TaxTMI 
TaxTMI 
Mutual Agreement Procedure (MAP) Guidance
X X X X Extracts X X X X
X X X X Extracts X X X X
....he competent authority(ies) ('CA' or 'CAs' hereinafter)of India till the resolution of the issue of taxation not in accordance with the treaty and the processes to be followed by the field authorities to implement the outcome of the MAP. The new rule is applicable w.e.f 6th May, 2020 and, accordingly, applies to all MAP cases pending with the CAs of India as on 6th May, 2020. 3. Though erstwhile rules 44G and 44H were in existence for a number of years, detailed information regarding MAP processes and guidance on issues related to such processes were not available in a comprehensive and consolidated manner. The Action 14 final report on "Making Dispute Resolution More Effective", of the Base Erosion and Profit Shifting ('BEPS', hereinafter) project of the G-20 and OECD countries, had recommended that all countries that implement the BEPS package of measures must publish comprehensive MAP guidance. 4. In view of the above, the Board has decided to issue this MAP guidance for the benefit of taxpayers, tax practitioners, tax authorities, and CAs of India and of treaty partners. 5. The MAP guidance is presented in the following four parts: Part A: In....
X X X X Extracts X X X X
X X X X Extracts X X X X
....icing adjustments • Existence of a Permanent Establishment • Attribution of profits to a Permanent Establishment • Characterisation or re-characterisation of an income or expense II. India's Tax Treaties or DTAAs India has a large network of tax treaties, almost all of which contain a MAP Article based on the provisions of Article 25 of the UN/OECD Model Tax Convention. These tax treaties (read with section 90 or 90A of the Income-tax Act, 1961) constitute the legal basis for taxpayers to apply for a MAP and for CAs to discuss and negotiate a MAP case with the endeavour of finding a resolution to the dispute. It is important for taxpayers to refer to the text of the relevant tax treaty itself to understand the conditions for applying for MAP under that tax treaty. India's tax treaties are available at www.incometaxindia.gov.in All the DTAAs entered into by India, which contain a MAP Article as mentioned above, require that a taxpayer of either treaty partner approaches the CA of its country of residence to request for a MAP if the tax authorities of the other treaty partner make an adjustment or take an action that results or ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the Tax Authority of the Treaty Partner not in accordance with the agreement? If so, the reasons thereof; and l) Details of remedy sought in the other country or specified territory, if any, with documentary evidence. Form No. 34F also requires information about the name of the country or specified territory, the action of the tax authorities of which have aggrieved the Applicant. In item (k) above, the Applicant should provide the facts of the case; the analysis of issue(s) that are sought to be resolved under the MAP; and the reasons why the action taken by the tax authorities are not in accordance with the relevant DTAAs. In addition to the above information and details, Form No. 34F requires the following documents to be furnished at the time of making the application: • Copy of notice or order giving rise to the action not in accordance with the relevant DTAAs; • Any document(s) as support for considering the order/action of the tax authorities of the treaty partners to be not in accordance with the relevant DTAAs; • Any document(s) as evidence of remedy sought in the other country or specified territory; and â€....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... not acceptable by the CA of India having jurisdiction over the case, she shall write to the CA of the relevant treaty partner informing her about the reasons for which the MAP application cannot be accepted and request the latter to send her views/comments on the same (notification and bilateral consultation). Once the CAs of both treaty partners have exchanged views and come to a common understanding, the decision on the MAP application shall be communicated by the CA of India having jurisdiction over the case to the Indian taxpayer who had made the MAP application. As has been indicated above, once a MAP application is accepted, the CAs shall exchange views. In most cases, the views shall be communicated through position papers. Once a position paper is received from the other CA, the CA of India having jurisdiction over the case would examine the same and come to a negotiating position. She may also provide her own written comments to the other CA or ask for further clarification from her. After exchange of positions and comments, both the CAs would try and negotiate a resolution to the dispute at hand. They may meet in person or negotiate remotely through teleconference, vi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed from the "Start Date" of a MAP case. Since, presently, most of the MAP cases before the CAs of India arise from a MAP application made by a non-resident taxpayer before the CAs of other countries or specified territories (treaty partners), the "Start Date" is determined by the other CAs in accordance with the MAP Statistics Reporting Framework. At times, the CAs of India receive intimation of MAP cases from the CAs of the treaty partners much beyond the "Start Date". This results in delaying the endeavour to resolve such MAP cases. India is fully committed to implement the outcomes of each and every MAP case. It is the endeavour of India to implement each MAP outcome expeditiously. The process and timeframes to implement such outcomes are contained in rule 44G of the Income-tax Rules, 1962. The rule, inter-alia, provides the following: • How to apply for a MAP; • Whom to apply to for a MAP; • The role of the CAs of India in making an endeavour to resolve tax disputes under the MAP; • Timeframes and processes after the resolution of a MAP case; and • Role of Indian taxpayer and Indian tax authorities after the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h