“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

ACIT Int. Taxation Circle-2(2)(1), Delhi vs. Mcdermott International Managemen, Panama

In the result, appeal of the Revenue for both the AYs 2020-21 and 2021-22 are dismissed

ITA 2374/DEL/2023[2021-22]Status: DisposedITAT Delhi09 Feb 2024AY 2021-22

Bench: Dr. Brr Kumar & Ms. Astha Chandra

For Appellant: Shri Amit Arora & Vishal Misra, CAFor Respondent: Shri Vizay B. Vasanta, CIT, DR

Section 143(3)Section 30Section 448Section 44B

expenses from section 30 to 43B of the Income Tax Act are deemed to have been allowed?” 3. Briefly stated, the assessee is a non-resident foreign company incorporated under the laws of Republic of Panama. The assessee is engaged in the business of engineering, procurement, fabrication and installation

ACIT Intl. Taxation Circle 2(2)(1), New Delhi vs. Mcdermott International Management, Panama

In the result, appeal of the Revenue for both the AYs 2020-21 and 2021-22 are dismissed

ITA 2373/DEL/2023[2020-21]Status: DisposedITAT Delhi09 Feb 2024AY 2020-21

Bench: Dr. Brr Kumar & Ms. Astha Chandra

For Appellant: Shri Amit Arora & Vishal Misra, CAFor Respondent: Shri Vizay B. Vasanta, CIT, DR

Section 143(3)Section 30Section 448Section 44B

Deputy Commissioner of Income Tax International Taxation Circle 2 2, Bmtc Building Koramangala vs. The Oasis Centre Llc, Dubai Uae

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

ITA 959/BANG/2023[2016-17]Status: DisposedITAT Bangalore08 Feb 2024AY 2016-17

Bench: Shri George George K & Shri Chandra Poojariit(It)A No.959/Bang/2023 Assessment Year : 2016-17 Dcit (International Taxation), Vs. M/S. The Oasis Centre Llc, Circle – 2(2), Land Mark Group West Wing Building Bengaluru. No.3, Off Hal Airport Main Road, Yamlur – 560 037, Bangalore. Pan : Aafct 2481 C Appellant Respondent Assessee By : Shri. K. R. Vasudevan, Advocate Revenue By : Ms. Neera Malhotra, Cit(Dr)(Itat), Bengaluru. Date Of Hearing : 07.02.2024 Date Of Pronouncement : 08.02.2024

For Appellant: Shri. K. R. Vasudevan, AdvocateFor Respondent: Ms. Neera Malhotra, CIT(DR)(ITAT), Bengaluru

Section 143(2)Section 250Section 9(1)(vi)

first category deals with cases in which computer software is purchased directly by an end-user, resident in India, from a foreign, non-resident supplier or manufacturer. ii) The second category of cases deals with resident Indian companies that act as distributors or resellers, by purchasing computer software from foreign ... then reselling the same to resident Indian end-users. iii) The third category concerns cases wherein the distributor happens to be a foreign, non-resident vendor, who, after purchasing software from a foreign, non-resident seller, resells the same to resident Indian distributors or end-users. iv) The fourth category

Income-Tax Officer, Ward-1, Bellary vs. M/S. South West Mining Limited, Bellary

In the result, appeal of the revenue is dismissed and CO filed by the assessee is dismissed

ITA 457/BANG/2023[2011-12]Status: DisposedITAT Bangalore08 Feb 2024AY 2011-12

Bench: Shri Chandra Poojari & Smt. Madhumita Royassessment Year: 2011-12 Ito M/S. South West Mining Limited Aayakar Bhavan Staff Road Vidya Nagar Fort Bellary Near Talur Cross Karnataka Toranagallu Vs. Bellary 583 201 Karnataka Pan No : Aafcs9792M Appellant Respondent C.O. No.4/Bang/2023 (Arising Out Of Ita No.457/Bang/2023) Assessment Year: 2011-12 M/S. South West Mining Limited Ito Vs. Bellary 583 201 Ward-1 Karnataka Bellary Appellant Respondent Assessee By : Shri Rakesh Joshi, A.R. Revenue By : Ms. Neera Malhotra, D.R. Date Of Hearing : 20.12.2023 Date Of Pronouncement : 08.02.2024 O R D E R Per Chandra Poojari: This Appeal By Revenue & Co By Assessee Are Directed Against The Order Of Nfac For The Assessment Year 2011-12 Dated 21.4.2023 Passed U/S 250 Of The Income Tax Act, 1961 (In Short “The Act”). The Revenue In This Appeal Raised Following Ground: “Whether The Ld. Cit(A) Is Justified On The Facts Of The Case & In Law, In Deleting The Addition Of Rs.287.72 Crores Claimed Towards “Mine Development Expenditure” U/S 37(1) In The Computation Of Income Which Was Not Routed Through The Profit & Loss Account.”

