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“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

Hcl Poland Sp Zoo, Poland vs. ACIT Circle -2(1)(1) International Taxation, New Delhi

In the result, the appeal of the assessee in ITA No

ITA 560/DEL/2021[2012-13]Status: DisposedITAT Delhi20 Dec 2023AY 2012-13

Bench: SHRI KUL BHARAT (Judicial Member), SHRI M. BALAGANESH (Accountant Member)

Section 144C(13)

specific provisions of the domestic law as under:- a) As per the provisions of section 5 of the Act, the total income of a non-resident will include all income which are: - received or deemed to be received in India; or - accrues or arises or is deemed to accrue ... outside India or for the purposes of making or earning any income from any source outside India; or (c) a person who is a non-resident, where the fees are payable in respect of services utilised in a business or profession carried on by such person in India

Hcl Technologies Germany Gmbh, Germany vs. ACIT Circle -2(1)(1) International Taxation, New Delhi

In the result, the appeal of the assessee in ITA No

ITA 559/DEL/2021[2012-13]Status: DisposedITAT Delhi20 Dec 2023AY 2012-13

Bench: SHRI KUL BHARAT (Judicial Member), SHRI M. BALAGANESH (Accountant Member)

Section 144C(13)

specific provisions of the domestic law as under:- a) As per the provisions of section 5 of the Act, the total income of a non-resident will include all income which are: - received or deemed to be received in India; or - accrues or arises or is deemed to accrue ... outside India or for the purposes of making or earning any income from any source outside India; or (c) a person who is a non-resident, where the fees are payable in respect of services utilised in a business or profession carried on by such person in India

Hcl Technologies France, New Delhi vs. ACIT, Circle-Int. Tax 2(1)(1), New Delhi

In the result, the appeal of the assessee in ITA No

ITA 544/DEL/2021[2012-13]Status: DisposedITAT Delhi20 Dec 2023AY 2012-13

Bench: SHRI KUL BHARAT (Judicial Member), SHRI M. BALAGANESH (Accountant Member)

Section 144C(13)

specific provisions of the domestic law as under:- a) As per the provisions of section 5 of the Act, the total income of a non-resident will include all income which are: - received or deemed to be received in India; or - accrues or arises or is deemed to accrue ... outside India or for the purposes of making or earning any income from any source outside India; or (c) a person who is a non-resident, where the fees are payable in respect of services utilised in a business or profession carried on by such person in India

Hcl Technologies Philippines Inc., New Delhi vs. ACIT, Circle-Int. Tax 2(1)(1), New Delhi

In the result, the appeal of the assessee in ITA No

ITA 543/DEL/2021[2012-13]Status: DisposedITAT Delhi20 Dec 2023AY 2012-13

Bench: SHRI KUL BHARAT (Judicial Member), SHRI M. BALAGANESH (Accountant Member)

Section 144C(13)

specific provisions of the domestic law as under:- a) As per the provisions of section 5 of the Act, the total income of a non-resident will include all income which are: - received or deemed to be received in India; or - accrues or arises or is deemed to accrue ... outside India or for the purposes of making or earning any income from any source outside India; or (c) a person who is a non-resident, where the fees are payable in respect of services utilised in a business or profession carried on by such person in India

Hcl Singapore Pte Ltd, New Delhi vs. ACIT Circle International Taxation 2(1)(1), New Delhi

In the result, the appeal of the assessee in ITA No

ITA 537/DEL/2021[2012-13]Status: DisposedITAT Delhi20 Dec 2023AY 2012-13

Bench: SHRI KUL BHARAT (Judicial Member), SHRI M. BALAGANESH (Accountant Member)

Section 144C(13)

specific provisions of the domestic law as under:- a) As per the provisions of section 5 of the Act, the total income of a non-resident will include all income which are: - received or deemed to be received in India; or - accrues or arises or is deemed to accrue ... outside India or for the purposes of making or earning any income from any source outside India; or (c) a person who is a non-resident, where the fees are payable in respect of services utilised in a business or profession carried on by such person in India

Hcl Technologies Denmark Aps, New Delhi vs. ACIT Circle- 2(1)(1) International Taxation, New Delhi

In the result, the appeal of the assessee in ITA No

ITA 528/DEL/2021[2012-13]Status: DisposedITAT Delhi20 Dec 2023AY 2012-13

Bench: SHRI KUL BHARAT (Judicial Member), SHRI M. BALAGANESH (Accountant Member)

Section 144C(13)

specific provisions of the domestic law as under:- a) As per the provisions of section 5 of the Act, the total income of a non-resident will include all income which are: - received or deemed to be received in India; or - accrues or arises or is deemed to accrue ... outside India or for the purposes of making or earning any income from any source outside India; or (c) a person who is a non-resident, where the fees are payable in respect of services utilised in a business or profession carried on by such person in India

