Namibia

AGREEMENT BETWEEN
INDIA AND NAMIBIA.

Agreement
between the Government of the Republic of India and the Government of the
Republic of Namibia for the avoidance of double taxation and prevention of
fiscal evasion with respect to taxes on income and capital gains

Notification
No. G. S. R. 196(E), dated 8th March, 1999.

Whereas
the convention stated in the Schedule below, between the Government of the
Republic of India and the Government of the Republic of Namibia for the
avoidance of double taxation and the prevention of fiscal evasion with respect
to taxes on income and capital gains has entered into force on the 22nd
January, 1999, on the notifications by both the Contracting States to each
other of the completion of the procedures as required by Article 29 of the said
Convention:

Now,
therefore, in exercise of the powers conferred by section 90 of the Income-tax
Act, 1961 (45 of 1961), the Central Government hereby directs that all the
provisions of the Convention stated in the Schedule shall be given effect to in
the Union of India.

SCHEDULE

CONVENTION
BETWEEN THE GOVERNMENT OF THE REPUBLIC OF INDIA AND THE GOVERNMENT OF THE
REPUBLIC OF NAMIBIA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF
FISCAL EVASION WITH RESPECT TO TAXES ON INCOME AND CAPITAL GAINS

The
Government of the Republic of India and the Government of the Republic of
Namibia, desiring to conclude a Convention for the avoidance of double taxation
and the prevention of fiscal evasion with respect to taxes on income and
capital gains, have agreed as follows:

Article
1

Personal
Scope

This
Convention shall apply to persons who are residents of one or both of the
Contracting States.

Article
2

Taxes
Covered

1.     The taxes to which
this Convention shall apply are:

a.     in Namibia:

                     
i.       

the
income-tax;

                    
ii.       
the
non-resident shareholders’ tax; and

                   
iii.       
the
petroleum income-tax; (hereinafter referred to as “Namibian tax”);

a.     

b.    in India:

income-tax
(including any surcharge thereon). (hereinafter referred to as “Indian
tax”).

1.      

2.     This Convention shall
apply also to any identical or substantially similar taxes which are imposed
after the date of signature of the Convention in addition to, or in place of,
the existing taxes referred to in paragraph 1. The competent authorities of the
Contracting States shall notify each other of any substantial changes which
have been made in their respective taxation laws, and if it seems desirable to
amend any article of this Convention without affecting the general principles
thereof, the necessary amendments may be made by mutual consent.

Article
3

GENERAL
DEFINITIONS

1.     For the purposes of
this Convention, unless the context otherwise requires:

a.     the term
“Namibia” means the Republic of Namibia and when used in a
geographical sense, includes the territorial sea as well as the exclusive
economic zone and the continental shelf, over which Namibia exercises sovereign
rights in accordance with its internal law and subject to international law,
concerning the exploration and exploitation of the natural resources of the
sea-bed and its sub-soil and the superjacent waters;

b.    the term
“India” means the territory of India and includes 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 UN Convention on the
Law of the Sea, 1982;

c.     the terms “a
Contracting State”, and “the other Contracting State” means
Namibia or India, as the context requires;

d.    the term
“person” includes an individual, a company, a body of persons 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 which is treated as
a body corporate for tax purposes;

f.     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 Contracting State;

g.    the term
“international traffic” means any transport by ship or aircraft
operated by an enterprise which has its place of effective management in a
Contracting State, except when the ship or aircraft is operated solely between
places in the other Contracting State;

h.     the term
“national” means:

                     
i.       
any
individual possessing the citizenship of a Contracting State;

                    
ii.       

any
legal person, partnership and association deriving its status as such from the
law in force in a Contracting State;

a.       

b.       

c.       

d.       

e.       

f.       

g.       

h.       

i.      the term
“competent authority” means:

                     
i.       
in
the case of Namibia, the Permanent Secretary in the Ministry of Finance who is
the Chief Executive Officer and Administrator of Namibian Tax Laws or his or
her authorised representative;

                    
ii.       

in
the case of India, the Central Government in the Ministry of Finance
(Department of Revenue) or its authorised representative;

a.       

b.       

c.       

d.       

e.       

f.       

g.       

h.       

i.       

j.      the term
“tax” means Indian tax or Namibian tax, as the context requires, but
shall not include any interest or any amount which is payable in respect of any
default or omission in relation to the taxes to which this Convention applies
or which represents a penalty imposed relating to those taxes.