For Appellant: Shri Rakesh Joshi, A.RFor Respondent: Ms. Neera Malhotra, D.R

Section 143(1)Section 143(3)Section 234BSection 250Section 37Section 37(1)

such company declares its dividends in India, and regardless of the pattern of its share- holding. It will also not be available to non-resident taxpayers generally. 50. The expenditure to be amortised under s. 35E will be the expenditure incurred under the specified heads after 31st March, 1970, during

Ritu Sikandar Khanna, Mumbai vs. Income Tax Officer(It), Mumbai

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

ITA 3481/MUM/2023[2012-13]Status: DisposedITAT Mumbai08 Feb 2024AY 2012-13

Bench: Shri Prashant Maharishi & Shri Sandeep Singh Karhail

For Appellant: Shri Subhash Chhajed a/wFor Respondent: Smt. Mahita Nair

Section 143(2)Section 143(3)Section 147Section 148Section 250Section 69A

appeal before us. 5. We have considered the submissions of both sides and perused the material available on record. The assessee is a non-resident Indian and cabin crew member with Air Atlanta based in Jeddah. In the present case, it is undisputed that for the year under consideration

Sudarshan Arora, Birmingham vs. DCIT International Taxation, Gurgaon

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

ITA 1516/DEL/2022[2019-20]Status: DisposedITAT Delhi08 Feb 2024AY 2019-20

Bench: SHRI SAKTIJIT DEY (Vice President), SHRI M. BALAGANESH (Accountant Member)

Section 143(3)

passed in favour of the Appellant.” 4. We have heard the Ld. DR and perused the materials available on record. The assessee is a Non-Resident Indian and had filed her return of income for the Asst Year 2019-20 on 16.9.2019 declaring total income

Turner Morrison Ltd., Kolkata vs. DCIT, Cir, Kol, Kolkata

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

ITA 530/KOL/2023[2020-21]Status: DisposedITAT Kolkata07 Feb 2024AY 2020-21

Bench: Shri Sanjay Garg & Shri Girish Agrawalassessment Year: 2020-21

For Appellant: Shri Miraj D. Shah, ARFor Respondent: Shri S. Datta, CIT, DR

Section 143(1)

194BB, respectively. 8.2 Likewise, payments made to contractors and insurance commission, payments made in respect of life insurance policy, and payments made to the non-resident sportsmen or sports associations are liable for deduction to tax at source under Sections 194C, 194D, 194DA, and 194E, respectively ... payments made to non-residents [not being a company], or to a foreign company are concerned, any interest (not being interest referred to in section 194LB or section 194LC or section 194LD) or any other sum chargeable under the provisions of this Act (not being income chargeable under the head

Air Liquide Global Ec Germany Gmbh, Germany vs. ACIT, Circle International Tax 1(1)(1), New Delhi

In the result, the appeal is allowed and the stay application is

ITA 2401/DEL/2023[2020-21]Status: DisposedITAT Delhi07 Feb 2024AY 2020-21

Bench: Shri Saktijit Dey, Vice- & Shri M. Balaganeshassessment Year: 2020-21

Section 144C(13)Section 44B

taxability of the amount received by the assessee from offshore supplies of plants and equipments. 3. Briefly the facts are, the assessee, a non-resident corporate entity, is incorporated in Federal Republic of Germany and is a tax resident of Germany. As stated, the assessee is engaged in the business ... submitted, application of section 44BB of the Act is totally misplaced as the said provision can be invoked only in case of a non-resident engaged in the business of providing services or facilities or supplying plant and machinery on hire for use or to be used in prospecting

Sarva Capital Llc, New Delhi vs. ACIT Circle International Tax 3(1)(2), New Delhi

In the result, appeal is partly allowed

ITA 2073/DEL/2023[2020-21]Status: DisposedITAT Delhi05 Feb 2024AY 2020-21

Bench: Shri Kul Bharat & Dr. B. R. R. Kumar

For Appellant: Sh. Nirbhay Mehta, AdvFor Respondent: Sh. Vizay B.Vasanta, CIT-DR

Section 112Section 143(2)Section 143(3)Section 144C(13)Section 270A

equity shares under Article 13(4) of India-Mauritius DTAA. 6. Briefly, the facts relating to the issue are, the assessee is a non-resident corporate entity incorporated under the laws of Mauritius and a tax resident of Mauritius. As stated by the Assessing Officer, the assessee was incorporated primarily ... decisions, such as, fund flow, investment activities, divestment of investments are taken collectively outside India by assessee’s board of directors, who are all non-residents including the resident directors in Mauritius. In this context, he drew our attention to share holding patterns of the assessee company as well

