“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, New Delhi vs. M/S Alnoor Exports, New Delhi

In the result, the appeal of the Revenue is dismissed

ITA 4595/DEL/2015[2011-12]Status: DisposedITAT Delhi25 Jul 2023AY 2011-12

Bench: Shri Challa Nagendra Prasad & Dr. B.R.R. Kumarआ.अ.सं/.I.T.A No. 4595/Del/2015 िनधा"रणवष"/Assessment Year: 2011-12 Acit, M/S. Alnoor Exports, बनाम C/O. M/S. Rohit Malik & Vs. Associates, Circle : 32 (1) 1403, Chiranjeev Tower, New Delhi. 43 - Nehru Place, New Delhi – 110 019. Pan No. Aacfa2599N अपीलाथ"/ Appellant ""यथ"/ Respondent

For Appellant: Advocate

Section 195

case of Welspring Universal Vs. JCIT reported in [(2015) 153 ITD 496] wherein it has been held that commission paid by the assessee to non-resident agents for procuring export orders was not chargeable to tax in the hands of the assessee. Assessee was not liable to deduct

Rita N Patwardhan, Nasik vs. DCIT, Circle 1(1)(1), International Taxation, New Delhi

In the result, appeal is allowed

ITA 2537/DEL/2022[2020-21]Status: DisposedITAT Delhi24 Jul 2023AY 2020-21

Bench: Shri G.S. Pannu & Shri Saktijit Dey, Vice-Assessment Year: 2020-21

For Appellant: NoneFor Respondent: Sh. Sanjay Kumar, Sr. DR

Section 143(1)Section 154Section 90Section 90(2)

procedural in nature and cannot override provision of Tax Treaties between two countries.” 3. Briefly, the facts are, the assessee is a non-resident individual. In the assessment year under dispute, the assessee had filed her return of income declaring total income of Rs.18,28,790/-. In the said return

Relx Inc, Gurgaon vs. ITO Ward International Taxation-3(1)(2), Delhi

In the result, the appeal of the assessee is allowed

ITA 1085/DEL/2022[2017-18]Status: DisposedITAT Delhi24 Jul 2023AY 2017-18

Bench: Shri G.S. Pannu, Hon’Ble & Ms. Astha Chandraasstt. Year: 2017-18

For Appellant: Shri Ravi Sharma, AdvocateFor Respondent: Shri Vizay Basanta, CIT- DR

Section 142(1)Section 143(2)Section 143(3)Section 263Section 9Section 9(1)(vii)

available technical knowledge to the recipient and hence are not taxable in India.” 3. Briefly stated, the facts are that the assessee is a Non-Resident Company. It is a tax resident of USA. It filed its return for AY 2017-18 on 30.11.2017 declaring total income

Ramanan Sivaraman Eranath Vengali, Mumbai vs. Income Tax Officer Int Tax Ward 2(2)(1), Mumbai

Accordingly, the addition of INR 97,32,625/- made by the Assessing Officer is deleted and Ground No. 2 to 4 are allowed in terms of the aforesaid

ITA 807/MUM/2023[2015-16]Status: DisposedITAT Mumbai21 Jul 2023AY 2015-16

For Appellant: Shri Rajendra Kumar JainFor Respondent: Shri Anil Sant

Section 143(3)Section 144C(13)Section 144C(5)Section 148Section 56

drop or all Grounds of appeal at the time of the appeal proceedings.” The relevant facts in brief are that the Appellant, a non-resident 4. individual, did not file return of income for the Assessment Year 2015-16 as according to the Appellant there was no income liable

Royal Bombay Yatch Club, Mumbai vs. ITO Ward 17(3)(2), Mumbai

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

ITA 1602/MUM/2023[2017-18]Status: DisposedITAT Mumbai21 Jul 2023AY 2017-18

Section 143(3)Section 41(1)

respond from physical to migration to new faceless scheme. Apart from that, assessee has also challenged the following additions:- a. Royalty received from non-resident Rs. 5,12,75,575. It may be noted that in the first place no royalty at all is received from non-resident or from ... considered various submissions which is evident from the fact that he has made huge addition on account of ‘Royalty’ received from non-resident of Rs.5,12,75,575/-, whereas the fact of the matter is that no such ‘Royalty’ has been received at all. He submitted that in the interest

