“Section 9(1)(i)”

Section References (mined)Section 9Section 9(1)(i)279 judgments

The decision most relied on for Section 9(1)(i) is Engineering Analysis Centre of Excellence (P) Ltd. v. CIT (432 ITR 471), cited in 914 judgments on BharatTax.

Leading authorities on Section 9(1)(i)

Engineering Analysis Centre of Excellence (P) Ltd. v. CIT

432 ITR 471 · 2021 · Supreme Court

914

citing judgments

Payments for the supply or use of computer software, where there is no transfer of copyright but only a right to use the copyrighted product, are generally considered business profits and not 'royalty' or 'fees for technical services' under the Income Tax Act, 1961 or relevant DTAAs. This principle also applies to transponder fees, which are not taxable as royalty.

CIT v. Samsung Electronics Ltd.

345 ITR 494 · 2012 · High Court

461

citing judgments

Payments by Indian residents to non-resident foreign software suppliers for software are considered royalty, constituting income deemed to accrue in India under section 9(1)(v), thereby requiring tax deduction at source under section 195.

Ishikawajima Harima Heavy Industries Ltd. v. DIT

288 ITR 408 · 2007 · Supreme Court

394

citing judgments

Income from offshore supply of goods and services is not taxable in India if the entire transaction, including transfer of ownership and payments, occurs outside India.

CIT v. De Beers India Minerals (P.) Ltd.

346 ITR 467 · 2012 · High Court

371

citing judgments

For fees for technical or consultancy services to 'make available' technical knowledge or know-how under a DTAA, the service must transmit such knowledge, allowing the recipient to derive an enduring benefit and utilize it independently in the future.

Asia Satellite Telecommunications Co. Ltd. v. DIT

332 ITR 340 · 2011 · High Court

359

citing judgments

Payments for the use of equipment, such as satellite transponders, do not constitute 'royalty' under Section 9(1)(vi) of the Income-tax Act, 1961, or under applicable tax treaties, especially when there is no transfer of the right to use a process or underlying technology.

DIT v. New Skies Satellite BV

382 ITR 114 · 2016 · High Court

325

citing judgments

An amendment to the Income Tax Act, such as the Finance Act, 2012 amendment to Section 9(1)(vi) defining royalty, does not automatically override or alter the definition of 'royalty' as provided in a Double Taxation Avoidance Agreement (DTAA) unless the DTAA itself is bilaterally amended. The definition of royalty in a DTAA remains unaffected by unilateral changes to domestic law.

DIT v. Nokia Networks OY

358 ITR 259 · 2013 · High Court

276

citing judgments

Payments for the supply of software along with telecom equipment are not in the nature of royalty if they are for the use of a copyrighted article, not the copyright itself. Such payments are not taxable in India in the absence of a Permanent Establishment (PE).

CIT v. Toshoku Ltd.

125 ITR 525 · 1980 · Supreme Court

270

citing judgments

A non-resident commission agent is not chargeable to tax in India on commission income if no business operations are carried out in India. Consequently, no TDS is required under Section 195 on such payments.

Judgments citing Section 9(1)(i)

Hindustan Epc Company Ltd., New Delhi vs. ACIT, Circle- 11(2), New Delhi

In the result, the appeal of the assessee is partly allowed

ITA 7112/DEL/2019[2016-17]Status: DisposedITAT Delhi20 Oct 2023AY 2016-17

Bench: Shri C. N. Prasad & Shri M. Balaganeshhindustan Epc Company Ltd, Vs. Acit, 239, Okhla Industrial Estate, Circle-11(2), Phase-Iii, New Delhi New Delhi (Appellant) (Respondent) Pan: Aafcm9606E Acit, Vs. Hindustan Epc Company Ltd, Circle-11(2), 239, Okhla Industrial Estate, New Delhi Phase-Iii, New Delhi (Appellant) (Respondent) Pan: Aafcm9606E

For Appellant: Sh. Satyen Sethi, AdvFor Respondent: Shri Vijay Vasanta, CIT DR

Section 143(3)Section 14A

assessment. 6.2. The assessee submitted before the ld. CIT(A) that in terms of section 5(2) read with section 9(1) of the Act, commission to a foreign agent paid outside India for services rendered abroad was not chargeable to tax in India at all and hence ... with export commission. In this regard, we hold that this is completely irrelevant consideration as the provisions of section 5(2) read with section 9(1) of the Act read with Explanation 2 thereon, does not make any distinction between import commission and export commission and that both stand

