“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

Michael Graves Design Group Inc., Usa vs. DCIT, Circle- 2(2)(1), Intl. Taxation, New Delhi

In the result, the appeals of the assessee for both the AYs i

ITA 6007/DEL/2018[2015-16]Status: DisposedITAT Delhi18 Jul 2023AY 2015-16

Bench: Shri G.S. Pannu, Hon’Ble & Ms. Astha Chandraasstt. Year: 2014-15 & Asstt. Year: 2015-16

For Appellant: Shri Niraj Seth, Advocate &For Respondent: Shri Sanjay Kumar, Sr. DR

Section 115ASection 143(3)

developing a residential project in India and had availed architectural services from three non- resident entities located at Singapore and paid fees to these non-resident entities in consideration thereof. The Tribunal held that conditions of Article 12(4) of the India-Singapore DTAA were not fulfilled and the said ... project by any other entity. Similar is the scope of work and terms and conditions in respect of Web Structures Pte Ltd, another non-resident entity. 11. Thus, from the nature of services provided by the non-resident entities and the terms and conditions under which it was provided

Michael Graves Design Group Inc., Usa vs. DCIT, Circle- 2(2)(1), Intl. Taxation, New Delhi

In the result, the appeals of the assessee for both the AYs i

ITA 7683/DEL/2017[2014-15]Status: DisposedITAT Delhi18 Jul 2023AY 2014-15

Bench: Shri G.S. Pannu, Hon’Ble & Ms. Astha Chandraasstt. Year: 2014-15 & Asstt. Year: 2015-16

For Appellant: Shri Niraj Seth, Advocate &For Respondent: Shri Sanjay Kumar, Sr. DR

Section 115ASection 143(3)

DCIT Central Circle-01, Delhi vs. Spicejet Ltd., Delhi

In the result, appeal of the Revenue is dismissed

ITA 881/DEL/2022[2014-15]Status: DisposedITAT Delhi17 Jul 2023AY 2014-15

Bench: Sh. Saktijit Deydr. B. R. R. Kumar

For Appellant: Sh. Tarandeep Singh, AdvFor Respondent: Sh. Vizay Vasanta, CIT DR

Section 37(1)Section 40

Finance Bill, 1995, it appears that after the insertion of section 10(15A) in the statute, it was experienced by the Government that the non-resident companies were receiving Spicejet Ltd. payments in consideration of facilities or services provided/rendered by the lessors such as training to the pilots or other

DCIT Central Circle-01, Delhi vs. Spicejet Ltd., Haryana

In the result, appeal of the Revenue is dismissed

ITA 880/DEL/2022[2013-14]Status: DisposedITAT Delhi17 Jul 2023AY 2013-14

Bench: Sh. Saktijit Deydr. B. R. R. Kumar

For Appellant: Sh. Tarandeep Singh, AdvFor Respondent: Sh. Vizay Vasanta, CIT DR

Section 37(1)Section 40

Brahma Center Development Pvt. Ltd., New Delhi vs. ACIT Circle-5(1), New Delhi

In the result, the appeal of the assessee is allowed

ITA 4343/DEL/2019[2014-15]Status: DisposedITAT Delhi17 Jul 2023AY 2014-15

Bench: Sh. Saktijit Deydr. B. R. R. Kumar

For Appellant: Sh. Salil Kapoor, AdvFor Respondent: Sh. P. Praveen Sidharth, CIT DR

assessee was required to pay the purchase consideration in installments to HSIIDC towards acquisition of land. In this regard, the company raised funds from non-resident shareholders/investors outside India through CCDs bearing interest cost of 12% per annum to fulfill its payment obligation towards HSIIDC. The amount of interest payable

Ameriprise India Pvt. Ltd., New Delhi vs. DCIT, New Delhi

In the result, the appeal of the assessee is allowed

ITA 1198/DEL/2016[2011-12]Status: DisposedITAT Delhi17 Jul 2023AY 2011-12

Bench: Sh. Saktijit Deydr. B. R. R. Kumar

For Appellant: Sh. Kamal Sawhney Adv. &For Respondent: Sh. P. Praveen Sidharth, CIT DR

Section 143(3)Section 234CSection 271(1)(c)Section 37(1)

under section 37(1) of the Act on account of lease rental payments, amounting to Rs 3,244,083, paid by Appellant to a non-resident party. 2. Ground No. 2- Addition on account of pre-operative expenses. 2 Ameriprise India Pvt. Ltd. 2.1 On the facts and circumstances ... reproduced as under: “22. Corporate Issues 22.1 Disallowance of rentals, amounting to Rs. 3,244,083, paid by AIPL to a non-resident The assessing officer pointed out that the assessee had claimed an expense of Rs. 32,44,083/- on lease rent payment for property taken on rent