1.      

2.     As regards the
application of the Convention by a Contracting State, any term not defined
therein shall, unless the context otherwise requires, have the meaning which it
has under the law of that State concerning the taxes to which this Convention
applies.

Article
4

Resident

1.     For the purposes of
this Convention, the term “resident of a Contracting State” means any
individual who is ordinarily resident, or has his or her domicile in that State
and any company or other body of persons which has its place of effective management
or incorporation in that State.

2.     Where by reason of
the provisions of paragraph 1, an individual is a resident of both Contracting
States, then his or her status shall be determined as follows:

a.     he or she shall be
deemed to be a resident of the State in which he or she has a permanent home
available to him or her; if he or she has a permanent home available to him or
her in both States, he or she shall be deemed to be a resident of the State
with which his or her personal and economic relations are closer (centre of
vital interests);

b.    if the State in which
he or she has his or her centre of vital interests cannot be determined, or if
he or she has not a permanent home available to him or her in either State, he
or she shall be deemed to be a resident of the State in which he or she has a
habitual abode;

c.     if he or she has a
habitual abode in both States or in neither of them, he or she shall be deemed
to be a resident of the State of which he or she is a national;

d.    if he or she is a
national of both States or of neither of them, the competent authorities of the
Contracting States shall settle the question by mutual agreement.

1.      

2.      

3.     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 of the
State in which its place of effective management is situated. In case of doubt
the competent authorities of the Contracting States shall settle the question
by mutual agreement.

Article
5

PERMANENT
ESTABLISHMENT

1.     For the purposes of
this Convention, the term “permanent establishment” means a fixed
place of business through which the business of an enterprise is wholly or
partly carried on.

2.     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 mine, an oil or gas
well, a quarry or any other place of extraction of natural resources;

g.    an installation or
structure used for the exploration of natural resources, provided that the
installation or structure continues for a period of not less than six months;

h.     a warehouse, in
relation to a person providing storage facilities for others; and

i.      in the case of
Namibia, a guest farm or other operation of a similar nature;

1.      

2.      

3.     The term

“permanent establishment” likewise encompasses:

a.     a building site, a
construction, assembly or installation project or supervisory activities in
connection therewith, but only where such site, project or activity continues
for a period of more than six months; or

b.    the furnishing of
services, excluding those referred to in Article 14, by an enterprise of a
Contracting State through employees or other personnel engaged in the other
Contracting State, provided that such activities continue for the same project
or a connected project for a period or periods aggregating more than six months
within any twelve months period.

1.      

2.      

3.      

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 or the occasional delivery 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, display or occasional delivery;

c.     the maintenance of a
stock of goods or merchandise belonging to the enterprises 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 information, for the enterprise;

e.     the maintenance of a
fixed place of business solely for the purpose of carrying on, for the
enterprise, any other activity of a preparatory or auxiliary character;

f.     the maintenance of a
fixed place of business solely for any combination of activities mentioned in
sub-paragraphs (a) to (e), provided that the overall activity of the fixed
place of business resulting from this combination is of a preparatory or
auxiliary character.

1.      

2.      

3.      

4.      

5.     Notwithstanding the
provisions of paragraphs 1, and 6, where a person other than an agent of an
independent status to whom paragraph 6 applies is acting in a Contracting State
on behalf of an enterprise of the other Contracting State, that enterprise shall
be deemed to have a permanent establishment in the first-mentioned Contracting
State in respect of any activities which that person undertakes for the
enterprise, if such person-

a.     has and habitually
exercises in that State, an authority to conclude contracts in the name of the
enterprise, unless the activities of such person are limited to those mentioned
in paragraph 4 which, if exercised through a fixed place of business, would not
make this fixed place of business a permanent establishment under the
provisions of that paragraph; or

b.    has no such
authority, but nevertheless maintains habitually in the first-mentioned
Contracting State a stock of goods or merchandise from which he or she
regularly delivers goods or merchandise on behalf of the enterprise.

1.      

2.      

3.      

4.      

5.      

6.     An enterprise of a
Contracting State shall not be deemed to have a permanent establishment in the
other Contracting State merely because it carries on business in that other State
through a broker, general commission agent or any other agent of an independent
status, provided that such 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 or she will not be considered an
agent of an independent status within the meaning of this paragraph.