ACIT, Circle- 11(2), New Delhi vs. Hindustan Epc Company Ltd., New Delhi

In the result, the appeal of the assessee is partly allowed

ITA 6985/DEL/2019[2016-17]Status: DisposedITAT Delhi20 Oct 2023AY 2016-17

For Appellant: Sh. Satyen Sethi, AdvFor Respondent: Shri Vijay Vasanta, CIT DR

Section 143(3)Section 14A

Rga International Reinsurance Company Designated Authority Compqny, Mumbai vs. DCIT (International Taxation) 4(1) (1), Mumbai

In the result, appeal filed by the assessee is allowed

ITA 803/MUM/2022[2018-19]Status: DisposedITAT Mumbai06 Sept 2023AY 2018-19

Bench: Shri S. Rifaur Rahman, Hon'Ble & Shri Rahul Chaudhary, Hon'Ble

Section 143(2)Section 144C(5)

directions of the Hon'ble DRP, erred in concluding that the Appellant has a business connection in India as per the provisions of section 9(1)(1) of the Act on the basis that the Appellant is earning income from India on a regular and continuous basis 2. Ground ... view of this, there is a clear cut business connection and the income of the Assessee is taxable in India in terms of section 9(1)(i) of the Act.  Further, the assessee is having a regular flow of income from India which further strength the Page

Amit Jain, Delhi vs. ACIT, Circle International Taxation 2(1)(2), New Delhi

In the result, the appeal of the assessee is allowed

ITA 1941/DEL/2022[2018-19]Status: DisposedITAT Delhi23 Aug 2023AY 2018-19

Bench: the lower authorities and is forming part of the records. It is not in dispute that the services were rendered by the assessee only in Netherlands during the year under consideration. However, the assessee was also sent on deputation to India on behalf of Akzo Netherlands. For administrative convenience, the Amit Jain vs. ACIT Page 3 of 9

Section 139(1)Section 143(3)Section 144C(1)Section 192Section 9Section 90

deemed to accrue or arise in India u/s 9(1)(i) of the Act. At the outset, we find the provisions of section 9(1)(i) of the Act per se is not applicable for income from salary. As per section 9(1)(ii) of the Act, income shall ... forms part of the service contract of employment , shall be regarded as income earned in India. Hence as per the aforesaid explanation in section 9(1), salary payment can be said to be earned in India only if the corresponding services are rendered in India. Since the services are rendered

Citicorp Trustee Company Ltd As Trustee for Fccb Issued by Jindal Saw Ltd, Mumbai vs. Deputy Commissioner of Income Tax (Int Taxation)-2(1)(1), Mumbai

In the result, the appeal of the assessee is allowed

ITA 784/MUM/2023[2014-2015]Status: DisposedITAT Mumbai21 Aug 2023AY 2014-2015

Bench: Shri Aby T. Varkey, Jm & Shri S. Rifaur Rahman, Am आयकर अपील सं/ I.T.A. No. 784/Mum/2023 (निर्धारण वर्ा / Assessment Year: 2014-15) Citicorp Trustee Company बिधम/ Dcit (International Ltd. As Trustee For Fccb Taxation)-2(1)(1) Vs. Issued By Jindal Saw Ltd. 17Th Floor, 1713, Air India Citigroup Centre, Canada Building, Nariman Point, Square, Canary Wharf Mumbai-400021. London E14 5Lb United Kingdom. स्थधयी लेखध सं./जीआइआर सं./Pan/Gir No. : Aaecc0452D (अपीलार्थी /Appellant) .. (प्रत्यर्थी / Respondent) Assessee By: Shri Anish Thackar/Nikhil Tiwari/Lekh Mehta Revenue By: Shri Amit Kumar Soni (Sr. Dr) सुनवाई की तारीख / Date Of Hearing: 19/07/2023 घोषणा की तारीख /Date Of Pronouncement: 21/08/2023 आदेश / O R D E R Per Aby T. Varkey, Jm: This Is An Appeal Preferred By The Assessee Against The Order Of The Assessing Officer (Ao) Dated 19.01.2023 Passed U/S 143(3) R.W.S. 144C(13) R.W.S 147 Of The Income Tax Act, 1961 (Hereinafter “The Act”). 2. At The Outset, The Ld. Ar Of The Assessee Brought To Our Notice The Ground No. 2 Wherein The Assessee Has Raised The Legal Issue Against The Action Of The Ao To Have Reopened The Assessment U/S 147 Of The Act Without Satisfying The Essential Condition Prescribed Under The Act; & Therefore Contends That The Action Of The Ao Is Ab-Initio-Void. 3. In Order To Examine The Legal Issue Raised By The Assessee, It Is Necessary To Look Into The Reasons Recorded By Ao To Reopen The Assessment Which Is Reproduced As Under: -

