“ non-resident ”

CIT v. Samsung Electronics Ltd.

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.

345 ITR 494 · 2012 · High Court

461

Ishikawajima Harima Heavy Industries Ltd. v. DIT

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.

288 ITR 408 · 2007 · Supreme Court

394

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

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.

346 ITR 467 · 2012 · High Court

371

125 ITR 525 · 1980 · Supreme Court

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.

270

39 Taxmann.com 88 · 2013 · High Court

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.

269

Transmission Corporation of Andhra Pradesh v. CIT

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.

239 ITR 587 · 1999 · Supreme Court

243

376 ITR 306 · 2015 · Supreme Court

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

241

ITA 1383/DEL/2023[2004-05]Status: DisposedITAT Delhi31 Aug 2023AY 2004-05

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

DCIT, Circle-3(1)(1), Int. Taxation, New Delhi vs. Raytheon Company, United States

In the result, all the appeals of the Revenue for the

Bench: Shri Challa Nagendra Prasad & Shri M Balaganeshआ.अ.सं/.I.T.A Nos.1383 To 1392/Del/2023 िनधा"रणवष"/Assessment Yeasrs:2004-05 To 2006-07, 2008-09 To 2011-12 & 2014-15 To 2016-17 बनाम Dcit, Raytheon Company Circle 3(1)(1), Vs. 870, Winter Steet, Int. Taxation, Waltham-Ma 02451, Room No. 416, Foreign Usa, 4Th Floor, E-2 Block, Usa. Dr. S.P. Mukherjee Civic Centre, J.L. Nehru Marg, New Delhi. Pan No. Aadcr3511P अपीलाथ" Appellant ""यथ"/Respondent & आ.अ.सं/.I.T.A No.441/Del/2023 िनधा"रणवष"/Assessment Year:2007-08 बनाम Acit, Raytheon Company Circle 3(1)(1), Vs. C/O Srbc & Associates Int. Taxation, Llp, Golf View Corporate Room No. 416, Tower-B, Sector-42, 4Th Floor, E-2 Block, Sector Road, Gurgaon, Dr. S.P. Mukherjee Civic Centre, Haryana. J.L. Nehru Marg, New Delhi. Pan No. Aadcr3511P अपीलाथ" Appellant ""यथ"/Respondent

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

concealed any particulars of income and quashed the impugned penalty order u/s 271(1)(c) by ignoring the fact that in the case of non-resident the primary onus of ascertaining the income tax liability is with the non-resident payee as is evident in the instant case wherein ... these cases. 169. Our answer to the question posed before us, is that the amounts paid by resident Indian end-users/distributors to non-resident computer software manufacturers/suppliers, as consideration for the resale/use of the computer software through EULAs/distribution agreements, is not the payment of royalty

DCIT-3(4), Mumbai vs. M/S Union of Bank of India, Mumbai

In the result, appeal of the Revenue is dismissed

ITA 1817/MUM/2023[2013-14]Status: DisposedITAT Mumbai30 Aug 2023AY 2013-14

Bench: The Hon'Ble High Court Of Mumbai?”

Section 244A

extending the similar benefit to a resident/deductor who has deducted tax at source and deposited the same before remitting the amount payable to a non-resident/foreign company. 38. Providing for payment of interest in case of refund of amounts paid as tax or deemed tax or advance

Ashutosh Sinha, Mumbai vs. ITO 4(2)(1), Mumbai

In the result, appeal of the assessee is partly allowed

ITA 643/MUM/2023[2016-17]Status: DisposedITAT Mumbai29 Aug 2023AY 2016-17

Section 147Section 148Section 56(2)(vii)

maintainable. The ld. DRP has refused to take the scanned copy of Form No.35A which was furnished before it. Assessee being a non-resident and was staying outside India and therefore, it was stated that the authorised representative to whom Power Of Attorney was given has signed the form No.35A

Bain & Company Inc., Haryana vs. DCIT, Int. Taxation, Haryana

In the result, the appeal is allowed as indicated above

ITA 567/DEL/2022[2018-19]Status: DisposedITAT Delhi29 Aug 2023AY 2018-19

Bench: Shri G.S. Pannu, Presidenet & Shri Saktijit Dey, Vice-Assessment Year: 2018-19 Bain & Company, Inc. Vs. Deputy/Acit, International Tax, 131, Dartmouth Street, Gurgaon, Dartmouth Street Boston, Haryana Massachusetts, Usa, Foreign United States, C/O Bain & Company India Pvt. Ltd., 20Th Floor, Building No.10, Tower C, Dlf Cyber City, Phase-Ii, Gurgaon, India, 122 002 Pan :Aaecb9564H (Applicant) (Respondent)

