“non-resident”

Chapter I - PreliminarySection 2 - DefinitionsSection 2(30) / Section 6 / ITR Forms3,736 judgments

The decision most relied on for non-resident is GE India Technology Centre Pvt. Ltd. v. CIT (327 ITR 456), cited in 663 judgments on BharatTax.

Leading authorities on non-resident

GE India Technology Centre Pvt. Ltd. v. CIT

327 ITR 456 · 2010 · Supreme Court

663

citing judgments

Tax must be deducted at source from payments made to a non-resident under Section 195 only if such payment is chargeable to tax in India. The Assessing Officer bears the onus to establish that the payments made are indeed chargeable to tax under the Income Tax Act.

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.

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.

DIT v. Infrasoft Ltd.

39 Taxmann.com 88 · 2013 · High Court

269

citing judgments

Payments for the use of copyrighted software, without the transfer of any rights in the underlying copyright itself, do not constitute 'royalty' under the Income-tax Act or tax treaties. Such payments are often treated as business income, taxable only if a permanent establishment exists.

Transmission Corporation of Andhra Pradesh v. CIT

239 ITR 587 · 1999 · Supreme Court

243

citing judgments

The Supreme Court lays down principles for deducting tax at source (TDS) under Section 195 on payments to non-residents, including aspects of income deemed taxable in India and the application of Double Taxation Avoidance Agreements (DTAAs) under Section 90.

ONGC v. CIT

376 ITR 306 · 2015 · Supreme Court

241

citing judgments

Income derived by a non-resident for services related to mineral oil operations, falling under the presumptive taxation regime of Section 44BB, cannot simultaneously be treated as fees for technical services under Section 9(1)(vii). The specific presumptive provisions override the general FTS definition, particularly when DTAA applies.

Judgments citing non-resident

Harini Sampath, Chennai vs. ITO, Intnl Taxn, Ward-2(2), Chennai

The appeal stand allowed

ITA 337/CHNY/2022[2015-16]Status: DisposedITAT Chennai09 Apr 2024AY 2015-16

Bench: Hon’Ble Shri Mahavir Singh, Vp & Hon’Ble Shri Manoj Kumar Aggarwal, Am आयकरअपील सं./ Ita No.337/Chny/2022 (िनधा)रण वष) / Assessment Year: 2015-16) Harini Sampath Ito, बनाम # 7, Anna Avenue, Adyar, International Taxation / Vs. Chennai-600 020. Ward-2(2), Chennai. "थायीलेखासं./जीआइआरसं./Pan/Gir No. Bszps-7280-Q (अपीलाथ"/Appellant) : (" थ" / Respondent) अपीलाथ"कीओरसे/ Appellant By : Shri D. Anand (Advocate)- Ld. Ar " थ"कीओरसे/Respondent By : Shri Ar V Sreenivasan (Addl.Cit)-Ld. Dr सुनवाईकीतारीख/Date Of Final Hearing : 09-04-2024 घोषणाकीतारीख /Date Of Pronouncement : 09-04-2024 आदेश / O R D E R Manoj Kumar Aggarwal () 1. Aforesaid Appeal By Assessee For Assessment Year (Ay) 2015-16 Arises Out An Order Passed By Learned Commissioner Of Income Tax (Appeals)-16, Chennai [Cit(A)] On 11-03-2022 In The Matter Of An Assessment Framed By Ld. Assessing Officer [Ao] U/S 143(3) Of The Act On 28-12-2017. The Sole Grievance Of The Assessee Is Disallowance Of Cost Of Construction Of Building At Adyar While Computing The Capital Gains. Having Heard Rival Submissions, Our Adjudication Would Be As Under. The Assessee Is A Non-Resident & Sold A Property During The Year.

For Appellant: Shri D. Anand (Advocate)- Ld. ARFor Respondent: Shri AR V Sreenivasan (Addl.CIT)-Ld. DR

Section 143(3)

construction of building at Adyar while computing the capital gains. Having heard rival submissions, our adjudication would be as under. The assessee is a non-resident and sold a property during the year. 2. The assessee offered long-term capital gain of Rs.130.47 Lacs on sale of certain building