7.     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 (including income from
agriculture or forestry) situated in the other Contracting State may be also
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 apply, usufruct of
immovable property and rights to variable or fixed payments as consideration
for the working of, or the right to work, mineral deposits, sources and other
natural resources. Ships, boats and aircrafts shall not be regarded as
immovable property.

3.     The provisions of
paragraph 1 shall apply to income derived from the direct use, letting, or use
in any other form of immovable property.

4.     The provisions of
paragraphs 1 and 5 shall also apply to the income’ from immovable property of
an enterprise and to income from immovable property used for the performance of
independent personal services.

5.     Where the ownership
of shares or other rights in a company or legal person entitles the owner to
the enjoyment of immovable property situated in a Contracting State and held by
that company or legal person, income derived by the owner from the direct use,
letting or use in any other form of his or her right of enjoyment may be taxed
in that State. The provisions of this paragraph shall apply notwithstanding the
provisions of Article 7 or 15.

Article
7

BUSINESS
PROFITS

1.     The profits of an
enterprise of a Contracting State shall be taxable only in that State unless
the enterprise carries on business in the other Contracting State through a
permanent establishment situated therein. If the enterprise carries on business
as aforesaid, the profits of the enterprise may be taxed in the other State but
only so much of them as is attributable to that permanent establishment.

2.     Subject to the
provisions of paragraph 3, where an enterprise of a Contracting State carries
on business in the other Contracting State through a permanent establishment
situated therein, there shall, in each Contracting State, be attributed to that
permanent establishment the pro fits which it might be expected to make if it
were a distinct and separate enterprise engaged in the same or similar
activities under the same or similar conditions and dealing wholly
independently with the enterprise of which it is a permanent establishment.

3.     In determination of
the profits of a permanent establishment, there shall be allowed as deductions
expenses which are incurred for the purposes of the business of permanent
establishment, including executive and general administrative expenses, so
incurred, whether in the State in which the permanent establishment is situated
or elsewhere in accordance with the provisions of and subject to the
limitations of the laws of that State. However, no such deduction shall be
allowed in respect of amounts, if any, paid (otherwise than towards
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 or other rights, or
by way of commission, 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 permanent establishment. Likewise, no account shall be taken, in the
determination of the profits of a permanent establishment, for amounts charged
(otherwise than towards 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 or other rights, or by way of commission 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.     In so far 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 that Contracting State from determining the profits to be taxed by
such an apportionment as may be customary. The method of apportionment adopted
shall, however, be such that the result shall be in accordance with the
principles contained in this Article.

5.     No profits shall be
attributed to a permanent establishment by reason of the mere purchase by that
permanent establishment of goods or merchandise for the enterprise.

6.     For the purposes of
the preceding paragraphs, the profits to be attributed to the permanent
establishment shall be determined by the same method year-by year unless there
is good reason to the contrary.

7.     Where profits include
items of income which are dealt with separately in other articles of this
Convention, then the provisions of those articles shall not be affected by the
provisions of this article.

Article
8

SHIPPING
AND AIR TRANSPORT

1.     Profits from the
operation or charter of ships or aircraft in international traffic and the
rental of containers and related equipment which is incidental to the operation
of ships or aircraft in international traffic shall be taxable only in the
Contracting State in which the place of effective management of the enterprise
is situated.

2.     If the place of
effective management of a shipping enterprise is aboard a ship or boat, then it
shall be deemed to be situated in the Contracting State in which the home
harbour of the ship or boat is situated, or, if there is no such home harbour,
in the Contracting State of which the operator of the ship or boat is resident.

3.     For the purposes of
this Article, interest on funds connected with the operation of ships or
aircraft in international traffic shall be regarded as profits derived from the
operation of such ships or aircraft and the provisions of Article 11 shall not
apply in relation to such interest.

4.     The provisions of
paragraph 1 shall also apply to profits from the participation in a pool, a
joint business or an international operating agency.

Article
9

ASSOCIATED
ENTERPRISES

1.     Where:

a.     an enterprise of a
Contracting State participates directly or indirectly in the management,
control or capital of 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.

1.      

2.     Where a Contracting
State includes in the profits of an enterprise of that 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 charged therein on those
profits. In determining such adjustment, due regard shall be had to the other
provisions of this Convention and the competent authorities of the Contracting
States shall if necessary consult each other.

Article
10

DIVIDENDS

1.     Dividends paid by a
company which is a resident of a Contracting State to a resident of the other
Contracting State may be taxed in that other State.