Section 143(3)Section 144C(13)Section 9(1)(vii)

Included Service (FIS) under Article 12 of India-USA Double Taxation Avoidance Agreement (DTAA). 4. Briefly, the facts are, assessee is a non-resident corporate entity and a tax resident of USA. As stated by the Assessing Officer, the assessee is engaged in the business of providing consultancy services

Fox International Channels (Us) Inc. (Now Known As "Tfcf" International Channels (Us) Inc'), Mumbai vs. DCIT (Int Taxation) - 4(1)(2), Mumbai

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

ITA 948/MUM/2023[2015-16]Status: DisposedITAT Mumbai25 Aug 2023AY 2015-16

Bench: Shri S. Rifaur Rahman, Hon'Ble & Shri Rahul Chaudhary, Hon'Blefox International Channels (Us) Inc V. Dcit (Intl. Taxation)-4(1)(2) 16Th Floor, Air India Building {Now Known As Tfcf International Nariman Point Channels (Us). Inc} Mumbai - 400021 C/O. Star House Urmi Estate, 95 Ganpatrao Kadam Marg Lower Parel (W), Mumbai - 400013 Pan: Aaacf8387J (Appellant) (Respondent)

Section 143(2)Section 144C(5)Section 147Section 148Section 151Section 9(1)(vi)

were issued and served on the assessee. 5. The assessee, Fox International Channels (US) Inc (in short 'FIC'), is a non-resident foreign company, incorporated in the US. It is primarily engaged in the media industry, and its business constitutes of broadcasting of its channels over various countries, including over ... observed as under:- “6. Having heard both the sides, we observe that ld CIT (A) while examining the issue has stated that the Non-resident company has granted nonexclusive distribution rights of the channels to the assessee and has not given any right to use or exploit any copyright

Evermore Polymer Systems Ltd, Mumbai vs. CIT (A), NFAC, Mumbai

ITA 1484/MUM/2023[2007-08]Status: DisposedITAT Mumbai25 Aug 2023AY 2007-08

Bench: Shri Amit Shukla & Shri Gagan Goyalevermore Polymer Systems Ltd., 53-A, Mittal Tower, 210 Narimanpoint, Mumbai-400021 Pan: Aaace1116C ...... Appellant Vs. Cit-A (Nfac) Mumbai City ..... Respondent

For Appellant: Shri Baldev Idani Ld. ARFor Respondent: Shri H. M. Bhatt, Ld. DR

Section 144Section 250Section 271(1)(c)Section 276

ailment requiring hospitalization (2). Smt Maya H Hinduja a super senior citizen, requiring constant attention and support (3) Shri Mahesh H Hinduja, now a Non-Resident, who shifted from India to USA. 4. That Appellant had discontinued its business, and had informed

Bimal V. Pala Legal Heir of Late Smt. Ranjana Vrajlal Pala, Mumbai vs. ITO 15(2)(3), Mumbai

In the result, the appeal of the assessee is allowed

ITA 2735/MUM/2016[1996-97]Status: DisposedITAT Mumbai24 Aug 2023AY 1996-97

Bench: Shri Aby T Varkey & Shri Amarjit Singhbimal V Pala Vs. Principal Commissioner (Legal Heir Of Late Smt. Of Income Tax 26 Bkc C/O H.H. Parmar & Co. Bandra East 512, Maker Chambers, V. 221, Nariman Point Mumbai – 400021 स्थायी लेखा सं./जीआइआर सं./Pan/Gir No: Apmpp6636G Appellant .. Respondent [ Appellant By : M.V. Choksi Respondent By : S. Srinivasu Date Of Hearing 10.08.2023 Date Of Pronouncement 24.08.2023 आदेश / O R D E R Per Amarjit Singh (Am): This Appeal Filed By The Assesse Is Directed Against The Order Passed By The Ld. Pcit-26, Mumbai, Dated 16.03.2016 For A.Y. 1996-97. The Assesse Has Raised The Following Grounds Before Us: “1. On The Facts & Under The Circumstances Of The Case & In Law, The Learned Cit Erred In Passing Order U/S 263 & Setting Aside The Order Dated 19/03/2014 U/S 143(3) R.W.S 147 On The Ground That It Was Erroneous & Prejudicial To The Interest Of The Revenue. 2. On The Facts & Under The Circumstances Of The Case & In Law, The Learned Cit Erred In Passing Order U/S 263 Without Taking On Record The Details Submitted & Expecting To Do The Impossible Of Bring On Record The Lost Passport 3. On The Facts & Under The Circumstances Of The Case & In Law, The Learned Cit Erred In Passing Order U/S 263 Relying On Decision Of P A G E | 2 Bimal V. Pala Vs. Pcit-26 Rampyaridevi Saraogi Vs Cit 67 Itr 84(Sc), Taradevi Aggarwal Vs Cit 88 Itr 323(Sc) & Ramaswamy Chettiyar Vs Cit 220 Itr 657.665(Mad) Which Are Not Relevant To The Appellant. 4. The Appellant Reserves The Right & Alter/Amend Grounds Of Appeal At Any Time Before The Hearing.”