Planetcast International Pte.Ltd, Singapure vs. ACIT, Circle1(1)(1) International Taxation, Delhi

In the result, appeal is partly allowed

ITA 1832/DEL/2022[2019-20]Status: DisposedITAT Delhi14 Jul 2023AY 2019-20

Bench: Shri Saktijit Dey, Vice- & Shri Dr. B.R.R. Kumar

For Appellant: Sh. Ajay Vohra, Sr. Advocate &For Respondent: Sh. Vizaya Vasanta, CIT-DR

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

Article 12(3) of India- Singapore Double Taxation Avoidance Agreement (DTAA). 4. Briefly, the facts relating to this issue are, the assessee is a non-resident corporate entity and a tax resident of Republic of Singapore. As stated, principal activities of the assessee are that of satellite telecommunication network operations ... case of Asia Satellite Telecommunications Co. Ltd. Vs. DIT, reported in (2011) 332 ITR 340. It was the case in which the assessee a non-resident was engaged in satellite communication, having control of satellites. The assessee would provide use of transponder facility on satellite to the television companies outside

Girish Mohan, Haryana vs. ACIT, Circle-1(1), Gurgaon

In the result, appeal of the assessee is partly allowed

ITA 8816/DEL/2019[2016-17]Status: DisposedITAT Delhi14 Jul 2023AY 2016-17

Bench: Shri C.M. Garg & Shri M. Balaganeshgirish Mohan, Vs. Acit, 725, Udyog Vihar, Phase-2, Circle-1(1), Gurgaon Gurgaon (Appellant) (Respondent) Pan:Aaqpm4017P Assessee By : Sh. P. C. Yadav, Adv Sh. Raghav Sharma, Ca Revenue By: Sh. Vipul Kashyap, Sr. Dr Date Of Hearing 19/04/2023 Date Of Pronouncement /07/2023

For Appellant: Sh. P. C. Yadav, AdvFor Respondent: Sh. Vipul Kashyap, Sr. DR

Section 54F

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “B”: NEW DELHI BEFORE Shri C.M. Garg, Judicial Member and Shri M. Balaganesh, Accountant

M/S. Bombardier Transportation Gmbh, New Delhi vs. DCIT, New Delhi

In the result, the appeal is allowed, as indicated above

ITA 1390/DEL/2015[2010-11]Status: DisposedITAT Delhi14 Jul 2023AY 2010-11

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Deyassessment Year: 2010-11

Section 144C(13)

assessee in India under Article 5 of India – Germany Double Taxation Avoidance Agreement (DTAA). 3. Briefly the facts are, the assessee is a non-resident corporate entity incorporated under the laws of Germany and a tax resident of Germany. As stated by the Assessing Officer, the assessee is engaged ... submitted, in terms of Article 5(1) of the treaty, the essential condition for determination of fixed place PE is that business of the non-resident is carried out through the said PE. He submitted, the Revenue has failed to demonstrate that this essential condition is satisfied. To vindicate

Satishkumar Keshavlal, Mumbai vs. ITO (It)-3(1)(1), Mumbai

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

ITA 1065/MUM/2023[2012-13]Status: DisposedITAT Mumbai13 Jul 2023AY 2012-13

Bench: Shri S. Rifaur Rahman, Hon'Ble & Shri Rahul Chaudhary, Hon'Blesatish Kumar Keshavlal V. Ito (International Taxation)-3(1)(1) 18Th Floor C/O. H.C Mehta 7 Associates Air India Building, Nariman Point 26, Juhu Supreme Shopping Centre Mumbai – 400 021 Gulmohur Cross Road No. 9 Juhu, Mumbai - 400049 Pan: Auqpk4033R (Appellant) (Respondent)

Section 133(6)Section 143(2)Section 148Section 69

condone the delay and proceed to dispose the appeal on merits. 3. Brief facts of the case are, assessee is a Non-resident and has not filed the return of income for the A.Y. 2011-12. Based on the information available on the NMS module of i-taxnet, ITD system

Shri. Bhupendra Sitapchand Zaveri, Mumbai vs. ITO, It, Ward- 4(3)(1), Mumbai

In the result, the present appeal preferred by the Assessee is 10

ITA 2052/MUM/2022[2018-19]Status: DisposedITAT Mumbai13 Jul 2023AY 2018-19

For Appellant: Shri. Ketan VajaniFor Respondent: Shri. Anil Sant

Section 143(3)Section 144C(13)Section 144C(5)Section 50C

stated as underreporting of income much less as misreporting of income by the appellant.” The relevant facts in brief are that the Appellant, a non-resident 3. Indian, filed return of income for Assessment Year 2018-19 on 21/07/2019 declaring total income of INR 138,05,850/-. The case