For Appellant: Shri Anish Thackar/NikhilFor Respondent: Shri Amit Kumar Soni (Sr. DR)

Section 143(3)Section 147Section 201(1)Section 5(2)(b)Section 6

authorities, resulting into income accruing and arising to the nonresident under section 5(2) of the Act for which the deeming provisions of section 9(1) are not applicable. 3. The Ld. CIT(A) erred in law and on facts in holding that both sections 5(2) and 9(1 ... erred in law and on facts in holding that the interest paid by the appellant on its FCCBs is covered by exception to Section 9(1)(v)(b) of the Act and 7 A.Y. 2014-15 Citicorp Trustee Company Ltd. consequently it falls outside the ambit of deemed income arising

Piyush Mathur, Banglore vs. ACIT Circle Int. Tax 2(2)(1), New Delhi

In the result, appeal of the assessee is treated as allowed for statistical purposes

ITA 351/DEL/2023[2020-21]Status: DisposedITAT Delhi04 Aug 2023AY 2020-21

Bench: Shri G.S. Pannu, Hon’Ble & Ms. Astha Chandraasstt. Year: 2020-21

For Appellant: Shri Piyush Kumar MathurFor Respondent: Shri Vizay B. Vasanta, CIT- DR

Section 10Section 143(3)Section 144C(1)Section 144C(2)(b)Section 17(2)Section 9(1)(i)

therefore held that benefit of section 10(10CC) is not available to the assessee. 6. The Ld. AO applied the provisions of section 9(1)(i) of the Act to the assessee’s case and observed, inter alia that salary paid to the assessee by Indian Employer viz M/s. ONGC ... passport and bank passbook were submitted before the Ld. AO. No income is deemed to accrue or arise to him in India under section 9(1)(i) as alleged by the Ld. AO. He, therefore, urged that the impugned addition be deleted. As to the claim of exemption under section

Fedex Express International B.V., Mumbai vs. ACIT( International Taxation)-2(3)(1), Mumbai

In the result, both the appeals of the assessee are allowed

ITA 2464/MUM/2022[2018-19]Status: DisposedITAT Mumbai31 Jul 2023AY 2018-19

Section 143(3)Section 244ASection 9(1)(i)

1. and invalid b. Attribution of profits in respect of 1. 2. outbound and inbound shipments under (1.1. - 1.3- (2.1. - 2.3) Section 9(1)(i) of ) the Act and Article 7 of the Double Taxation Avoidance Agreement between India and Netherlands ('Treaty') c. Arbitrarily assigning ad hoc ratios ... international transactions with the Indian AES. 14. However, the AO concluded the assessment, alleging that the assessee has a business connection under section 9(1)(1) of the Act and a DAPE in terms of Article 5 of the India-Netherlands DTAA . The AO contended that FETSCS and TNT were

Fedex Express International B.V., Mumbai vs. ACIT( International Taxation)-2(3)(1), Mumbai

In the result, both the appeals of the assessee are allowed

ITA 2463/MUM/2022[2019-20]Status: DisposedITAT Mumbai31 Jul 2023AY 2019-20

Section 143(3)Section 244ASection 9(1)(i)

Atomstroyexport, Mumbai vs. Dycit (It)Circle-1(1)(2), Mumbai

In the result, both the appeals of the assessee are allowed

ITA 523/MUM/2022[2018-2019]Status: DisposedITAT Mumbai19 Jul 2023AY 2018-2019

Section 143(3)Section 234ASection 234BSection 44B

Offshore Supply contracts were 'carried and concluded-"outside India and hence no income therefrom deemed to accrue or arise in India as per section 9(1) and DTAA provisions and accordingly, not chargeable to tax. The receipts thereof do not form part of receipts for the purpose of computational provisions ... section 44BBB. Explanation-4 could not overcome the limitation imposed by Explanation-l(a) to section 9(1)(i) and hence, the impugned income do not form part of business receipts for computation of income u/s 44BBB of the Act. We held so." M/s. ATOMSTROYEXPORT 12. This judgment has been

Atomstroyexport, Mumbai vs. DCIT (It)Circle -1(1)(2), Mumbai

In the result, both the appeals of the assessee are allowed

ITA 522/MUM/2022[2019-20]Status: DisposedITAT Mumbai19 Jul 2023AY 2019-20

Section 143(3)Section 234ASection 234BSection 44B

Assistant Commissioner of Income Tax (It)-4(2)(2), Mumbai vs. M/S Star Cruise Management Ltd, Mumbai