Karur Vysya Bank Ltd., Karur vs. DCIT Circle 2(1), Trichy

ITA 678/CHNY/2019[2015-16]Status: DisposedITAT Chennai09 Apr 2024AY 2015-16

Bench: Shri V. Durga Rao, Hon’Ble & Shri Manjunatha. G, Hon’Bleआयकरअपीलसं./Ita Nos.: 677 & 678/Chny/2019 िनधा"रणवष" / Assessment Years: 2014-15 & 2015-16 M/S. Karur Vysya Bank Ltd, Deputy Commissioner Of Central Office, V. Income Tax, Erode Road, Circle -2(1), Karur – 639 002. Trichy. [Pan: Aaact-3373-J] (अपीलाथ"/Appellant) (""यथ"/Respondent) आयकरअपीलसं./Ita Nos.: 1343 & 1321/Chny/2019 िनधा"रणवष" / Assessment Years: 2014-15 & 2015-16 Deputy Commissioner Of M/S. Karur Vysya Bank Ltd, Income Tax, V. Central Office, Circle -2(1), Erode Road, Trichy. Karur – 639 002. [Pan: Aaact-3373-J (अपीलाथ"/Appellant) (""यथ"/Respondent) Assessee By : Shri. Anandhan, Ca & Smt. Lalitha, Ca Revenue By : Shri. Nilay Baran Som, Cit सुनवाई क" तारीख/Date Of Hearing : 13.03.2024 घोषणा क" तारीख/Date Of Pronouncement : 09.04.2024 आदेश /O R D E R

For Appellant: Shri. Anandhan, CA and Smt. Lalitha, CAFor Respondent: Shri. Nilay Baran Som, CIT

Section 36(1)(viii)Section 41(1)Section 43B

rule 33 of the Indian Income Tax Rules, 1922 (hereinafter referred to as 'the Rules'), for the purpose of computing the income of a non-resident even if the Income Tax Officer had not done so in the assessment proceedings. But, in ShapoorjiPallonjiMistri [1962] 44 ITR 891, this court, while

M/S. Tega Industries Limited, Kolkata vs. D.C.I.T., Circle-11(1), Kolkata

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

ITA 539/KOL/2022[2018-2019]Status: DisposedITAT Kolkata08 Apr 2024AY 2018-2019

Bench: Dr. Manish Borad, Hon’Ble & Shri Sonjoy Sarma, Hon’Ble

For Appellant: Shri S.P. Chidambaran, AdvocateFor Respondent: Shri Rakesh Kumar Das, CIT, D/R

Section 144C(5)Section 234BSection 234CSection 80JSection 91

sections 92, 92C, 92D and 92E, "international transaction" means a transaction between two or more associated enterprises, either or both of whom are non-residents, in the nature of purchase, sale or lease of tangible or intangible property, or provision of services, or lending or borrowing money, or any other ... enterprise 96[where the enterprise or the associated enterprise or both of them are non- residents irrespective of whether such other person is a non-resident or not]. Explanation.—For the removal of doubts, it is hereby clarified that— (i) the expression "international transaction"98 shall include— (a) the purchase

Ups Jetair Express Private Limited, Mumbai vs. ACIT - 11(1)(2), Mumbai

Appeal are dismissed, the ground no

ITA 1622/MUM/2015[2010-11]Status: DisposedITAT Mumbai08 Apr 2024AY 2010-11

Bench: Shri Vikas Awasthy & Shri Gagan Goyalआ.अ.सं.1622/मुं/2015 (नि.व. 2010-11)

For Appellant: Shri Nitesh Joshi, AdvocateFor Respondent: Shri Rignesh Das, Sr. DR

Section 144C(1)Section 234BSection 32Section 40

Assessing Officer disallowed payment made u/s 40(a)(i) on the presumption that AE was only a conduit/facilitator in this payment made to the non-resident and the Assessee is obliged to withhold tax u/s. 195 r.w.s 9(1)(vii) and Explanation to Section 9(2) of the Act. When ... Assessee filed objection before the DRP, the DRP records that M/s. RMS is a non-resident and it is protected by Article 12(4) of India US DTAA. Payments so made to M/s. RMS are taxable under the head ‘Business Profits', since M/s. RMS does not have PE in India

ACIT-11(1)(2), Mumbai vs. Ups Jetair Express Pvt. Ltd., Mumbai

ITA 1591/MUM/2015[2010-11]Status: DisposedITAT Mumbai08 Apr 2024AY 2010-11

Bench: Shri Vikas Awasthy & Shri Gagan Goyalआ.अ.सं.1622/मुं/2015 (नि.व. 2010-11)

For Appellant: Shri Nitesh Joshi, AdvocateFor Respondent: Shri Rignesh Das, Sr. DR