Tata Teleservices (Maharashtra)Ltd., Navi Mumbai vs. Pr CIT -8, Mumbai

In the result, the appeal by the assessee is allowed

ITA 1308/MUM/2021[2015-16]Status: DisposedITAT Mumbai13 Jul 2023AY 2015-16

Bench: Shri G.S. Pannu & Shri Sandeep Singh Karhail

For Appellant: Shri Hiten ChandeFor Respondent: Shri Biswanath Das

Section 253Section 263

fact that the MTM loss recognized on account of derivative contract in nature of CCRIS entered by TTML to hedge against the foreign currency non-resident loan ('FCNR loan') liability is allowable in accordance with the provisions of the Act. All the above grounds are without prejudice to each other ... recognised as income. During the year under consideration, the assessee has entered into a derivative contract with IndusInd Bank to hedge against Foreign Currency Non-Resident (“FCNR”) loan liability which is largely taken for the purpose of supplementing the working capital needs, repayment of existing debts, strengthening the existing

Accenture Solutions P Ltd (Asol), Mumbai vs. Addl/Jt/ Dy/CIT/Asstt/ITO, National Faceless Assessment Centre, Delhi & the Dy CIT, Circle-14(1)(1), Mumbai

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

ITA 1255/MUM/2021[2016-17]Status: DisposedITAT Mumbai13 Jul 2023AY 2016-17

Bench: Shri Amit Shukla & Shri Amarjit Singhaccenture Solutions Vs. Additional/Joint/Deputy/ Private Limited (‘Asol’) Assistant Commissioner Plant 3, Godrej & Boyce Of Income Tax/Income- Complex, Phirojshah Tax Officer, National Nagar, Vikhroli West, Facelless Assessment Off L.B.S Marg, Centre, Delhi Mumbai – 400079 The Dcit, Circle 14(1)(1) स्थायी लेखा सं./जीआइआर सं./Pan/Gir No: Aaach3235M Appellant .. Respondent Appellant By : Nishant Thakkar/ Hiten Chande/ Ms. Jasmin Amalsadvala Respondent By : Azhar Zain Vayal Parambath Date Of Hearing 22.05.2023 Date Of Pronouncement 13.07.2023 आदेश / O R D E R Per Amarjit Singh (Am): This Appeal Filed By The Assesse Is Directed Against The Order Passed By The Ao (National Assessment Centre) Mumbai- 2, Dated 18.03.2021 For A.Y. 2016-17 As Per The Direction Of The Drp Issued U/S 144C (5) Of The Act. The Assessee Has Raised The Following Grounds Before Us: “On The Facts & Circumstances Of The Case & In Law, The Learned Ao Transfer Pricing Officer (Tpo), Based On The Directions Of The Hon'Ble Drp Has: General Ground 1. Erred In Assessing The Total Income Of The Appellant At Rs.2888,33,73,016 Against A Total Income Of Rs.2179,39,30,620 As Reported By The Appellant In Its Revised Return Of Income & Determining A Demand Of Rs.2186,98,55,847 Payable By The Appellant.

For Appellant: Nishant Thakkar/ Hiten Chande/For Respondent: Azhar Zain Vayal Parambath

Section 144CSection 92CSection 92C(3)

arises as a consequence of the order of the Transfer Pricing Officer passed under sub-section (3) of section 92CA; and (ii) (ii) any non-resident not being a company, or any foreign company.” After referring the aforesaid provisions the ld. Counsel contended that since the order

Shri Sanjay Mukund Paithankar, Mumbai vs. Income Tax Officer, Ward 3(3)(1), Mumbai

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

ITA 1141/MUM/2023[2017-2018]Status: DisposedITAT Mumbai12 Jul 2023AY 2017-2018

Bench: Shri Aby T Varkey & Shri Amarjit Singhshri Sanjay Mukund Vs. Income Tax Officer, Ward Paithankar, C/O Warde & – 3(3)(1), Room No. 1631, Shah, Chartered 16Th Floor, Air India Accountants, 1201, Building, Nariman Point, Regent Chambers, J.B. Mumbai, Maharashtra Marg, Nariman Point, 400 021 Mumbai – 40021 स्थायी लेखा सं./जीआइआर सं./Pan/Gir No: Arwpp8732F Appellant .. Respondent