non-resident entity anticipating an event of double taxation or taxation not in accordance with the relevant DTAA. However, such action being purely under the domestic law and the order under section 201 not being an order determining any tax on income, the MAP discussion will be taken up only after the assessment order is passed in the case of the non-resident taxpayer, and such non-resident taxpayer considers that the assessment order results or would result in taxation not in accordance with the relevant DTAA. There are a few circumstances where India would provide access to MAP but the CAs of India would not negotiate any other outcome than what has already been achieved in such circumstances. The circumstances are the following: a) Unilateral Advance Pricing Agreements - Where an Indian or foreign taxpayer enters into a unilateral Advance Pricing Agreement ('UAPA', hereinafter) with the Central Board of Direct Taxes (CBDT), the CAs of the other countries or specified territories may accept MAP applications from their taxpayers in respect of such UAPAs if any decision of the tax authorities of such other countries disturbs the income declared in the return....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te from the orders of the ITAT for the relevant year where the dispute is decided on merits. In such cases the CA of India would request the CAs of the treaty partners to provide correlative relief, if required. Such MAP cases shall be closed as having been resolved by a domestic remedy. However, if the order of the ITAT does not resolve the disputes but only sets them aside to be adjudicated afresh, then access to MAP would be provided again after the fresh adjudication by tax authorities, if requested for by the relevant taxpayers. II. Denial of Access to MAP The CAs of India can deny access to MAP in some situations or in certain particular cases. Such situations and particular cases are as follows: a) Delayed MAP Applications - If the taxpayers make a MAP application to the CAs of India or to the CAs of the treaty partners after the expiry of the time period specified in the Article relating to MAP(corresponding to Article 25(1) second sentence of the OECD Model Tax Convention) of the relevant DTAAs, the CAs of India would not provide access to MAP. This time period in most treaties is within three years from the first notification of the order/action of tax auth....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Normally a time period of 90 days for providing the additional information/documents should be provided by the CAs of India to facilitate the process, which can be extended by the CAs depending on the facts and circumstances of the case. d) Income-tax Settlement Commission - Sections 245A to 245L in Chapter XIX-A of the Income-tax Act, 1961 provide for the constitution of a commission called the Income-tax Settlement Commission ('ITSC', hereinafter) for the settlement of cases. The ITSC is an independent statutory dispute resolution body. The process of settlement of disputes by ITSC is independent from the audit and examination functions of tax authorities. It is a voluntary process and a taxpayer has to apply for a settlement of its disputes. Once the application is accepted, the ITSC examines all aspects of the dispute and comes out with a settlement order. If the ITSC issues a settlement order, the same is binding on both the taxpayer and the tax authorities. The CAs of India shall not provide access to MAP to an Indian taxpayer who has already obtained a settlement order from the ITSC and such order covers the issues that are sought to be included in the MAP a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the CAs of India shall refuse to admit a case under MAP where the CAs of the treaty partners have accepted a MAP application by a taxpayer of their country or specified territory who (or its associated enterprise in India or the relevant party to the transaction on which the advance ruling is sought) has already obtained an advance ruling from the AAR and such advance ruling covers the issues that have been included in the MAP application accepted by the CAs of the treaty partners. The CAs of India shall also not provide access to MAP to an Indian taxpayer or admit a case under MAP where the CAs of the treaty partners have accepted a MAP application by a taxpayer of their country or specified territory, if either of such taxpayer's application (or that ofthe relevant party to the transaction on which the advance ruling is sought) has been admitted by the AAR and the question(s)/issue(s) specified in the application is under examination by the AAR. In addition to the situations and particular cases at (a) to (e) above, it is clarified that no MAP access shall be provided in respect of issues that are purely governed by India's domestic law and arise due to the i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tum of income and, accordingly, those would not be affected by the resolution under MAP. IV. Secondary Adjustments India has a provision to make secondary adjustments in respect of cases where the primary transfer pricing adjustment has been made in financial year 2016- 17 or thereafter. Thus, the CAs of India would be obligated to make such secondary adjustments part of the MAP resolution in respect of cases pertaining to financial year 2016-17 or thereafter. V. Bilateral & Multilateral APAs India has a well-established APA Program that includes unilateral, bilateral and multilateral APAs. In respect of issues for which a bilateral or multilateral APA application has already been filed and accepted, MAP applications on the same issues for the same years should not be made by the taxpayers. If such MAP applications are made either before the CAs of India or the CAs of treaty partners, the CAs of India shall consult with their counterparts and not admit such MAP applications. However, if a bilateral or multilateral APA application fails to result in an Agreement for any reason, then a MAP application on the same issue and for the same years can be made either before the ....