Volvo Information Technology Ab, Sweden vs. DCIT, Intl. Taxation, Circle- 3(1)(1), New Delhi

In the result, assessee’s appeals in ITA No

ITA 393/DEL/2018[2014-15]Status: DisposedITAT Delhi20 Dec 2023AY 2014-15

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

Section 194CSection 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 ... non-resident suppliers or manufacturers and 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

M/S. Exl Service.Com Llc, Mumbai vs. ADIT, New Delhi

In the result, the appeals of the assessee in ITA Nos

ITA 5628/DEL/2014[2005-06]Status: DisposedITAT Delhi20 Dec 2023AY 2005-06

Bench: Shri N.K. Billaiya & Ms Astha Chandra

For Appellant: Shri Ajay Vohra, Sr. AdvFor Respondent: Shri Vizay B. Vasanta, CIT-DR
Section 143(3)

length principle we have quoted Article 7(2) of DTAA. According to AAR where there is an international transaction under which a non-resident compensates a PE at arm's length price, no further profits would be attributable in India. In this connection, AAR has relied upon Circular ... interest u/s 234B is concerned, u/s 195 of the Act, tax is deductible at source from payments made to non-residents. The assessee being a non-resident, tax is deductible at source u/s 195 of the Act from the payments made to the assessee. Therefore, no advance tax was payable

M/S. Exl Service.Com Llc, Mumbai vs. ADIT, New Delhi

In the result, the appeals of the assessee in ITA Nos

ITA 5627/DEL/2014[2004-05]Status: DisposedITAT Delhi20 Dec 2023AY 2004-05

Bench: Shri N.K. Billaiya & Ms Astha Chandra

For Appellant: Shri Ajay Vohra, Sr. AdvFor Respondent: Shri Vizay B. Vasanta, CIT-DR
Section 143(3)

length principle we have quoted Article 7(2) of DTAA. According to AAR where there is an international transaction under which a non-resident compensates a PE at arm's length price, no further profits would be attributable in India. In this connection, AAR has relied upon Circular ... interest u/s 234B is concerned, u/s 195 of the Act, tax is deductible at source from payments made to non-residents. The assessee being a non-resident, tax is deductible at source u/s 195 of the Act from the payments made to the assessee. Therefore, no advance tax was payable

ADIT, New Delhi vs. M/S. Exl Service.Com Inc, Usa

In the result, the appeals of the assessee in ITA Nos

ITA 4989/DEL/2014[2005-06]Status: DisposedITAT Delhi20 Dec 2023AY 2005-06

Bench: Shri N.K. Billaiya & Ms Astha Chandra

For Appellant: Shri Ajay Vohra, Sr. AdvFor Respondent: Shri Vizay B. Vasanta, CIT-DR
Section 143(3)

length principle we have quoted Article 7(2) of DTAA. According to AAR where there is an international transaction under which a non-resident compensates a PE at arm's length price, no further profits would be attributable in India. In this connection, AAR has relied upon Circular ... interest u/s 234B is concerned, u/s 195 of the Act, tax is deductible at source from payments made to non-residents. The assessee being a non-resident, tax is deductible at source u/s 195 of the Act from the payments made to the assessee. Therefore, no advance tax was payable

M/S. Exl Service.Com Llc, Mumbai vs. ADIT, New Delhi

In the result, the appeals of the assessee in ITA Nos

ITA 3408/DEL/2014[2006-07]Status: DisposedITAT Delhi20 Dec 2023AY 2006-07

Bench: Shri N.K. Billaiya & Ms Astha Chandra

For Appellant: Shri Ajay Vohra, Sr. AdvFor Respondent: Shri Vizay B. Vasanta, CIT-DR
Section 143(3)

length principle we have quoted Article 7(2) of DTAA. According to AAR where there is an international transaction under which a non-resident compensates a PE at arm's length price, no further profits would be attributable in India. In this connection, AAR has relied upon Circular ... interest u/s 234B is concerned, u/s 195 of the Act, tax is deductible at source from payments made to non-residents. The assessee being a non-resident, tax is deductible at source u/s 195 of the Act from the payments made to the assessee. Therefore, no advance tax was payable

Exl Service.Com Inc, Mumbai vs. Addl. DIT Int. Taxation, New Delhi

In the result, the appeals of the assessee in ITA Nos

ITA 4183/DEL/2013[2003-04]Status: DisposedITAT Delhi20 Dec 2023AY 2003-04

Bench: Shri N.K. Billaiya & Ms Astha Chandra

For Appellant: Shri Ajay Vohra, Sr. AdvFor Respondent: Shri Vizay B. Vasanta, CIT-DR
Section 143(3)

length principle we have quoted Article 7(2) of DTAA. According to AAR where there is an international transaction under which a non-resident compensates a PE at arm's length price, no further profits would be attributable in India. In this connection, AAR has relied upon Circular ... interest u/s 234B is concerned, u/s 195 of the Act, tax is deductible at source from payments made to non-residents. The assessee being a non-resident, tax is deductible at source u/s 195 of the Act from the payments made to the assessee. Therefore, no advance tax was payable

