“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

Shri Ramchandra Dhopeshwarkar, Mumbai vs. Int Tax Ward 2(1)(1), Mumbai

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

ITA 913/MUM/2023[2012-13]Status: DisposedITAT Mumbai13 Jun 2023AY 2012-13

Bench: Shri Amarjit Singh & Shri Sandeep Singh Karhailshri Ramchandra Vs. International Tax Dhopeshwarkar, 404/11J Ward 2(1)(1) Neelam Nagar Chs, Room No. 1724, 17Th Phase Ii, Gavan Pada, Floor, Air India Building, Mulund (E), Nariman Point, Mumbai – 400081 Mumbai - 400021 स्थायी लेखा सं./जीआइआर सं./Pan/Gir No: Afrpd9868F Appellant .. Respondent Appellant By : None Respondent By : Soumendu Kumar Das Date Of Hearing 08.06.2023 Date Of Pronouncement 13.06.2023 आदेश / O R D E R Per Amarjit Singh (Am): This Appeal Is Filed By The Assesse Against The Order Passed By The Ld. Cit(A)-56, Mumbai, Dated 15.01.2023 For A.Y. 2012-13. The Assessee Has Raised The Following Grounds Before Us: “1. On The Facts & In The Circumstances Of The Case, The Order Of The Commissioner Of Income Tax (Appeals)-56, Mumbai, Is Bad In Law On Various Grounds Apart From Being Passed In Gross Violation Of Principles Of Natural Justice. 2. The Commissioner (Appeals) Erred In Dismissing The Appeal In Limine On The Alleged Ground Of Delay In Filing The Appeal Without Giving Any Opportunity & Without Appreciating The Fact There Is Delay In Filing The Appeal Is Factually Incorrect. 3. On The Facts & Circumstances Of The Case & In Law The Cit(A) Has Erred In Not Dealing With The Grounds Of Appeal Raised Before Him Despite Receiving The Remand Report From The Ld. Ao.

For Appellant: NoneFor Respondent: Soumendu Kumar Das

Section 115BSection 144Section 148Section 69A

income tax department had issued notice to freeze bank accounts in respect of outstanding demand. The assesse also explained that he is a non-resident and the account number mentioned in the assessment order is categorised as NRE (Non- resident External Account) by the bank. As per the banking norms

M/S Tricon Global Services Private Limited, Mumbai vs. Dy. Commissioner of Income Tax, CPC, Bengaluru

In the result, the appeal of the assessee is dismissed

ITA 2985/MUM/2022[2020-20]Status: DisposedITAT Mumbai13 Jun 2023AY 2020-20

Bench: Shri Om Prakash Kant () & Ms. Kavitha Rajagopal () Assessment Year: 2020-2021 M/S Tricon Global Services Dy. Cit, Cpc Private Limited, Bengaluru-560100 701, Dlh Park, S.V. Road, Off Vs. Mtnl, Goregaon (West), Mumbai-400062. Pan No. Aabco 0321 L Appellant Respondent

For Appellant: Mr. Madhur Agrawal, ARFor Respondent: Ms. Richa Gulati, DR

Section 10(34)Section 115Section 40Section 90(2)

domestic dividend is declared, distributed or paid by a domestic dividend is declared, distributed or paid by a domestic company to a non non-resident shareholder(s), which attracts resident shareholder(s), which attracts [Type here] M/s Tricon Global Services Pvt. Ltd. M/s Tricon Global Services Pvt. Ltd. 5 Additional ... rate t at the rate of tax applicable to the non of tax applicable to the non-resident shareholder(s) as resident shareholder(s) as specified in the relevant DTAA with reference to such specified in the relevant DTAA with reference to such specified in the relevant DTAA with reference

