17 Nov 2023 Working Papers
MFN Dilemma in India’s DTAAs Post Concentrix Ruling: A Ticking Time Bomb
WTI Working Paper No. 12/2023 by Saurabh Sharma and Rawat Mukesh
Treaty interpretation has always been an arduous task for courts and scholars alike. The subject becomes even more confounding and contentious in the wake of the imprecise drafting of the terms within certain treaties. In one such instance, India was on the receiving end when the Most-Favour-Nation (MFN) clause in the Convention between the Republic of India and the Kingdom of Netherlands (Member States) for the avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital (Dutch-India DTAA or subject DTAA) was at the core of the adjudication in a Writ Petition namely the Concentrix ruling before Delhi High Court.
Concentrix’s ruling had sent a strong shockwave in the corridors of power when the High Court summarily rejected India’s Income Tax Department submission regarding the interpretation of the MFN clause of Dutch-India DTAA and ruled in favour of the taxpayer. The deconstruction of the condition, as provided for in the MFN clause, regarding the membership of a third state in the Organization of Economic Cooperation and Development either at the time of claiming the MFN benefit by the petitioner or at the time of treaty negotiation was the apple of discord. Many scholars have criticized the Concentrix ruling as the Delhi High Court, on the one hand, buttresses the principle of Common Interpretation for decrypting the given issue and, on the other, relies on the unilateral declaration made by the Directorate-General for Tax Affairs, International Tax Affairs (Netherlands Tax Department). The ruling also falls short of adherence to the principles entrenched within the Vienna Convention on the Law of Treaties (VCLT), 1969.
The ruling has challenged the normative underpinnings of the MFN clause under the Dutch-India DTAA, which has the potential to open the floodgates to litigation against the Department and an impending threat of erosion of India’s tax base due to treaty shopping. It may have spillover effects on many developing countries following source-based tax principles and would warrant a reassessment of their DTAAs with developed nations. The present paper will reflect upon these issues by critically analyzing the Concentrix Ruling, rationalizing its legal consequences, and addressing the concerns it gives rise to by suggesting ways to narrow these legal gaps. It concludes by acknowledging the growing jurisprudence in this domain.