Smt. Pratimaben V. Raja, Rajkot vs. The Income Tax Officer, Intl. Taxn., Rajkot

In the result, Ground No. 1 of the assessee’s appeal is allowed

ITA 51/RJT/2018[2006-07]Status: DisposedITAT Rajkot20 Dec 2023AY 2006-07

Bench: Shri Waseem Ahmed & Shri Siddhartha Nautiyal

For Appellant: Shri R. D. Lalchandani, A.RFor Respondent: Shri Shramdeep Sinha, CIT DR
Section 148Section 2(30)Section 68Section 69

assessee submitted that the assessee is a non- resident as defined under Section 2(30) of the Act and the “non-resident” status of the assessee has not been disputed by the Assessing Officer. Further, the assessee submitted that the entire funds had come from his son’s overseas accounts ... both the assessee and his son are non-residents during the relevant previous year, and the aforesaid facts have not been disputed by the Department at any stage. The assessee submitted that since the assessee is a non-resident and he had received funds through banking channel

Shri Vinodkumar Hiralal Raja, Rajkot vs. The Income Tax Officer, Intl. Taxn., Rajkot

In the result, Ground No. 1 of the assessee’s appeal is allowed

ITA 50/RJT/2018[2006-07]Status: DisposedITAT Rajkot20 Dec 2023AY 2006-07

Bench: Shri Waseem Ahmed & Shri Siddhartha Nautiyal

For Appellant: Shri R. D. Lalchandani, A.RFor Respondent: Shri Shramdeep Sinha, CIT DR
Section 148Section 2(30)Section 68Section 69

assessee submitted that the assessee is a non- resident as defined under Section 2(30) of the Act and the “non-resident” status of the assessee has not been disputed by the Assessing Officer. Further, the assessee submitted that the entire funds had come from his son’s overseas accounts ... both the assessee and his son are non-residents during the relevant previous year, and the aforesaid facts have not been disputed by the Department at any stage. The assessee submitted that since the assessee is a non-resident and he had received funds through banking channel

ACIT Circle-2(2)(1), International Taxation, New Delhi vs. Michelin Roh Co. Ltd., Thailand

In the result, both the appeals of the Revenue are dismissed

ITA 1747/DEL/2023[2018-19]Status: DisposedITAT Delhi19 Dec 2023AY 2018-19

Bench: Dr. B. R. R. Kumarms. Astha Chandra

For Appellant: Sh. Nikhil Tiwari, CAFor Respondent: Sh. Sanjay Kumar, Sr. DR
Section 234ASection 270A

Madras High Court ("HC") in the case of Bangkok Glass Industry Co. Ltd. [2013] 34 taxmann.com 77 In the give case, the assessee, a non-resident company of Thailand, entered into technical assistance know-how agreement with MBDL, in India for transfer of glass technology know-how. The assessee received ... Delhi Tribunal while ruling in the case held that where the business profits of the non-resident include items of income for which specific or separate provisions have been made in other articles of the tax treaty, then those provisions would apply to the items. However, in case

ACIT Circle-2(2)(1), International Taxation, New Delhi vs. Michelin Roh Co. Ltd., Thailand

In the result, both the appeals of the Revenue are dismissed

ITA 1746/DEL/2023[2017-18]Status: DisposedITAT Delhi19 Dec 2023AY 2017-18

Bench: Dr. B. R. R. Kumarms. Astha Chandra

For Appellant: Sh. Nikhil Tiwari, CAFor Respondent: Sh. Sanjay Kumar, Sr. DR
Section 234ASection 270A

Madras High Court ("HC") in the case of Bangkok Glass Industry Co. Ltd. [2013] 34 taxmann.com 77 In the give case, the assessee, a non-resident company of Thailand, entered into technical assistance know-how agreement with MBDL, in India for transfer of glass technology know-how. The assessee received ... Delhi Tribunal while ruling in the case held that where the business profits of the non-resident include items of income for which specific or separate provisions have been made in other articles of the tax treaty, then those provisions would apply to the items. However, in case

ITO, Ward-1(3), New Delhi vs. Adception Infotech P.Ltd, New Delhi

In the result, ground no. 3(a) and (b) are allowed

ITA 5217/DEL/2017[2012-13]Status: DisposedITAT Delhi19 Dec 2023AY 2012-13

Bench: Shri Challa Nagendra Prasad & Shri Pradip Kumar Kedia

For Appellant: N o n e
Section 133(6)Section 144Section 68

equity share. The money has been transferred from NRE Axis Bank Marine Line, Mumbai Branch on 07.12.2011 through RTGS. Sh. Atim Kabra is a non-resident for several years and has sufficient funds for making investment. He has also filed his return of income