2.     However, such
dividends may also be taxed in the Contracting State of which the company
paying the dividends is a resident and according to the laws of that State, but
if the recipient is the beneficial owner of the dividends the tax so charged
shall not exceed 10 per cent. of the gross amount of the dividends.

This
paragraph shall not affect the taxation of the company in respect of the
profits out of which the dividends are paid.

1.      

2.      

3.     The term

“dividends” as used in this article means income from shares of all
kinds or other rights, not being debt-claims, participating in profits, as well
as income from other corporate rights which is subjected to the same taxation
treatment as income from shares by the laws of the State of which the company
making the distribution is a resident.

4.     The provisions of
paragraphs 1 and 2 shall not apply if the beneficial owner of the dividends,
being a resident of a Contracting State, carries on business in the other
Contracting State of which the company paying the dividends is a resident,
through a permanent establishment situated therein, or performs in that other
State independent personal services from a fixed base situated therein, and the
holding in respect of which the dividends are paid is effectively connected
with such permanent establishment or fixed base. In such case the provisions of
Article 7 or 15, as the case may be, shall apply.

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 recipient is the beneficial owner
of the interest the tax so charged shall not exceed 10 per cent. of the gross
amount of the interest.

3.     Interest arising in a
Contracting State shall be exempt from tax in that State provided 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.    such agency or
instrumentality of the Government of the other Contracting State as may be
agreed in writing between the competent authorities of both the Contracting
States.

1.      

2.      

3.      

4.     The term
“interest” as used in this article means income from debt-claims of
every kind, whether or not secured by mortgage and whether or not carrying a
right to participate in the debtor’s profit, and in particular income, from
Government securities, and income from bonds or debentures, including premiums
and prizes attaching to such securities, bonds or debentures. Penalty charges
for late payment shall not be regarded as interest for the purpose of this
article.

5.     The provisions of
paragraphs 1 2 and shall not apply if the beneficial owner of the interest,
being a resident of a Contracting State, carries on business in the other
Contracting State in which the interest arises, through a permanent
establishment situated therein, or performs in that other State independent
personal services from a fixed base situated therein, and the debt-claim in
respect of which the interest is paid is effectively connected with such
permanent establishment or fixed base. In such a case the provisions of Article
7 or 15 as the case may be, shall apply.

6.     Interest shall be
deemed to arise in a Contracting State when the payer is that State itself, a
political sub-division, a local authority or a resident of that State. Where,
however, the person paying the interest, whether he or she is a resident of a
Contracting State or not, has in a Contracting State a permanent establishment
or a fixed base in connection with which the indebtedness on which the interest
is paid was incurred, and such interest is borne by such permanent establishment
or fixed base, then such interest shall be deemed to arise in the State in
which the permanent establishment or fixed base is situated.

7.     Where by reason of a
special relationship between the payer and the beneficial owner or between both
of them and some other person, the amount of the interest, having regard to the
debt-claim for which it is paid, exceeds the amount which would have been
agreed upon by the payer and the beneficial owner in the absence of such
relationship, the provisions of this article shall apply only to the
last-mentioned amount. In such case the excess part of the payments shall
remain taxable according to the laws of each Contracting State, due regard
being had to the other provisions of this Convention.

Article
12

ROYALTIES

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 recipient is the beneficial
owner of the royalties, 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 and
films or tapes used for radio or television broadcasting, any patent, trade
mark, design or model, computer programme, plan, secret formula or process, or
for the use of or the right to use industrial, commercial or scientific
equipment involving a transfer of know-how or for information concerning
industrial, commercial or scientific experience.

4.     The provisions of
paragraphs 1 2 and 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 royalties arise, through a permanent
establishment situated therein, or performs in that other State independent
personal services from a fixed base situated therein, and the right of property
in respect of which the royalties are paid is effectively connected with such
permanent establishment or fixed base. In such case the provisions of Article 7
or Article 15, as the case may be, shall apply.

5.     Royalties shall be
deemed to arise in a Contracting State when the payer is that State itself, a
political sub-division, a local authority or a resident of that State. Where,
however, the person paying the royalties, whether he or she is a resident of a
Contracting State or not, has in a Contracting State a permanent establishment
or a fixed base in connection with which the liability to pay the royalties was
incurred, and such royalties are borne by such permanent establishment or fixed
base, then such royalties shall be deemed to arise in the State in which the
permanent establishment or fixed base is situated.