For Appellant: M.V. ChoksiFor Respondent: S. Srinivasu

Section 143(3)Section 263

issued at Bahrain'. Thus, no submission was made with regard to her stay in India, but the assessment was completed taking the status as 'Non-resident', as per the claim of the assessee.” In view of the above the ld. Pr.CIT observed that order passed by the assessing officer ... also mentioned that the submission made by the assessee were simply placed on record and the assessment was completed taking the status as ‘Non-Resident’ as per the claim of the assessee. Therefore, the Pr.CIT held that there is failure on the part of the AO in making necessary verification

DCIT, Intl. Taxation, Circle, Gurgaon vs. Cairn Energy Hydrocarbon Ltd., Gurgaon

In the result, the appeal is partly allowed

ITA 7126/DEL/2019[2012-13]Status: DisposedITAT Delhi24 Aug 2023AY 2012-13

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Dey, Hon’Ble

ITA 7028/DEL/2019[2012-13]Status: DisposedITAT Delhi24 Aug 2023AY 2012-13

royalty payment of Rs.48,58,52,650/- to Oil and Natural Gas Corporation (ONGC). 4. Briefly the facts are, the assessee is a non-resident entity incorporated in Scotland, United Kingdom (UK). As stated, assessee is engaged in business of exploration, development and production of hydrocarbons. For the purpose

Cairn Energy Hydrocarbon Ltd., Gurgaon vs. DCIT, Intl. Taxation, Circle, Gurgaon

In the result, the appeal is partly allowed

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Dey, Hon’Ble

ITA 2249/DEL/2017[2011-12]Status: DisposedITAT Delhi24 Aug 2023AY 2011-12

DCIT (International Taxation), Gurgaon vs. M/S Carin Energy Hydrocarbon Ltd., Gurgaon

In the result, the appeal is partly allowed

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Dey, Hon’Ble

ITA 2229/DEL/2017[2011-12]Status: DisposedITAT Delhi24 Aug 2023AY 2011-12

M/S. Cairn Energy Hydrocarbons Ltd., Gurgaon vs. Addl. CIT (International Taxation), New Delhi

In the result, the appeal is partly allowed

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Dey, Hon’Ble

ITA 1025/MUM/2023[2013-14]Status: DisposedITAT Mumbai23 Aug 2023AY 2013-14

DCIT-15(1)(2), Mumbai vs. Luxora Realtors Pvt Ltd., Mumbai

In the result, appeal filed by the Revenue is dismissed

Bench: Shri Pavan Kumar Gadale, Hon’Ble & Shri S. Rifaur Rahman, Hon'Bledcit-15(1)(2) V. Luxora Realtors Pvt. Ltd 459, Ayakar Bhawan Unit No. 150, Avior Corporate Park Nirmal Galaxy Lbs Road M.K. Road, Mumbai- 40020 Mulund (W), Mumbai- 400080 Pan: Aabco3197J (Appellant) (Respondent)

Section 68

section 68 of I.T. Act 1961 is inapplicable. Page No. | 4 Luxora Realtors Pvt. Ltd E) In respect to share capital contribution from non-resident share holders no addition can be made if the identity of share holder is established. Assessee has placed sufficient legal evidences on record to substantiate ... Share capital contribution is in compliance with directives of Reserve Bank of India. Receipt of share capital contribution. from non-resident share holder has been accepted on receipt of foreign remittance without inviting any adverse observation by Financial Institutions. On above factual position no addition in respect to share Page

Elvis Zepherin Crasto, Mumbai vs. Income Tax Officer, Int Tax Ward 2(1), Mumbai

In the result, appeal filed by the assessee is allowed

ITA 1921/MUM/2022[2018-2019]Status: DisposedITAT Mumbai23 Aug 2023AY 2018-2019

Bench: Shri Amit Shukla, Hon'Ble & Shri S. Rifaur Rahman, Hon'Bleelvis Zepherin Crasto V. Income Tax Officer Gorai Village, Jui Pada International Taxation Gorai Essel World Road Ward – 2(1)(1) Borivali (W), Mumbai - 400091 Room No. 1724, 17Th Floor Air India Building Nariman Point, Mumbai – 400 021 Pan: Asgpc6280N (Appellant) (Respondent)