Vodafone India Services Pvt. Ltd, Mumbai vs. DCIT Circle-4(1)(2), Ahmedabad

In the result, the appeal of the assessee is allowed

ITA 2241/AHD/2018[2009-10]Status: DisposedITAT Mumbai18 Dec 2023AY 2009-10

Bench: Shri Aby T. Varkey, Jm & Shri Amarjit Singh, Am आयकर अपील सं/ I.T.A. No.2241/Ahd/2018 (निर्धारण वर्ा / Assessment Year: 2009-10) Vodafone India Services बिधम/ Dcit, Central Circle- Pvt. Ltd. 4(1)(2) Vs. Indiabulls Finance Centre, B Wing, 2Nd Floor, Room 1201, 12Th Floor, Tower-1, No.209, Pratyaksh Kar Senapati Bapat Road, Bhavan, Near Elphinstone (West), Polytechnic, Ambawadi, Mumbai-400013. Ahmedabad-380015. स्थधयी लेखध सं./जीआइआर सं./Pan/Gir No. : Aaacz1849D (अपीलार्थी /Appellant) .. (प्रत्यर्थी / Respondent) Assessee By: Ms. Fereshte Sethna (Adv) Revenue By: Letter Dated 11.10.2023 सुनवाई की तारीख / Date Of Hearing: 10/10/2023 घोषणा की तारीख /Date Of Pronouncement: 18/12/2023 आदेश / O R D E R Per Aby T. Varkey, Jm: This Appeal Has Been Preferred By The Assessee Company Against The Order Of The Ld. Commissioner Of Income Tax (Appeals)-13, Ahmedabad Dated 31.08.2018, Arising Out Of The Final Assessment Order Passed U/S 143(3)/144C(13) Dated 05.12.2014 For The Assessment Year 2009-10. 2. In The Several Grounds Raised In The Appeal, The Sole Grievance Of The Appellant Is Against The Action Of The Ao/Ld. Cit(A) In Not Allowing The Depreciation Claimed On Goodwill.

For Appellant: Ms. Fereshte Sethna (Adv)For Respondent: Letter dated 11.10.2023
Section 143(1)Section 143(3)Section 144C(15)(b)Section 92C

Court in their order dated 10.10.2014 [reported in 50 taxmann.com 300] had held that, the issue of shares at premium by VISPL to its non-resident holding company did not give rise to any income from an admitted international transaction. The Hon’ble High Court thus held that provisions

The DCIT, (Intl. Taxn.), Rajkot vs. M/S. Korea South East Power Co. Ltd., Mumbai

In the result, the appeal of the Revenue is dismissed

ITA 132/RJT/2019[2011-12]Status: DisposedITAT Rajkot15 Dec 2023AY 2011-12

Bench: Smt. Annapurna Gupta & Shri T.R. Senthil Kumar(Conducted Through Virtual Court) Assessment Year: 2011-12 The Dcit (Intl. Taxn.) M/S.Korea South East Power Amruta Estate Co.Ltd. Room No.312 Mg Road बनाम/ C/O. P.V. Page & Co., Girnar Cinema 201, Sardar Griha, 198 L.T. Marg Vs. Rajkot Mumbai – 400 002 (Appellant) (Respondent) Pan: Pan : Ahvps 3555Q Assessee By None Revenue By Shri Ashish Kumar Pandey, Sr.Dr Date Of Hearing 25/09/2023 Date Of Pronouncement 15/12/2023

Section 115ASection 271(1)(c)Section 44B

return as income from “turn key power projects” liable to be taxed u/s.44BBB of the Act. The Ld.CIT(A) has noted that company a non-resident company, it was expected to rely on the opinion of Tax Consultants and when the tax Consultants were not providing any concrete opinion ... local laws of India. The findings contained in paragraph Nos.11 & 12 are as under: “11. It is observed that the Appellant being a non-resident in India was expected to rely on the opinion of tax consultants in India. When the Appellant filed its original return of income and first

DCIT Circle-2(1)(2) Int. Taxation, New Delhi vs. J Ray Mcdermott S.A., Usa

ITA 2282/DEL/2023[2021-22]Status: DisposedITAT Delhi14 Dec 2023AY 2021-22

Bench: Sh. N. K. Billaiya & Ms. Astha Chandra

Section 115ASection 293ASection 42Section 44Section 448Section 44BSection 44D

Notwithstanding anything to the contrary contained in sections 28 to 41 and sections 43 and 43A, in the case of an assessee, being a non-resident, engaged in the business of providing services or facilities in connection with, or supplying plant and machinery on hire used, or to be used