ITA 1296/MUM/2023[2016-2017]Status: DisposedITAT Mumbai10 Jul 2023AY 2016-2017

For Appellant: Shri Madhur AgarwalFor Respondent: Shri Anil Sant

Section 144Section 144C(3)Section 5(2)(a)Section 9(1)(i)

Star Travel (India) Services Pvt Ltd ("SCITSPL") does not constitute an agency PE of the assessee within the meaning of Explanation 2 to section 9(1)(i) of the Act with regard to the business income received by it, especially in view of the fact that there is no DTAA ... Assessee in India; and therefore, no income was liable to tax in India in terms of Section 5(2) and Section 9(1)(i) of the Act. 10.2. We note that the Assessee has also placed on record decisions of the Tribunal dismissing the appeal of the Revenue

Assistant Commissioner of Income Tax (It)-4(2)(2), Mumbai vs. M/S Star Cruise Management Ltd., Mumbai

ITA 1295/MUM/2023[2017-2018]Status: DisposedITAT Mumbai10 Jul 2023AY 2017-2018

For Appellant: Shri Madhur AgarwalFor Respondent: Shri Anil Sant

Section 144Section 144C(3)Section 5(2)(a)Section 9(1)(i)

Sis Live, New Delhi vs. ACIT, Circle-3(1)(2), International Taxation, New Delhi

In the result, the appeal is partly allowed

ITA 2146/DEL/2022[2019-20]Status: DisposedITAT Delhi30 May 2023AY 2019-20

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Deyassessment Year: 2018-19 & Assessment Year: 2019-20 Sis Live, Vs. Assistant Commissioner Of 4Th Floor, Statesman House Income Tax, Building, Barakhamba Road, Circle-3(1)(2), International Connaught Place, Taxation, New Delhi New Delhi Pan :Abrfs4787L (Appellant) (Respondent)

Section 143(3)Section 144CSection 144C(13)Section 9

such expenditure against the interest income earned from SIS Holdings and ultimately claimed loss. Referring to section 5(2) and section 9(1)(i) of the Act, the Assessing Officer held, since, the assessee had no business activity or operation in India, it cannot be said that

Sis Live, New Delhi vs. ACIT Circle-3(1)(2), International Taxation, New Delhi

In the result, the appeal is partly allowed

ITA 2145/DEL/2022[2018-19]Status: DisposedITAT Delhi30 May 2023AY 2018-19

Section 143(3)Section 144CSection 144C(13)Section 9

Board of Control for Cricket in India, Mumbai vs. DCIT Cent. Cir. 6(2), Mumbai

In the result, the appeal by the assessee is allowed

ITA 5493/MUM/2017[2016-17]Status: DisposedITAT Mumbai11 May 2023AY 2016-17

Bench: Shri G.S. Pannu & Shri Sandeep Singh Karhail

For Appellant: S/Shri P.J. Pardiwala a/wFor Respondent: Ms. Surabhi Sharma

Section 195Section 248Section 253

facilitating two teams for participation in the CLT20 Tournament from year to year. Accordingly, the learned CIT(A) held that the provisions section 9(1) of the Act are applicable and the payment is taxable as “income from The Board of Control for Cricket in India ITA no.5492/Mum./2017 ... ./2017 learned Sr. Counsel further submitted that the payment is not attributable to any operations carried out in India for being taxable under section 9(1)(i) r/w Explanation 1(a). As regards DAPE, the learned Sr. Counsel submitted that the burden to establish the fulfilment of conditions provided under

Board of Control for Cricket in India, Mumbai vs. DCIT Cent. Cir. 6(2), Mumbai

In the result, the appeal by the assessee is allowed

ITA 5492/MUM/2017[2016-17]Status: DisposedITAT Mumbai11 May 2023AY 2016-17

Bench: Shri G.S. Pannu & Shri Sandeep Singh Karhail

For Appellant: S/Shri P.J. Pardiwala a/wFor Respondent: Ms. Surabhi Sharma

Section 195Section 248Section 253

ACIT Circle-25(1), New Delhi vs. Red Ice Production Pvt Ltd, New Delhi

In the result, the appeal of the Revenue is dismissed

ITA 8061/DEL/2019[2013-14]Status: DisposedITAT Delhi08 May 2023AY 2013-14

Bench: Shri G.S. Pannu, Hon’Ble & Ms. Astha Chandraasstt. Year: 2013-14

For Appellant: Shri Sanjay Gupta, CAFor Respondent: Shri Sanjay Kumar, Sr. DR

Section 143(3)Section 195Section 40Section 9Section 9(1)(vii)

treated the payment of Rs. 1,58,85,633/- made outside India as Fee for Technical Services (FTS) as defined under section 9(1)(vii)(b) of the Act. The submissions of the assessee are incorporated in para 4.1 of the appellate order ... foreign service providers thus were not in the nature of fees for Technical Services within the meaning of Explanation 2 to section 9(1)(vii) and the same were not chargeable to tax in India. The assessee, therefore, was not required to deduct tax at source from the payments made

