative and arbitral decisions. The former is subject to judicial scrutiny on the Wednesbury principle because it is presumed that when the Parliament gives an administrative decision-maker some discretion, it will be exercised reasonably. In contrast, parties to an arbitration contractually agree to abide by the decision of the tribunal and consent to the finality of the award. Further, even if the award is so unreasonable as to be perverse, it will still be an examination of the error of law or fact. The Court however, cannot sit in appeal on a final and binding arbitral award. Thus, an import of administrative law principles into public policy, and in particular, the Wednesbury principle may be questionable.

The unpredictability of the Indian arbitration regime has been especially cumbersome for international businesses who fail to have any clarity and assurance of dispute settlement here. Excessive judicial intervention reduces trust in arbitration as a system of adjudication within India and abroad, and the legislature must take more responsibility in setting clear outlines to the expressions devised by the judiciary. Until then, the “public policy of India” remains to some extent, a threatening dark sea in Indian arbitration.