Section 144C(1)Section 234BSection 32Section 40

आयकर अपीलीय अधिकरण मुंबई पीठ “जे”, मुंबई श्री विकास अवस्थी, न्यायिक सदस्य एवं श्री गगन गोयल, लेखक्कर सदस्य के समक्ष

Sunil Kapoor, New Delhi vs. ACIT Circle Intl. Taxation 2(1)(2), New Delhi

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

ITA 3314/DEL/2023[2021-22]Status: DisposedITAT Delhi08 Apr 2024AY 2021-22

Bench: Shri G.S. Pannu, Hon’Ble & Ms. Astha Chandraasstt. Year: 2021-22 Shri Sunil Kapoor, Vs. Acit K-77, Lajpat Nagar-Ii, Circle Intt. New Delhi-110 024 Taxation 2(1)(2) Pan Aoips5698J New Delhi. (Appellant) (Respondent)

For Appellant: Shri Rajiv Tyagi, AdvocateFor Respondent: Shri Vizay B. Vasanta, CIT-DR

Section 143(3)

called upon to furnish the particulars income beyond a period of 10 years.” 3. In brief, the facts are that the assessee is a non-resident individual. He filed his revised return for AY 2021-22 on 31.03.2022 declaring income of Rs. 24,38,350/-. His case was selected

Herbert Smith Free LLP, New Delhi vs. DCIT, Circle- 2(1)(1), New Delhi

ITA 3994/DEL/2017[2014-15]Status: DisposedITAT Delhi08 Apr 2024AY 2014-15

Bench: Shri G.S. Pannu, Hon’Ble & Ms. Astha Chandraasstt. Year: 2014-15 Herbert Smith Free Llp Vs. Dcit C/O Srbc & Associates Circle 2(1)(1) Llp, Golf View New Delhi. Corporate Tower-B, Sector 42, Gurgaon Haryana Pin 122002 Pan Aaffh0766B (Appellant) (Respondent)

For Appellant: Shri Porus Kaka, Sr. AdvFor Respondent: Shri Vizay B. Vasanta, CIT-DR

Section 143(3)Section 271(1)(c)Section 9(1)(vii)

quashing the penalty proceedings initiated by the learned AO under section 271(1)(c) of the Act.” 3. Briefly stated, the assessee, a Non-Resident LLP, is a firm of Solicitors registered in UK and is engaged in providing legal services to its clients worldwide. It provides legal services

Bhargav Vaddavalli, Hyderabad vs. Income Tax Officer, Ward - 8(3), Hyderabad

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

ITA 155/HYD/2024[2017-2018]Status: DisposedITAT Hyderabad04 Apr 2024AY 2017-2018

Bench: Shri Rama Kanta Panda & Shri K.Narasimha Chary

For Appellant: Shri Kumar Pal Tated, ARFor Respondent: Ms. Sheetal Sarin, DR

Section 271F

outset, learned AR submitted that the assessee could not prosecute the proceedings before the Revenue authorities diligently, because he being a non-resident, was travelling on the business work and mostly out of India, he did not receive many of the notices and the notices he received were sent

Shell Information Technology International Bv, Mumbai vs. DCIT (It) 4 (2) (1), Mumbai

ITA 3339/MUM/2023[2020-21]Status: DisposedITAT Mumbai04 Apr 2024AY 2020-21

For Appellant: Shri Madhur AgarwalFor Respondent: Shri Ajay Kumar Sharma

Section 143(3)Section 144C(13)Section 144C(5)Section 153Section 2(24)Section 234ASection 234BSection 270A

without 3. The relevant facts in brief are that the Appellant is a company registered under the laws of Netherlands and is treated as non-resident under the provisions of the Act. The Appellant is engaged in providing IT Support Services to Shell Group Entities. 4. For the Assessment Year ... between India and The Netherlands (Treaty'). Section 90 of the Act read with the Circulars and several judicial precedents issued thereunder provide that a non-resident taxpayer is eligible to be assessed as per the provisions of the Actor as per the provisions of the relevant double taxation avoidance agreement

Thermax Babcock & Wilcox Energy Solution Limited, Mumbai vs. Addl/Jt/Dy/CIT/Asstt/ITO/NFAC, Delhi