For Appellant: Hitesh ShahFor Respondent: None

Section 148Section 250(6)Section 56Section 69A

case.” P a g e | 2 Shri Sanjay Mukund Paithankar Vs.ITO-3(3)(1) 2. Fact in brief is that the assessee is a non-resident doctor by profession. The assessee has not filed return of income for assessment year 2017-18. On the basis of information collected ... appeal before the ld. CIT(A). 5. During the course of appellate proceedings before us the ld. Counsel submitted that assesse is a non-resident and a doctor by profession who has been practising in UAE for the last 3 decades. The ld. Counsel submitted that in response

Rajasthan Transmat Private Limited, Jaipur vs. Income Tax Officer, Ward 7(2), Jaipur

In the result, the appeal of the assessee partly allowed

ITA 165/JPR/2023[2012-13]Status: DisposedITAT Jaipur11 Jul 2023AY 2012-13

Bench: SHRI SANDEEP GOSAIN (Judicial Member), DR MEETHA LAL MEENA (Accountant Member)

For Appellant: Mrs. Prabha Rana, AR and Shri Vinod Kumar, AdvocateFor Respondent: Mrs. Runi Pal, Addl. CIT-DR

Section 133(6)Section 142(1)Section 143(2)

JAIPUR "For all the above reasons, we find that in the present facts issue of shares at a premium by the Petitioner to its non-resident holding company does not give rise to any income from an admitted International Transaction. Thus, no occasion to apply Chapter

Assistant Commissioner of Income Tax (It)-4(2)(2), Mumbai vs. M/S Star Cruise Management Ltd, Mumbai

ITA 1296/MUM/2023[2016-2017]Status: DisposedITAT Mumbai10 Jul 2023AY 2016-2017

For Appellant: Shri Madhur AgarwalFor Respondent: Shri Anil Sant

Section 144Section 144C(3)Section 5(2)(a)Section 9(1)(i)

that the assessee's Indian group company, Star Travel (India) Services Pvt Ltd ("SCITSPL"), habitually secures orders in India, mainly or wholly for the non-resident assessee and is controlled by, or subject to the same common control, as that non- resident assessee and hence all income accruing or arising

Assistant Commissioner of Income Tax (It)-4(2)(2), Mumbai vs. M/S Star Cruise Management Ltd., Mumbai

ITA 1295/MUM/2023[2017-2018]Status: DisposedITAT Mumbai10 Jul 2023AY 2017-2018

For Appellant: Shri Madhur AgarwalFor Respondent: Shri Anil Sant

Section 144Section 144C(3)Section 5(2)(a)Section 9(1)(i)

Mr Jerry John Mendonca, Mumbai vs. Income Tax Officer-Ward-23(2)(1), Mumbai

In the result, the appeal filed by the assessee is allowed for statistical purposes with above terms

ITA 1197/MUM/2023[2011-12]Status: DisposedITAT Mumbai10 Jul 2023AY 2011-12

Bench: Shri Om Prakash Kant () & Ms. Kavitha Rajagopal () Assessment Year: 2011-12 Mr. Jerry John Mendonca, Ito Ward-23(2)(1), Flat No. 102, Concrete Heritage, Aayakar Bhavan, Maharshi 1St Floor, Waroda Road, Bandra Vs. Karve Rd. New Marine Lines, (W), Mumbai-400050. Churchgate, Mumbai-400020. Pan No. Armpm 1129 P Appellant Respondent

For Appellant: Kinjal BhutaFor Respondent: Ms. Indira Adakil, DR

Section 142(1)Section 144Section 148

assessee was not aware about disposal of the appeal by the Ld. CIT(A). Further, it is stated that the assessee being in a non-resident, he was not aware of the Income-tax appellate proceedings particularly the faceless appeal procedures. In view of the reasons for delay explained

Reliance Commercial Dealers Ltd., Mumbai vs. CIT (A)-58, Mumbai

In the result, both the appeals of the assessee are allowed

ITA 7828/MUM/2019[2016-17]Status: DisposedITAT Mumbai10 Jul 2023AY 2016-17

Section 115ASection 195Section 195ASection 206ASection 248Section 90

u/s.195, therefore, it would relevant to incorporate the provision of Section 195 which reads as under:- "(1) Any person responsible for paying to a non-resident, not being a company, or to a foreign company, any interest (not M/s. Reliance Commercial Dealers Ltd. being interest referred to in section 194LB ... rates in force (2) Where the person responsible for paying any such sum chargeable under this Act (other than salary) to a non-resident considers that the whole of such sum would not be income chargeable in the case of the recipient, he may make an application in such form

Reliance Commercial Dealers Ltd., Mumbai vs. CIT (A)-58, Mumbai

In the result, both the appeals of the assessee are allowed

ITA 7827/MUM/2019[2016-17]Status: DisposedITAT Mumbai10 Jul 2023AY 2016-17

Section 115ASection 195Section 195ASection 206ASection 248Section 90