Nuovo Pignone International Srl, Gurgaon vs. DCIT, Circle-2(2)(2), Delhi

In the result, appeal is allowed as indicated above

ITA 999/DEL/2022[2018-19]Status: DisposedITAT Delhi13 Jun 2023AY 2018-19

Bench: Shri G.S. Pannu & Shri Saktijit Deyassessment Year: 2018-19 Nuovo Pignone International Versus Dcit, Circle 2(2)(2), Srl, 6Th Floor, Building No. 7A, International Taxation, Standard Chartered Building, New Delhi Dlf Cyber City, Phase-Iii, Gurgaon. Pan: Aabcg3212A (Appellant) (Respondent)

For Appellant: Sh. Sachit Jolly, Advocate &For Respondent: Sh. Virendra Singh, Sr. DR

Section 133ASection 143(3)Section 144C(13)

Rest of the issues raised by the assessee are ancillary and subsidiary to this issue. 3. Briefly, the facts are, the assessee is a non-resident corporate entity and a tax resident of Italy. As stated by the Assessing Officer, the assessee is one of the leading suppliers of compressors/pumps/turbines ... issue of existence of PE in India by keeping themselves confined to specific facts of the impugned assessment year. He submitted, whether a non-resident entity has a PE in another country has to be determined on a year to year basis looking at the facts involved in the particular

Adm Agro Industries Kota & Akola P.Ltd, Gurugram vs. ACIT, Circle-1(1), New Delhi

In the result, appeal is partly allowed

ITA 2281/DEL/2022[2018-19]Status: DisposedITAT Delhi13 Jun 2023AY 2018-19

Bench: Shri G.S. Pannu & Shri Saktijit Deyassessment Year: 2018-19 Adm Agro Industries Kota & Versus Acit, Circle 1(1), Akola P. Ltd., 3Rd Floor, Vatika New Delhi Professional Point, Golf Course Extension Road, Sector-66, Gurgaon. Pan: Aabcs9646L (Appellant) (Respondent)

For Appellant: Sh. Ajay Vohra, Sr. Advocate &For Respondent: Sh. Rajesh Kumar, CIT-DR

Section 143(3)Section 144C(13)

Before us, learned Sr. counsel appearing for the assessee submitted, in so far as merchanting trade segment is concerned, the buyer and seller, both non-resident entities, are pre-identified and the assessee merely acts as a facilitator/service provider/arranger. Explaining further, he submitted, assessee enters into purchase contract with

Qualcomm Incorporated, Hyderabad vs. DCIT, Circle- 3(1)(1), Intl. Taxation, New Delhi

The appeal of the assessee is allowed

ITA 7559/DEL/2018[2015-16]Status: DisposedITAT Delhi13 Jun 2023AY 2015-16

Bench: Shri G.S. Pannu & Shri Saktijit Dey

For Appellant: Sh. Percy J. Pardiwala, Sr. CounselFor Respondent: Sh. Gangadhar Panda, CIT(DR)

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

discuss the facts as involved in ITA No. 7894/Del/2017 for the assessment year 2014-15. 3. Briefly, the facts are, the assessee is a non-resident corporate entity incorporated in United States of America (USA) and tax resident of USA. As stated by the Assessing Officer, the assessee ... royalties for any right, property or information used or service utilized use 'for the purpose of business or profession carried on' by a non-resident in India and 'for the purposes of making or earning any income from any source" by a non-resident in India. Para-71. We find

Qualcomm Incorporated, Usa vs. DCIT, Circle- 3(1)(1), Intl. Taxation, New Delhi

The appeal of the assessee is allowed

ITA 7894/DEL/2017[2014-15]Status: DisposedITAT Delhi13 Jun 2023AY 2014-15

Bench: Shri G.S. Pannu & Shri Saktijit Dey

For Appellant: Sh. Percy J. Pardiwala, Sr. CounselFor Respondent: Sh. Gangadhar Panda, CIT(DR)

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

Smit Singapore Pte Ltd, Mumbai vs. Deputy Commissioner of Income Tax(Int Taxation)-4(2)(1), Mumbai