ITA 739/MUM/2022[2017-18]Status: DisposedITAT Mumbai04 Apr 2024AY 2017-18

Bench: Shri Vikas Awasthy & Shri Amarjit Singh, Accountαντ Μεμβer

For Appellant: Dhanesh Bafna a/wFor Respondent: Anil Sant

Page 1 ITA No.739/Mum/2022 Thermax Babcock & Wilcox Energy Solutions Ltd. Vs. DCIT, Circle 2(3)(1) IN THE INCOME TAX

Mustafa Ali Through General Power of Attorney Holder, Aun Ali Otiawala, Neemuch vs. ITO, Neemuch

Appeals are allowed for statistical purposes

ITA 538/IND/2023[2012-13]Status: HeardITAT Indore03 Apr 2024AY 2012-13

Bench: Shri Vijay Pal Rao & Shri B.M. Biyani

Section 144Section 271(1)(c)

condonation-application as well as affidavits filed to CIT(A) according to which the assessee was aged 62 years and a non-resident staying in UAE; that the assessee is not having any income taxable in India but the AO has still assessed hefty income in the assessments framed ... passed assessment-orders u/s 147 / 144 of the Act because of non-compliances of notices sent by AO. But the assessee was a non-resident staying in UAE and not aware of the notices Page 4 of 6 Mustafa Ali, Neemuch vs. ITO, Neemuch ITA Nos.536 to 538/Ind/2023

Mustafa Ali Through General Power of Attorney Holder, Aun Ali Otiawala, Neemuch vs. ITO, Neemuch

Appeals are allowed for statistical purposes

ITA 537/IND/2023[2012-13]Status: HeardITAT Indore03 Apr 2024AY 2012-13

Bench: Shri Vijay Pal Rao & Shri B.M. Biyani

Section 144Section 271(1)(c)

Mustafa Ali Through General Power of Attorney Holder, Aun Ali Otiawala, Neemuch vs. ITO, Neemuch

Appeals are allowed for statistical purposes

ITA 536/IND/2023[2011-12]Status: HeardITAT Indore03 Apr 2024AY 2011-12

Bench: Shri Vijay Pal Rao & Shri B.M. Biyani

Section 144Section 271(1)(c)

Devinder Singh Sahney, Mumbai vs. ITO (It) 4(2)(1), Mumbai

In the result, appeal of the assessee is allowed

ITA 1585/MUM/2017[2006-07]Status: DisposedITAT Mumbai02 Apr 2024AY 2006-07

Bench: SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRIGAGAN GOYAL (Accountant Member)

For Appellant: Shri P.J.Pardiwal, Sr. Advocate with S/Shri Madhur Agrawal, Fenil Bhatt &For Respondent: S/Shri Miland Chavan & Anil Sant, Sr. DRs

Section 142(1)Section 147Section 148

30/11/2016, for the Assessment Year 2006-07. 2. Shri Percy Pardiwala, Sr.Advocate appearing on behalf of the assessee submitted that the assessee is a Non-Resident Indian (NRI). He has been 2 residing outside India since June, 1992. The assessee has been filing his return of income for the several ... years in the status of Non-Resident andthe same have been accepted by the Department. As Non-resident, the assessee has maintained Non-Resident(External) Account and Non-Resident(Ordinary) Account with banks in India. Thus, the assessee has been filing return of income in the status of “Non-Resident

Firefly Energy Limited, Ahmedabad vs. The Income Tax Officer, Ward-2(1)(3), Ahmedabad

In the result, the appeal filed by the assessee is partly allowed for the statistical purposes

ITA 2871/AHD/2016[2012-13]Status: DisposedITAT Ahmedabad28 Mar 2024AY 2012-13

Bench: Shri Waseem Ahmed & Shri Tr Senthil Kumarआयकरअपीलसं./Ita No. 2871/Ahd/2016 धििाधरणवरध/Asstt. Year: 2012-2013 Firefly Energy Limited, Income Tax Officer, 14. Pahelgaon Bunglow, Vs. Ward-2(1)(3), Judges Bungalow Road, Ahmedabad. Vastrapura, Ahmedabad. C/O. Mehta Lodha & Co. Chartered Accountants, 105, Sakar-1, Near Gandhi Gram Rly. Station, Ashram Road, Ahmedabad-380009. Pan: Aabca6692E

For Appellant: Shri PD Shah, ARFor Respondent: Shri Kamlesh Makwana, CIT. DR

Section 143(2)Section 68

Russian Technology Centre (P) Ltd. 19 certificates of good standing etc. filed by the assessee in respect of shareholders establish that they are non-resident entities, having independent and legal existence. The moneys have come to assessee through banking channels as is evident from FIRC, which also mentions the purpose ... considered carefully in the light of the material placed on record. The assessee before us is a non- resident. The total income of the non-resident which is taxable under the Act is defined in s. 5(2) which includes income which (a) is received or due to be received