Rga International Reinsurance Company Designated Activity Co, Mumbai vs. Dy CIT (International Taxation)-4(1)(1), Mumbai

In the result, the issue under consideration is remitted back to the file of Assessing Officer for statistical purpose

ITA 1022/MUM/2021[2017-18]Status: DisposedITAT Mumbai02 May 2023AY 2017-18

Bench: Shri Amit Shukla, Hon'Ble & Shri S. Rifaur Rahman, Hon'Blerga International Reinsurance V. Dcit (International Taxation) -4(1)(1) Room No. 172, 17Th Floor Company Designated Activity Air India Building, Nariman Point Company Mumbai – 400 021 C/O. S.R.B.C & Associates Llp 14Th Floor, The Ruby 29 Senapati Bapat Marg Dadar (W), Mumbai – 400028 Pan: Aadcr1226K (Appellant) (Respondent) Assessee Represented By : Shri P.S. Paridiwala & Ms. Jasmin Amalasadvala Department Represented By : Ms. Surabhi Sharma

Section 115BSection 144C(5)Section 9(1)(i)

directions of the Hon'ble DRP. erred in concluding that the Appellant has a business connection in India as per the provisions of section 9(1)(i) of the Act on the basis that the Appellant is earning income from India on a regular and continuous basis 2. Ground ... view of this, there is a clear cut business connection and the income of the Assessee is taxable in India in terms of section 9(1)(i) of the Act.  Further, the assessee is having a regular flow of income from India which further strength the argument that the Assessee

Maan Aluminium Ltd., Pithampur vs. ITO (It & Tp), Bhopal

ITA 6/IND/2020[2015-16]Status: DisposedITAT Indore31 Mar 2023AY 2015-16

Bench: Ms. Suchitra Kamble & Shri B.M. Biyani(Conducted Through Virtual Court) Assessment Year: 2015-16 Maan Aluminium Ltd. Ito (It & Tp), 427, Orbit Mall, Bhopal बनाम/ 4Th Floor, Ab Road, Vs. Indore (Appellant / Assessee) (Respondent / Revenue) Pan: Aapcm 0088 C / Tan: Bplm 07361 E Assessee By Shri Sudhir Padliya, Ar Revenue By Shri Ashish Porwal, Sr. Dr Date Of Hearing 06.01.2023 Date Of Pronouncement 31.03.2023

Section 195Section 201(1)Section 9Section 90(4)

order of first-appeal). Therefore, the agent is not an “independent agent” and benefit of proviso to Explanation 2 to section 9(1)(i) is also not available. 6. Finally, Ld. CIT(A) concluded twin-aspects, namely (i) There was an agent of non-resident in India ... residents (Paper-Book Page No. 5); therefore he is an agent of “independent status” and benefit of Proviso to Explanation 2 to section 9(1)(i) applies. 8. Ld. AR also relied upon CBDT Circular No. 23 dated 23.07.1969 to convince that the situation does not give rise to taxable

Quasar Media Private Limited, New Delhi vs. ACIT Circle-20(2), New Delhi

Appeal are allowed and the remaining grounds being consequential in nature follow the event

ITA 7088/DEL/2019[2015-16]Status: DisposedITAT Delhi10 Mar 2023AY 2015-16

Bench: Sh. Kul Bharatdr. B. R. R. Kumar

For Appellant: Sh. Anil Bhalla, CAFor Respondent: Sh. Sanjay Kumar, Sr. DR

Section 195Section 40Section 5Section 9(1)Section 9(1)(b)Section 9(1)(i)Section 9(1)(vi)

America and Dimension Data Cloud Solutions Inc, which companies are tax resident of USA by wrongly considering the said payments as Royalty under section 9(1)(vi) read with section 5 of the Income Tax Act,1961 and also incorrectly interpreting Article 12 of Double Tax Avoidance Agreement (DTAA) with ... royalty payments taxable in India based upon NEM RAZA proposition put forward by Assessing Officer that after its introduction Explanation 5 to section 9(1)(i) of the Act overrides the provision of Article 12 of India USA DTAA and therefore Article 12 as appearing in the treaty stands diluted