6.     Where by reason of a
special relationship between the payer and the beneficial owner or between both
of them and some other person, the amount of royalties having regard to the
use, right or information for which they are paid, exceeds the amount which
would have been agreed upon by the payer and the beneficial owner in the
absence of such relationship, the provisions of this article shall apply only
to the last mentioned amount. In such case, the excess part of the payments shall
remain taxable according to the laws of each Contracting State, due regard
being had to the other provisions of this Convention.

Article
13

CAPITAL
GAINS

1.     Gains derived by a
resident of a Contracting State from the alienation of immovable property referred
to in Article 6 and situated in the other Contracting State, or from the
alienation of shares in a company the assets of which consist principally of
such property, may also be taxed in that other State.

2.     Gains from the
alienation of movable property forming part of the business property of a
permanent establishment which an enterprise of a Contracting State has in the
other Contracting State or of movable property pertaining to a fixed base
available to a resident of a Contracting State in the other Contracting 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 also 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 in which the place of effective
management of the enterprise is situated.

4.     Gains from the
alienation of shares or similar rights being shares in a company, the assets of
which consist principally of immovable property situated in a Contracting
State, may also be taxed in that State. Gains from the alienation of an
interest in a partnership, trust or estate, the property of which consists
principally of immovable property situated in a Contracting State, may also be
taxed in that State.

5.     Gains derived by a
resident of a Contracting State from the sale, exchange or other disposition,
directly or indirectly, of shares other than those mentioned in paragraph 4, or
similar rights in a company which is a resident of the other Contracting State
may also be taxed in that other State.

6.     Gains from the
alienation of any property other than that referred to hereinabove, shall be
taxable only in the Contracting State of which the alienator is a resident.

Article
14

FEES
FOR TECHNICAL SERVICES

1.     Fees for technical
services arising in a Contracting State which are derived by a resident of the
other Contracting State may be taxed in that other State.

2.     However, such fees
for technical services may also be taxed in the Contracting State in which they
arise, and according to the laws of that State; but if the recipient is the
beneficial owner of the fees for the technical services, the tax so charged
shall not exceed 10 per cent. of the gross amount of such fees.

3.     The term “fees
for technical services” as used in this article means payment of any kind
to any person, other than to an employee of the person making the payments, in
consideration for any services of a technical, managerial or consultancy
nature.

4.     The provisions of
paragraphs 1 and 4 shall not apply if the beneficial owner of the fees for
technical services, being a resident of a Contracting State carries on business
in the other Contracting State in which the fees for technical services arise
through a permanent establishment situated therein, or performs in that other
State independent personal services, and the fees for the technical services
are effectively connected with such permanent establishment or such services.
In such case, the provisions of Article 7 or 15, as the case may be, shall
apply.

5.     Fees for technical
services shall be deemed to arise in a Contracting State when the payer is that
State itself, a political sub-division, a local authority or a statutory body
thereof, or a resident of that State. Where, however, the person paying the
fees for technical services, whether he is a resident of a Contracting State or
not, has in a Contracting State a permanent establishment in connection with
which the obligation to pay the fees for technical services was incurred, and
such fees for technical services are borne by that permanent establishment,
then such fees for technical services shall be deemed to arise in the
Contracting State in which the permanent establishment is situated.

6.     Where, by reason of a
special relationship between the payer and the recipient or between both of
them and some other person, the amount of the fees paid for technical services,
exceeds for whatever reason, the amount which would have been agreed upon by
the payer and the beneficial owner in the absence of such relationship, the
provisions of this article shall apply only to the last-mentioned amount. In
such case, the excess part of the payments shall remain taxable according to
the law of each Contracting State due regard being had to the other provisions
of this Convention.

Article
15

INDEPENDENT
PERSONAL SERVICES

1.     Income derived by an
individual who is a resident of a Contracting State in respect of professional
services or other activities of an independent character shall be taxable only
in that State. Such income may also be taxed in the other Contracting State if:-

a.     the individual has a
fixed base regularly available to him or her in that other State for the
purpose of performing his or her activities, but only so much thereof as is
attributable to that fixed base; or

b.    the individual is
present in that other State for a period or periods exceeding in the aggregate
183 days within any period of 12 months, but only so much thereof as is
attributable to services performed in that State.

