Double Taxation Avoidance Agreement (DTAA) is a bilateral treaty between India and another country that provides relief from double taxation of the same income in both jurisdictions, typically through tax credits, exemptions, or reduced withholding tax rates. Under Indian law, the Central Government is empowered under Section 90 of the Income Tax Act, 1961 to enter into DTAAs with foreign governments, and under Section 90A for agreements with specified associations in foreign territories, with India currently having DTAAs with over 90 countries.
Legal definition
Section 90 of the Income Tax Act, 1961 provides:
Section 90(1): The Central Government may enter into an agreement with the Government of any country outside India or specified territory outside India — (a) for the granting of relief in respect of — (i) income on which have been paid both income-tax under this Act and income-tax in that country or specified territory, as the case may be, or (ii) income-tax chargeable under this Act and under the corresponding law in force in that country or specified territory...
Section 90(2): Where the Central Government has entered into an agreement with the Government of any country outside India... then, in relation to the assessee to whom such agreement applies, the provisions of this Act shall apply to the extent they are more beneficial to that assessee.
Key DTAA mechanisms:
| Method | How it works | Example |
|---|---|---|
| Tax credit | Tax paid in source country is credited against tax liability in residence country | India-US DTAA — US tax credit for Indian taxes paid on Indian income |
| Exemption | Income taxed in one country is exempt in the other | India-Mauritius DTAA (pre-2017) — capital gains exempt in India |
| Reduced withholding rate | DTAA prescribes lower TDS rate than domestic law | India-UK DTAA — royalty at 15% vs 20% domestic rate |
Tie-breaker rules for residency (Article 4 of most DTAAs): When a person is resident in both countries under their respective domestic laws, DTAAs provide sequential tie-breaker tests: permanent home, centre of vital interests, habitual abode, nationality, and finally mutual agreement procedure (MAP).
Tax Residency Certificate (TRC): Section 90(4) mandates that any assessee claiming DTAA benefits must obtain a Tax Residency Certificate from the government of the country of residence, confirming the assessee's tax residency in that country.
Multilateral Instrument (MLI): India signed the OECD Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI) in 2017. The MLI modifies existing DTAAs by inserting anti-abuse provisions, including the Principal Purpose Test (PPT) and limitation of benefits (LOB) clauses, without requiring bilateral renegotiation of each treaty.
How courts have interpreted this term
Union of India v. Azadi Bachao Andolan [(2003) 263 ITR 706 (SC)]
The Supreme Court upheld the validity of the India-Mauritius DTAA, which permitted Mauritius-resident entities investing in India to claim capital gains exemption by virtue of their Mauritius tax residency certificate. The Court held that treaty shopping (routing investments through a favourable DTAA jurisdiction) is not inherently illegal — DTAAs are negotiated instruments, and if the treaty permits a benefit based on residency certification, the Revenue cannot deny it by looking behind the certificate. This landmark decision stood as the law on treaty shopping until modified by the 2017 India-Mauritius protocol and the MLI.
Vodafone International Holdings BV v. Union of India [(2012) 6 SCC 613]
Though primarily a domestic tax case, the Supreme Court examined the DTAA framework and held that cross-border transactions must be examined in their entirety. The Court observed that DTAA benefits are available to genuine economic actors and that the "substance over form" principle applies to treaty interpretation. The case triggered significant amendments to Section 9(1)(i) regarding indirect transfers.
Steria (India) Ltd. v. CIT [(2016) 386 ITR 390 (Delhi HC)]
The Delhi High Court held that "fees for technical services" under the India-France DTAA must be interpreted in accordance with the DTAA definition, not the broader domestic law definition under Section 9(1)(vii). The Court applied the "make available" clause in the DTAA — technical services are taxable only if the service provider makes technical knowledge available to the recipient, enabling the recipient to apply the technology independently. This interpretation significantly narrows the taxable base for technical service fees compared to domestic law.
Why this matters
DTAAs are central to international taxation in India and affect every cross-border economic activity — from NRIs earning income in India to multinational corporations operating through Indian subsidiaries, from foreign portfolio investors receiving dividends to Indian IT companies receiving payments for services rendered abroad. The choice between applying domestic tax rates and DTAA rates can result in significant tax savings.
For NRIs, DTAAs are particularly important for determining the withholding tax rate on income earned in India. Interest, dividends, royalties, and fees for technical services are commonly subject to withholding tax, and the DTAA rate is often lower than the domestic rate. An NRI receiving interest income from Indian bonds may face a 20% domestic TDS rate but only 10-15% under the applicable DTAA.
Practitioners must be aware of the post-MLI landscape. The MLI has inserted the Principal Purpose Test (PPT) into most of India's DTAAs — if one of the principal purposes of an arrangement is to obtain a treaty benefit, and granting the benefit would be contrary to the object and purpose of the treaty, the benefit can be denied. This significantly modifies the Azadi Bachao Andolan position and makes substance and commercial rationale crucial for claiming treaty benefits.
Related terms
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Related anti-avoidance:
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Frequently asked questions
How does one claim DTAA benefits in India?
To claim DTAA benefits, the assessee must: (1) obtain a Tax Residency Certificate (TRC) from the country of residence under Section 90(4); (2) furnish Form 10F providing specified particulars if the TRC does not contain all required details; (3) claim the benefit in the income tax return or during TDS deduction. The payer deducting TDS can apply the DTAA rate (if lower) upon receiving the TRC and Form 10F from the non-resident payee.
Does India have a DTAA with all countries?
No. India has DTAAs with approximately 95 countries, including all major economies. For countries without a DTAA, Section 91 provides unilateral relief — allowing a deduction from Indian tax for tax paid in the foreign country on doubly-taxed income. The relief under Section 91 is limited to the Indian tax rate or the foreign tax rate, whichever is lower.
What is the impact of the Multilateral Instrument (MLI) on India's DTAAs?
The MLI modifies India's existing DTAAs by inserting anti-abuse provisions without requiring bilateral renegotiation. Key modifications include: the Principal Purpose Test (PPT) — denying treaty benefits if obtaining the benefit was a principal purpose of the arrangement; minimum holding period conditions for reduced dividend withholding rates; and adjustments to permanent establishment definitions. India has notified most of its DTAAs as Covered Tax Agreements under the MLI.
Can a person be tax resident in two countries simultaneously?
Yes. Different countries have different tests for tax residency (days of stay, domicile, citizenship, etc.), and a person can meet the residency criteria of two countries simultaneously. In such cases, the DTAA tie-breaker rules (Article 4) determine which country has the primary right to tax. The tests are applied sequentially: permanent home, centre of vital interests, habitual abode, nationality, and finally mutual agreement between the competent authorities.
This entry is part of the Veritect Indian Legal Glossary, a comprehensive reference of Indian legal terminology grounded in statutory text and judicial interpretation.
Last updated: 2026-03-27. Veritect provides this content for informational purposes and does not constitute legal advice.