M/S. Finwizard Technology Pvt Ltd., Bangalore vs. Assistant Commissioner of Income Tax, Circle- 1(2)(1), Bangalore

In the result, the appeal is allowed for statistical purpose

ITA 15/BANG/2024[2016-17]Status: DisposedITAT Bangalore28 Mar 2024AY 2016-17

Bench: Smt. Beena Pillai & Sri Laxmi Prasad Sahuassessment Year: 2016-17

For Appellant: Smt. Sheetal, A.RFor Respondent: Shri V. Parithivel, D.R

Section 133(6)Section 142(1)Section 143(2)Section 250Section 56(2)(viib)Section 68

upon by the ld. AO. The ld. AO perused all the details furnished by the assessee and observed that the assessee received investments from Non-Residents as well as Residents, for which confirmation details were not furnished. The Resident investors also did not reply to the notice ... amounting to Rs.1,73,65,755/-, received as share premium from the residents, and the balance amount of Rs.1,48,03,285/- from non-residents was added u/s 68 of the Act for not able to establish the identity, creditworthiness and genuineness of the transaction. 2.4 Aggrieved by the order

Executors of the Will of Late Smt. Gaindibai Barjatya, Mumbai vs. Jurisdictional Officer, Mumbai

ITA 1299/MUM/2024[2020-21]Status: DisposedITAT Mumbai27 Mar 2024AY 2020-21

Bench: Shri Vikas Awasthy & Shri Amarjit Singh

For Appellant: Respondent byFor Respondent: Date of Hearing

Section 115Section 115JSection 143(3)

owner of the Dividend is a resident in France, the tax so charged shall not exceed specified percent. The first condition is that the non-resident in France should be taxed in India. We have to look at the DTAA from the receipients taxability perspective. DDT is paid

“non-resident”

Leading authorities on non-resident

Judgments citing non-resident

Harini Sampath, Chennai vs. ITO, Intnl Taxn, Ward-2(2), Chennai

Karur Vysya Bank Ltd., Karur vs. DCIT Circle 2(1), Trichy

Karur Vysya Bank Ltd., Karur vs. DCIT Circle 2(1), Trichy

DCIT Circle 2(1), Trichy vs. The Karur Vysya Bank Ltd., Karur

DCIT Circle 2(1), Trichy vs. The Karur Vysya Bank Ltd., Karur

M/S. Tega Industries Limited, Kolkata vs. D.C.I.T., Circle-11(1), Kolkata

Ups Jetair Express Private Limited, Mumbai vs. ACIT - 11(1)(2), Mumbai

ACIT-11(1)(2), Mumbai vs. Ups Jetair Express Pvt. Ltd., Mumbai

Sunil Kapoor, New Delhi vs. ACIT Circle Intl. Taxation 2(1)(2), New Delhi

Herbert Smith Free LLP, New Delhi vs. DCIT, Circle- 2(1)(1), New Delhi

Bhargav Vaddavalli, Hyderabad vs. Income Tax Officer, Ward - 8(3), Hyderabad

Shell Information Technology International Bv, Mumbai vs. DCIT (It) 4 (2) (1), Mumbai

Thermax Babcock & Wilcox Energy Solution Limited, Mumbai vs. Addl/Jt/Dy/CIT/Asstt/ITO/NFAC, Delhi

Mustafa Ali Through General Power of Attorney Holder, Aun Ali Otiawala, Neemuch vs. ITO, Neemuch

Mustafa Ali Through General Power of Attorney Holder, Aun Ali Otiawala, Neemuch vs. ITO, Neemuch

Mustafa Ali Through General Power of Attorney Holder, Aun Ali Otiawala, Neemuch vs. ITO, Neemuch

Devinder Singh Sahney, Mumbai vs. ITO (It) 4(2)(1), Mumbai

Firefly Energy Limited, Ahmedabad vs. The Income Tax Officer, Ward-2(1)(3), Ahmedabad

M/S. Finwizard Technology Pvt Ltd., Bangalore vs. Assistant Commissioner of Income Tax, Circle- 1(2)(1), Bangalore

Executors of the Will of Late Smt. Gaindibai Barjatya, Mumbai vs. Jurisdictional Officer, Mumbai