1.      

2.     The term

“professional services” includes especially independent scientific,
literary, artistic, educational or teaching activities as well as independent
activities of medical practitioners, lawyers, engineers, architects, dentists
and accountants.

Article
16

DEPENDENT
PERSONAL SERVICES

1.     Subject to the
provisions of Articles 17, 19, 20 and 21 salaries, wages and other similar
remuneration derived by a resident of a Contracting State in respect of an
employment shall be taxable only in that State unless the employment is
exercised in the other Contracting State. If the employment is so exercised,
such remuneration as is derived there from may be taxed in that other State.

2.     Notwithstanding the
provisions of paragraph 1, remuneration derived by a resident of a Contracting
State in respect of an employment exercised in the other Contracting State
shall be taxable only in the first mentioned State if..-

a.     the recipient is
present in the other State for a period or periods not exceeding in the
aggregate 183 days within any period of 12 months and

b.    the remuneration is
paid by, or on behalf of, an employer who is not a resident of the other State;
and

c.     the remuneration is
not borne by a permanent establishment or a fixed base which the employer has
in the other State.

1.      

2.      

3.     Notwithstanding the
preceding provisions of this article, remuneration derived by a resident of a
Contracting State in respect of an employment exercised aboard a ship or
aircraft operated in international traffic may be taxed in the Contracting
State in which the place of effective management of the enterprise is situated.

Article
17

DIRECTORS’
FEES

Directors’
fees and other similar payments derived by a resident of a Contracting State in
his or her 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
18

ARTISTES
AND SPORTSPERSONS

1.     Notwithstanding the
provisions of Articles 15 and 16, income derived by a resident of a Contracting
State as an artiste, such as a theatre, motion picture, radio or television
artiste, or a musician, or as a sportsperson from his or her 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 artiste or a sportsperson in his
or her capacity as such accrues not to the artiste or sportsperson but to another
person, that income may, notwithstanding the provisions of Articles 7, 15 and
16 be taxed in the Contracting State in which the activities of the artiste or
sportsperson are exercised.

3.     Notwithstanding the
provisions of paragraphs 1 and 2, income derived by an artiste or sportsperson
from his or her personal activities as such shall be exempt from tax in the
Contracting State in which these activities are exercised if the activities are
exercised within the framework of a visit which is substantially supported by
the other Contracting State, a political sub-division, a local authority or a
public institution thereof.

Article
19

PENSIONS
AND ANNUITIES

1.     Subject to the
provisions of paragraph 2 of article 20, pensions and other similar
remuneration for past employment or any annuity arising in a Contracting State
and paid to a resident of the other Contracting State, shall be taxable only in
the first mentioned State.

2.     The term

“annuity” means a stated sum payable periodically at stated times
during life or during a specified or ascertainable period of time under an
obligation to make the payments in return for adequate and full consideration
in money or money’s worth.

Article
20

GOVERNMENT
SERVICE

1.      

a.     Remuneration, other
than pension, paid by a Contracting State or a political sub-division or a
local authority thereof to an individual in respect of services rendered to
that State or sub-division or authority shall be taxable only in that State.

b.    However, such
remuneration shall be taxable only in the other Contracting State if the
services are rendered in that other State and the individual is a resident of
that State who

                     
i.       
is
a national of that State; or

                    
ii.       
did
not become a resident of that State solely for the purpose of rendering the
services.

1.      

2.     Any pension paid by,
or out of funds created by, a Contracting State or a political sub-division or
a local authority thereof, to an individual in respect of services rendered to
that State or sub-division or authority shall be taxable only in that State;

3.     The provisions of
Articles 16, 17 and 19 shall apply to remuneration and pensions in respect of
services rendered in connection with a business carried on by a Contracting
State or a political sub-division or a local authority thereof.

Article
21

PROFESSORS,
TEACHERS AND STUDENTS

1.     Remuneration received
for educational or scientific research by an individual who is or was
immediately before visiting a Contracting State a resident of the other
Contracting State and who is present in the first-mentioned State for the
purpose of scientific research or for teaching at an educational institution
shall be exempt from tax in the first-mentioned State. This exemption shall be
granted for a period that shall not exceed two years from the date on which the
teacher or researcher first entered the first-mentioned State for the purposes
of engaging in scientific research or for teaching. This article shall not
apply to income from research if such research is undertaken not in the public
interest but primarily for the private benefit of a specific person or persons.