Deputy Commissioner of Income Tax, Circle-2(2), International Taxation, Bengaluru, Bangalore vs. Tata Communication (Uk) Limited, United Kingdom

In the result, Revenue’s appeals and the COs of the assessee are dismissed

ITA 865/BANG/2023[2010-11]Status: DisposedITAT Bangalore01 Feb 2024AY 2010-11

Bench: Shri George George K & Shri Laxmi Prasad Sahuit(It)A Nos.864, 865/Bang/2023 Assessment Years : 2009-10, 2010-11 The Deputy Commissioner Of Income Tax, Vs. M/S. Tata Communications (Uk) Ltd., Circle -2(2), International Taxation, Vintners Place, 68 Upper Thames, Bengaluru. Street London Ec4V3Bj, United Kingdom - 999999. Pan : Aahct 0782 C Appellant Respondent C.O.Nos.2, 3/Bang/2024 (In It(It)A Nos. 864, 865/Bang/2023) Assessment Years : 2009-10, 2010-11 M/S. Tata Communictions (Uk) Ltd., Vs. The Deputy Commissioner Of Income Tax, Vintners Place, 68 Upper Thames, Circle -2(2), International Taxation, Street London Ec4V3Bj, Bengaluru. United Kingdom - 999999. Pan : Aahct 0782 C Cross Objector Respondent Appellant By : Shri. Ketan Ved, Ca Respondent By : Ms. Neera Malhotra, Cit(Dr)(Itat), Bengaluru Date Of Hearing : 01.02.2024 Date Of Pronouncement : 01.02.2024 O R D E R Per Bench : These Appeals At The Instance Of The Department & Cross- Objections (Co) By The Assessee Are Directed Against Two Orders Of Cit(A)

For Appellant: Shri. Ketan Ved, CAFor Respondent: Ms. Neera Malhotra, CIT(DR)(ITAT), Bengaluru

Section 142(1)Section 144Section 147Section 148Section 201Section 9Section 9(1)(vi)

Financial Years 2009-10 to 2011-12 in respect of non-deduction of tax at source on payments made to its Non-Resident Telecom Operators (NTOs) for provision of bandwidth capacity and provision of interconnect services. In the orders passed in the case of VSL under section ... case of M/s. VSL (the payer) in the proceedings under section 201 of the Act, had held that the said charges paid to the non-resident is Royalty/FTS and the income is deemed to accrue or arise under section 9 of the Act. Therefore, it was concluded by the Tribunal

Deputy Commissioner of Income Tax, Circle-2(2), International Taxation, Bengaluru vs. Tata Communication (Uk) Limited, United Kingdom

In the result, Revenue’s appeals and the COs of the assessee are dismissed

ITA 864/BANG/2023[2009-10]Status: DisposedITAT Bangalore01 Feb 2024AY 2009-10

For Appellant: Shri. Ketan Ved, CAFor Respondent: Ms. Neera Malhotra, CIT(DR)(ITAT), Bengaluru

Section 142(1)Section 144Section 147Section 148Section 201Section 9Section 9(1)(vi)

Yokogawa India Limited, Bangalore vs. Deputy Commissioner of Income Tax Large Taxpayers Unit, Bangalore

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

ITA 2088/BANG/2017[2013-14]Status: DisposedITAT Bangalore01 Feb 2024AY 2013-14

Bench: Shri George George K. & Shri Laxmi Prasad Sahu

For Appellant: Shri Nageshwar Rao, AdvocateFor Respondent: Ms. Neera Malhotra, CIT(DR)(ITAT), Bengaluru

Section 143(3)Section 14A

ITAT Rules, 1963 vide its letter dated 5.7.2021 which is as under:- “Ground 21: Refund of dividend distribution tax (DDT') paid in respect of non-resident shareholder 21.1 Based on facts and the circumstances of the case and in law, the Ld. Assessing Officer ("AO") ought to have restricted ... levy of dividend distribution tax paid during the year amounting to INR 1,41,94,688, being taxable in the hands of non-resident shareholder, i.e. Yokogawa Electric Corporation to the rate of 10% prescribed under Article 11 of the India - Japan DTAA or INR 87,50,00 as against