NOTIFICATION NO. 10/2015–FT&TR-II
New Delhi, the 02nd February, 2015
Whereas the annexed Protocol amending the Agreement between the Government of the Republic of India and the Government of the Republic of South Africa for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income was signed in Pretoria on the 26th day of July, 2013;
And Whereas, the date of entry into force of the said protocol is the 26th day of November 2014, being thirty days after the date of receipt of later of notifications of completion of the procedures required by the respective laws for bringing the Protocol into force, in accordance with Article II of the said 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 the said Protocol annexed hereto shall be given effect to in the Union of India with effect from the 26th day of November 2014.
PROTOCOL AMENDING THE AGREEMENT
THE GOVERNMENT OF THE REPUBLIC OF INDIA
THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA
THE AVOIDANCE OF DOUBLE TAXATION ANDTHE PREVENTION OF FISCAL
WITH RESPECT TO TAXES ON INCOME,
SIGNED AT NEW DELHI ON 4 DECEMBER 1996
The Government of the Republic of South Africa and the Government of the Republic of India;
DESIRING to amend the Agreement for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, signed at New Delhi on 4 December 1996 (hereinafter referred to as “the Agreement”);
HAVE AGREED AS FOLLOWS:
Article 25 of the Agreement shall be deleted and replaced by the following:
EXCHANGE OF INFORMATION
1. The competent authorities of the Contracting States shall exchange such information as is foreseeably 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 sub-divisions or local authorities, insofar as the taxation thereunder is not contrary to the Agreement. The exchange of information is not restricted by Articles 1 and 2.
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 other purposes under the laws of both States and the competent authority of the supplying State authorises such use.
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 (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 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.”
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.
This Protocol, which shall form an integral part of the Agreement, shall remain in force as long as the Agreement remains in force and shall apply as long as the Agreement itself is applicable.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed and sealed this Protocol in two originals in the English and Hindi languages, both texts being equally authentic. In case of diversion of interpretation the English text shall prevail.
DONE at Pretoria, on this 26th day of July, 2013.