2.      

a.     Payments which a
student or a business apprentice who is or was immediately before visiting a
Contracting State a resident of the other Contracting State and who is present
in the first-mentioned State solely for the purpose of his education or
training receives for the purpose of his maintenance, education or training
shall not be taxed in that State, provided that such payments arise from
sources outside that State.

b.    Payments which a
student or business apprentice receives as remuneration from employment in the
first-mentioned State shall be exempted from ‘ tax in the first-mentioned
State. This benefit 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 benefit of this
provision for more than three consecutive years from the date of his or her
first arrival in the first mentioned Contracting State.

Article
22

OTHER
INCOME

Items
of income not dealt with in the foregoing articles of this Convention and
derived from sources within a Contracting State shall be taxable only in that
State.

Article
23

ELIMINATION
OF DOUBLE TAXATION

1.    
In
Namibia, double taxation shall be eliminated as follows:

Where
a resident of Namibia derives income or capital gains from India, the amount of
tax on that income or gains payable whether directly or by deduction, in India
in accordance with the provisions of this Convention, may be credited against
the Namibian tax imposed on that resident. The amount of credit, however, shall
not exceed the amount of the Namibian tax on that income or gains computed in
accordance with the taxation laws and regulations of Namibia.

1.      

2.     In India, double
taxation shall be eliminated as follows:-

Where
a resident of India derives income or capital gains from Namibia, which in
accordance with the provisions of this Convention may be taxed in Namibia, then
India shall allow as a deduction from the tax on the income of that resident an
amount equal to the tax on income or capital gains paid in Namibia whether
directly or by deduction.

Article
24

LIMITATION
OF BENEFITS

1.     If, in accordance
with the provisions of this Convention, the right of India to tax income is
limited and according to the Namibian tax laws the income is regarded as income
from foreign sources and, therefore, exempted from Namibian tax, India may tax
such income as if this Convention did not exist.

2.     If, in accordance
with the provisions of this Convention, the right of Namibia to tax income from
Namibian sources or deemed to be from Namibian sources is limited and if such
income is in accordance with the Indian tax laws not taxed in India, Namibia
may tax such income as if this Convention did not exist.

Article
25

NON-DISCRIMINATION

1.     Nationals of a
Contracting State shall not be subjected in the other Contracting State, to any
taxation or any requirement connected therewith, which is more burdensome than
the taxation and connected requirements to which nationals of that other State
in the same circumstances are or may be subjected. This provision shall,
notwithstanding the provisions of Article 1 also apply to persons who are not
residents of one or both of the Contracting States.

2.     The taxation on a
permanent establishment which an enterprise of a Contracting State has in the
other Contracting State shall not be less favourably levied in that other State
than the taxation levied on enterprises of that other State carrying on the
same activities. This provision shall not be construed as preventing a
Contracting State from charging the profits of a permanent establishment which
a company of the other Contracting State has in the first-mentioned State at a
rate of tax which is higher than that imposed on the profits of a similar
company of the first mentioned Contracting State, nor as being in conflict with
the provisions of paragraph 3 of Article 7 of this Convention.

3.     Except where the
provisions of paragraph 1 of Article 9, paragraph 7 of Article 11, paragraph 6
of Article 12, or paragraph 6 of Article 14 apply, interest, royalties, fees
for technical services and other disbursements paid by an enterprise of a
Contracting State to a resident of the other Contracting State shall for the
purpose of determining the taxable profits of such enterprise, be deductible
under the same conditions as if they had been paid to a resident of the
first-mentioned State.

4.     Enterprises of a
Contracting State the capital of which is wholly or partly owned or controlled,
directly or indirectly, by one or more residents of the other Contracting
State, shall not be subjected in the first-mentioned State to any taxation or
any requirement connected therewith which is more burdensome than the taxation
and connected requirements to which other similar enterprises of the
first-mentioned State are or may be subjected.

5.     Nothing in this
Article shall be construed as obliging a Contracting State to grant to
residents of the other Contracting State any personal allowances, reliefs and
reductions for taxation purposes on account of civil status or family
responsibilities which it grants to its own residents.

Article
26

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 or her in taxation not in accordance with the provisions of
this Convention, he or she may, irrespective of the remedies provided by the
domestic laws of those States, present his or her case to the competent
authority of the Contracting State of which he or she is a resident or, if his
or her case comes under Paragraph 1 of Article 25, to that of the Contracting
State of which he or she 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 Convention.