Section 143(2)Section 144C(5)Section 56(2)Section 69

144C(5) of Income-tax Act, 1961 (in short “Act”). Elvis Zepherin Crasto 2. Brief facts of the case are, assessee is a Non-Resident of individual based in Dubai, UAE with his family. Assessee filed his return of income for the A.Y. 2018-19 on 28.08.2018 declaring total income ... assessee, Ld. DRP rejected the same by observing as under: - “3.3 Findings of DRP on Ground No.1 to 10: The Assessee is a Non-Resident individual based in Dubai, UAE. with his family. The assessee and his wife, Mrs. Jane Elvis Crasto, had jointly purchased Agricultural Land vide Agreement

Mannu Bhatia, Uae vs. ACIT, Circle 1(1)(2), International Taxation, New Delhi

ITA 819/DEL/2023[2016-17]Status: DisposedITAT Delhi23 Aug 2023AY 2016-17

Bench: Sh. G.S.Pannu, Hon’Ble & Sh. Anubhav Sharmash. Mannu Bhatia Vs. Acit, 1704, Mesk Tower, International Tax Al Marsa Road, Dubai Circle 1(1)(2) Marina, Dubai, Uae Pan : Afnpb4279A (Appellant) (Respondent)

Section 142Section 142(1)Section 147Section 196A

immovable property at Rs. 4,91,58,190/- (ii) Purchase of mutual funds amounting to Rs. 1,23,49,151/-. (iii) Payment to non-resident Rs. 1,60,315/-. (iv) Income in respect of units of non-residents Rs. 463/- 2.1 Ld. AO observed that despite of involved in said ... Payment made in respect of purchase of Units of Mutual Fund of Rs. 1,23,49,151/- (c) Payment to Non-Resident (section 196A) of Rs 160315 (ii) In regard of purchase of property, you are requested to provide following details- (a) Details of property. Mannu Bhatia 3 (b) Copy

Shalini Gupta, Germany vs. ACIT, Circle Int.Tax. 1(3)(1), New Delhi

ITA 628/DEL/2023[2015-16]Status: DisposedITAT Delhi23 Aug 2023AY 2015-16

Bench: Sh. G.S.Pannu, Hon’Ble & Sh. Anubhav Sharmashalini Gupta Vs. Acit, Habsburger Str 7, Circle Int. Tax 1(3)(1) Duesseldorf 4057, New Delhi Germany 999999 Pan : Bnrpg7735F (Appellant) (Respondent)

Section 139Section 147Section 69

pursuant to the directions of Dispute Resolution Panel-2, New Delhi. 2. The brief facts of the case are that the assessee is a Non-Resident Indian settled in Germany since her marriage in 1994. Assessee claims that prior to assessment year 2016-17 the assessee was not having

DCIT, Central Circle-1, New Delhi vs. Spicejet Limited, Gurgaon

ITA 2183/DEL/2022[2018-19]Status: DisposedITAT Delhi23 Aug 2023AY 2018-19

Bench: Sh. G.S.Pannu, Hon’Ble & Sh. Anubhav Sharma

ITA 2182/DEL/2022[2017-18]Status: DisposedITAT Delhi23 Aug 2023AY 2017-18

provisions of DTAA shall apply to the extent they are beneficial. Under the DTAA the foremost consideration is whether the non-resident lessor has a permanent establishment (PE) in India as per Article 5 of the relevant. According to him, m leasing of an aircraft which is located in India

DCIT, Central Circle-01, New Delhi vs. Spicejet Limited, Gurgaon

Bench: Sh. G.S.Pannu, Hon’Ble & Sh. Anubhav Sharma

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

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

In the result, the appeal of the assessee is allowed

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

have heard the rival submissions and perused the materials available on record. It is not in dispute that the assessee qualifies as a non-resident during the year under consideration. The assessee, an Indian National was deputed from 01.01.2014 to 31.12.2017 on a long term assignment to Akzo Nobel Decorative ... assessee filed his return of income for the Asst Year 2018-19 on 06.08.2018 u/s 139(1) of the Act in the status of Non-Resident , claiming the salary received in India for services rendered outside India to be exempted from tax in India, in accordance with section

Spicejet Ltd, Gurgaon vs. DCIT, Central Circle-1, New Delhi

ITA 1803/DEL/2022[2018-19]Status: DisposedITAT Delhi23 Aug 2023AY 2018-19

Bench: Sh. G.S.Pannu, Hon’Ble & Sh. Anubhav Sharma

ITA 1802/DEL/2022[2017-18]Status: DisposedITAT Delhi23 Aug 2023AY 2017-18

Spicejet Ltd, Gurgaon vs. DCIT, Central Circle-1, New Delhi

Bench: Sh. G.S.Pannu, Hon’Ble & Sh. Anubhav Sharma