Chkor L Doshi, Mumbai vs. Dy CIT CC-8(3), Mumbai

In the result, appeals filed by the assessee for the A

ITA 5625/MUM/2019[2013-14]Status: DisposedITAT Mumbai21 Jul 2023AY 2013-14

Bench: Shri Kuldip Singh, Hon’Ble & Shri S. Rifaur Rahman, Hon'Ble

Section 132Section 143(1)Section 143(2)Section 153A

with Lennox Overseas Inc. Total 4,00,36,091/- 8. On enquiry assessee has submitted as under: - 'Mr. Chakor L Doshi ('the Assessee') was Non-Resident under Income Tax Act as well as under FEMA from the year 1994. He continued to be Non-Resident under I.T. Act till ... Ordinary Resident (RNOR) till AY 2003-04. However, he continues to be 'Non Resident' under FEMA till date. During the period when he was Non-Resident/RNOR, the Assessee earned income in foreign countries from various sources such as Commission, Fees, Interest, etc Further the Assessee was, and continues

Chakor L Doshi, Mumbai vs. DCIT, CC8 (3), Mumbai

In the result, appeals filed by the assessee for the A

ITA 5624/MUM/2019[2011-12]Status: DisposedITAT Mumbai21 Jul 2023AY 2011-12

Bench: Shri Kuldip Singh, Hon’Ble & Shri S. Rifaur Rahman, Hon'Ble

Section 132Section 143(1)Section 143(2)Section 153A

Chakor L Doshi, Mumbai vs. Dy. CIT8(3), Mumbai

In the result, appeals filed by the assessee for the A

ITA 1995/MUM/2019[2009-10]Status: DisposedITAT Mumbai21 Jul 2023AY 2009-10

Bench: Shri Kuldip Singh, Hon’Ble & Shri S. Rifaur Rahman, Hon'Ble

Section 132Section 143(1)Section 143(2)Section 153A

Chakor L Doshi, Mumbai vs. Dy. CIT8(3), Mumbai

In the result, appeals filed by the assessee for the A

ITA 1994/MUM/2019[2008-09]Status: DisposedITAT Mumbai21 Jul 2023AY 2008-09

Bench: Shri Kuldip Singh, Hon’Ble & Shri S. Rifaur Rahman, Hon'Ble

Section 132Section 143(1)Section 143(2)Section 153A

Spark44 Demand Creation Partners Private Limited, Mumbai vs. Assistant Commissioner of Income Tax, Centralized Processing Cell, Ghaziabad

In the result, all the ground of appeal of the assesse is allowed for statistical purposes

ITA 1294/MUM/2023[2016-2017]Status: DisposedITAT Mumbai20 Jul 2023AY 2016-2017

Bench: Shri Aby T Varkey & Shri Amarjit Singhspark44 Demand Creation Vs. Assistant Commissioner Partners Private Limited Of Income Tax, 91 Springboard Business Centralized Processing Hub Pvt. Ltd., 175, Cell-Tds Kagalwala House, 2Nd Tds Cpc, Aayakar Floor, Vidyanagri Marg, Bhawan, Sector -3, Kalina, Santacruz (E) Vaishali, Ghaziabad, Mumbai – 400098 Up- 401010 स्थायी लेखा सं./जीआइआर सं./Pan/Gir No: Aawcs3113M Appellant .. Respondent [ Appellant By : Nimit Vora Respondent By : Ram Krishna Kedia Date Of Hearing 05.07.2023 Date Of Pronouncement 20.07.2023 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. Cit(A) Nfac, Dated 17.02.2023 For A.Y. 2016-17. The Assessee Has Raised The Following Grounds Before Us: “1. The Ld. Cit(A) Has Erred In Upholding The Action Of The Assistant Commissioner Of Income Tax, Centralized Processing Cell Tds (Hereinafter Referred To As 'Ld. Ao') In Determining Tds Liability @ 20% On Amount Payable To Non-Resident Payee Towards Inter-Company Management Fees By Applying Provisions Of Section 206Aa R.W.S. 195 Of The Act In The Absence Of Pan Of Non-Resident Payee. 2. The Id. Cit(A) Has Erred In Not Appreciating The Following:

For Appellant: Nimit VoraFor Respondent: Ram Krishna Kedia

Section 115A(1)(b)Section 154Section 195Section 200ASection 206A

Assistant Commissioner of Income Tax, Centralized Processing Cell TDS (hereinafter referred to as 'ld. AO') in determining TDS liability @ 20% on amount payable to non-resident payee towards inter-company management fees by applying provisions of section 206AA r.w.s. 195 of the Act in the absence of PAN of non ... ACIT, CPC, TDS 2.1 In terms of India-UK DTAA, tax was not required to be deducted in respect of services availed from the non-resident payee as no technical services were made available to the appellant. 2.2 The provisions of India UK DTAA, being more beneficial, no tax should

ACIT (It) 2(2)(2), Mumbai vs. The Hongkong and Shanghai Banking Corp Ltd, Mumbai

ITA 2190/MUM/2022[2014-15]Status: DisposedITAT Mumbai20 Jul 2023AY 2014-15

For Appellant: Shri Porus KakaFor Respondent: Shri Anil Sant

Section 195Section 2Section 201Section 201(1)Section 40

above grounds be set aside and that of the Assessing Officer restored.” During the year under consideration the Assessee, a non-resident 4. banking organization incorporated/registered in Hong Kong, was engaged in the business of banking in India through its branch in India in accordance with the Banking Regulation

Bhandari Gold and Jewellers Private Limited, Mumbai vs. CIT (Appeal), NFAC - Delhi

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

ITA 1619/MUM/2022[2017-2018]Status: DisposedITAT Mumbai19 Jul 2023AY 2017-2018

Bench: Shri S. Rifaur Rahman, Hon'Ble & Shri Sandeep Singh Karhail, Hon'Bledcit – 6(1)(2) V. M/S. Bandari Gold & Jewellers Pvt. Ltd., 407, Bussaudyog Bhavan Room No. 538B, 5Th Floor Tokersi, Jivraj Road, Sewree Aayakar Bhavan, M.K. Road Mumbai - 400015 Mumbai - 400020 Pan: Aadcb1291J (Appellant) (Respondent)

Section 143(3)Section 68

persons or that any part of the share capital represented the company's own income from undisclosed sources. It wasnobody's case that the non-resident Indian company was a bogus or non-existent company or that the amount subscribed by the company by way of share subscription

Cy. CIT 6(1) (2), Mumbai vs. M/S. Bhandari Gold & Jewellers Pvt. Ltd, Mumbai

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

ITA 1564/MUM/2022[2017-18]Status: DisposedITAT Mumbai19 Jul 2023AY 2017-18

Section 143(3)Section 68

The ACIT(Intel. Taxn.), Rajkot vs. Smt. Chandrika Bharat Ruparel, Rajkot

In the result, the appeal of the Department is dismissed

ITA 151/RJT/2021[2012-13]Status: DisposedITAT Rajkot19 Jul 2023AY 2012-13

Bench: Ms. Annapurna Gupta (Accountant Member), Shri Siddhartha Nautiyal (Judicial Member)

For Appellant: Shri Mehul Ranpura, A.RFor Respondent: Shri Shramdeep Sinha, Sr. D.R

Section 250

ACIT vs. Shri Bharat Champaklal Ruparel & ACIT vs. Chandrika Bharat Ruparel 7. In appeal, the assessee submitted that the assessee is a non-resident Indian, who is settled in Dubai since more than 35 years. It was submitted that all the aforesaid deposits were on account of transfer/remittance made ... Rule 46A of the Income Tax Rules. It is observed that the aforesaid additional evidence could not be filed because the assessee is a non-resident Indian and settled in Dubai by for the last 35 years. Further, a perusal of the documentary evidence establishes the source of deposits made

The ACIT(International Taxation, Rajkot vs. Shri Bharat Champaklal Ruparel, Rajkot

In the result, the appeal of the Department is dismissed

ITA 150/RJT/2021[2012-13]Status: DisposedITAT Rajkot19 Jul 2023AY 2012-13

Bench: Ms. Annapurna Gupta (Accountant Member), Shri Siddhartha Nautiyal (Judicial Member)

For Appellant: Shri Mehul Ranpura, A.RFor Respondent: Shri Shramdeep Sinha, Sr. D.R

Section 250

Madhurittu Puri, United Kingdom vs. DCIT, Circle International Taxation 2(2)(2), New Delhi