2.     The competent
authority shall endeavour, if the objection appears to it to be justified and
if it is not itself able to arrive at a satisfactory solution, to resolve the
case by mutual agreement with the competent authority of the other Contracting
State with a view to the avoidance of taxation which is not in accordance with
the Convention. Any agreement reached shall be implemented notwithstanding any
time limits in the domestic laws of the Contracting States.

3.     The competent
authorities of the Contracting States shall endeavour to resolve by mutual
agreement any difficulties or doubts arising as to the interpretation or
application of the Convention. They may also consult together for the
elimination of double taxation in cases not provided for in the Convention.

4.     The competent
authorities of the Contracting States may communicate with each other directly
for the purpose of reaching an agreement in the sense of the preceding
paragraphs.

Article
27

EXCHANGE
OF INFORMATION

1.     The competent
authorities of the Contracting States shall exchange such information
(including documents) as are necessary for carrying out the provisions of this
Convention or of the domestic laws of the Contracting States concerning taxes
covered by the Convention, in so far as the taxation thereunder is not contrary
to the Convention, in particular for the prevention of fraud or evasion of such
taxes. The exchange of information if not restricted by article 1. Any
information received 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) involved in the assessment, or collection of, the
enforcement or prosecution in respect of, or the determination of appeals in
relation to, the taxes covered by the Convention. 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.

2.     In no case shall the
provisions of paragraph 1 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.

Article
28

DIPLOMATIC
AGENTS AND CONSULAR OFFICERS

Nothing
in this Convention, shall affect any fiscal privileges accorded to members of
diplomatic or permanent missions or consular posts under the general rules of
international law or under the provisions of special agreements.

Article
29

ENTRY
INTO FORCE

Each
of the Contracting States shall notify to the other through diplomatic
channels, the completion of the procedures required by its laws for the
bringing into force of this Convention. This Convention shall enter into force
on the date of the, later of these notifications and shall thereupon have
effect

a.     in Namibia

             
i.       
in
respect of taxes withheld at source, for amounts paid or created on or after
the first day of March in the calendar year next following that in which this
Convention enters into force; and

            
ii.       
in
respect of other taxes, for any year of assessment beginning on or after the
first day of March in the calendar year next following that in which the
Convention enters into force.

a.     

b.    in India:

             
i.       
in
respect of taxes withheld at source, for amounts paid or credited on or after
the first day of April in the calendar year next following that in which the
Convention enters into force; and

            

ii.       
in
respect of other taxes, for any fiscal year beginning on or after the first day
of April in the calendar year next following that in which the Convention
enters into force;

Article
30

TERMINATION

1.     This Convention shall
remain in force until terminated by one of the Contracting States. Either
Contracting State may terminate the Convention, through diplomatic channels, by
giving notice of termination at least six months before the end of, a y
calendar year beginning after the expiry of five years from the date of, entry
into force of the Convention. In such event, the Convention shall cease to have
effect:-

a.     in Namibia:

             
i.       
in
respect of taxes withheld at source, for amounts paid or credited on or after
the first day of March in the calendar year next following that in which the
notice is given; and

            
ii.       
in
respect of other taxes, for any year of assessment beginning on or after the
first day of March in the calendar year next following that in which the notice
is given;

a.     

b.    in India:

             
i.       
in
respect of taxes withheld at source, for amounts paid or credited on or after
the first day of April in the calendar year next following that in which the
notice is given; and

            
ii.       
in
respect of other taxes, for any fiscal year beginning on or after the first day
of April in the calendar year next following that in which the notice is given;

In
witness whereof

the undersigned, duly authorised thereto, have signed this Convention.

Done in duplicate at New
Delhi, this 15th day of February 1997, in the English and Hindi languages, both
the texts being equally authentic. In case of any divergence in interpretation,
the English text shall prevail.

For
the Government of the

Republic
of Namibia

(Sd.)
Helmut Angula,

Minister
of Agriculture,

and
Rural Development.

For
the Government of the

Republic
of India,

(Sd.)
Inder Kumar Gujral,

Water
Minister of External Affairs.

 

©2020 CV Legal Tech Services LLP

CONTACT US

We're not around right now. But you can send us an email and we'll get back to you, asap.

Sending

Log in with your credentials

or    

Forgot your details?

Create Account