In the result, the appeal of the assessee is allowed

ITA 3063/DEL/2022[2019-20]Status: DisposedITAT Delhi18 Jul 2023AY 2019-20

Bench: Shri G.S. Pannu, Hon’Ble & Ms. Astha Chandraasstt. Year: 2019-20

For Appellant: Shri Sanjiv Sapra, FCAFor Respondent: Shri Vizay Vasanta, CIT- DR

Section 142ASection 143(3)Section 144Section 234DSection 270A(2)

Paper Book for AY 2019-20. His case was also selected for complete scrutiny by CASS. Her brother is also a non-resident Indian and had earned income from capital gain on sale of the same residential house in which he had 1/3rd share. The Ld. AO noted that this

Bushra Javed, New Delhi vs. ACIT, Circle Int. Taxation 2(1)(2), New Delhi

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

ITA 2003/DEL/2022[2018-19]Status: DisposedITAT Delhi18 Jul 2023AY 2018-19

Bench: Shri G.S. Pannu, Hon’Ble & Ms. Astha Chandraasstt. Year: 2018-19 Bushra Javed, Vs. Acit, D-112, Circle Int. Taxation 2 Lower Ground Floor, (1)(1) Panchsheel Enclave, New Delhi. New Delhi-110 017 Pan Afgpj3907C (Appellant) (Respondent)

For Appellant: Shri Manish, CAFor Respondent: Shri Vizay Vasanta, CIT- DR

Section 143(3)Section 144CSection 48

account of cost of acquisition with indexation and cost of improvement with indexation. 3. Briefly stated, the facts are that the assessee is a non-resident individual. She resides in London with her husband Mr. Khalid Hussain Kureshi. The assessee filed her revised return of income

ACIT Circle-2(1), Ghaziabad vs. Manoj Raizada, Ghaziabad

In the result, the appeal of the Revenue and Cross Objection of the assessee both are dismissed

ITA 5/DEL/2021[2017-18]Status: DisposedITAT Delhi18 Jul 2023AY 2017-18

Bench: Shri G.S. Pannu, Hon’Ble & Ms. Astha Chandraasstt. Year: 2017-18 & Co No. 28/Del/2021 Asstt. Year: 2017-18

For Appellant: Shri Mayank Choudhary, AdvocateFor Respondent: Shri Sanjay Kumar, Sr. DR

Section 37(1)Section 46ASection 9

this regard. But on page 7 adverse inference was drawn stating that the assesee has neither withheld taxes on payment to non-resident nor furnished copies of Form15CA required to be filed in terms of Rule 37BB of the Rules. 4.1 In his application for admittance of additional evidence ... explain the reasons for not withholding any tax on “commission” payments made by him. The assessee replied thus: & CO No. 28/Del/2021 “.... The payee is non-resident in India and does not have any permanent establishment (PE) in India. He searches for the prospective customers for the payer in Australia

DCIT, Circle-1(1), Gurgaon vs. Apca Power Private Limited, Gurgaon

In the result, the appeal of the Revenue stands allowed for statistical purposes

ITA 9303/DEL/2019[2015-16]Status: DisposedITAT Delhi18 Jul 2023AY 2015-16

Bench: Shri Shamim Yahya & Shri Yogesh Kumar Us[Assessment Year: 2015-16]

Section 143(3)Section 154Section 56(2)Section 56(2)(viib)

justified in deleting the penalty levied us 271(1)(c) of the Act holding that Sh. Vivek Choudhary was non-resident during the year in which shares were issued. As a matter of fact that Sh. Vivek Choudhary himself confirmed on the noting sheet that he was resident during ... records. We note that this penalty has been levied on the addition in quantum regarding share premium received by the assessee from a non-resident. The Ld. CIT(A) has deleted the addition by observing that these provisions do not apply to non-residents as such he deleted the penalty

Apca Power Private Limited, Gurgaon vs. DCIT, Circle-1(1), Gurgaon

In the result, the appeal of the Revenue stands allowed for statistical purposes

ITA 8184/DEL/2019[2015-16]Status: DisposedITAT Delhi18 Jul 2023AY 2015-16

Bench: Shri Shamim Yahya & Shri Yogesh Kumar Us[Assessment Year: 2015-16]

Section 143(3)Section 154Section 56(2)Section 56(2)(viib)