In the result, the appeal by the assessee is partly allowed for statistical purposes

ITA 816/MUM/2023[2020-2021]Status: DisposedITAT Mumbai12 Jun 2023AY 2020-2021

Bench: Shri Amarjit Singh & Shri Sandeep Singh Karhail

For Appellant: Shri Madhur Agrawal a/w Ms. Miti ShahFor Respondent: Shri Chandip Singh

Section 142(1)Section 143(2)Section 143(3)Section 144C(5)Section 234Section 234ASection 234BSection 270ASection 44BSection 9(1)(vi)

facts involved in the case before the Hon'ble High Court, we find, that the assessee had entered into charter agreements with various non-resident companies for chartering of their ships in the course of its business of moving of coal from various ports in India to a particular location ... India. As per the agreements entered into between the assessee with the various non-resident companies, we find, that there were certain peculiar clauses viz. (i) the place of redelivery of ships was at the option of the charterer; (ii) the masters/captain and others working on the ships were

Manjit Jitrndrabhai Kothari, Rajkot vs. The ITO, Ward-2(1)(2), Rajkot

In the result, the appeal of the assessee is allowed

ITA 261/RJT/2019[2011-12]Status: DisposedITAT Rajkot09 Jun 2023AY 2011-12

Bench: Smt. Annapurna Gupta & Shri Siddhartha Nautiyal

For Appellant: Shri Vimal Desai, A.RFor Respondent: Shri B. D. Gupta, Sr. DR

Section 144Section 69A

Manjit Jitendrabhai Kothari vs. ITO Asst.Year –2011-12 assessee. Before us, the counsel for the assessee submitted that the assessee is a non-resident Indian and is residing in Uganda. However, the parents of the assessee are residing in India. The parents of the assessee are senior citizens

Sapein Funds Ltd., Mauritius vs. CIT (International Taxation) Delhi-3, New Delhi

In the result, the appeal of the assessee is allowed

ITA 976/DEL/2022[2017-18]Status: DisposedITAT Delhi08 Jun 2023AY 2017-18

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

For Appellant: Sh. Salil Kapoor, Adv. &For Respondent: Sh. Vizay Vasanta, CIT-DR

Section 143(3)Section 263

entire facts, we find that the observation of the ld. CIT that the assessee company is not entitled to treaty benefits being a non-resident for tax purpose because of non-fulfillment of condition of liable to tax criteria is wrong on facts. Just because, tax exemption is provided

DCIT 16(2), Mumbai vs. M/S. Bsr and Co. LLP, Mumbai

In the result ITA No. 723/Mum/2023 is dismissed, ITA No

ITA 723/MUM/2023[2014-15]Status: DisposedITAT Mumbai06 Jun 2023AY 2014-15

Bench: Shri Vikas Awasthy & Shri Gagan Goyal

For Appellant: Sh. Soumendu Kumar Das, Sr. DRFor Respondent: Sh. Ajit Kumar Jain CA &

Section 142(1)Section 40Section 90

rendered by the associate concerns to the assessee constitute “Independent Personal Services” under DTAAs not appreciating that only those services performed by an independent non-resident alien contractor would constitute “Independent Personal Services” under DTAA which is not the case here as in this case, the Services were rendered ... proceedings, the Ld. AO made additions on account of two issues i.e. (i) claim of professional fees of Rs. 68,76,243/- paid to non-residents without deduction of tax at source and (ii) claim of remittance of Rs. 7,09,17,956/-made to KPMG International Co-operative, Switzerland

Tpg Growth II Makets Pte Ltd., Mumbai vs. DCIT 4(1)(2), Mumbai

Accordingly, Ground No. 4 raised by the Appellant is partly allowed

ITA 1387/MUM/2022[2017-18]Status: DisposedITAT Mumbai06 Jun 2023AY 2017-18

For Appellant: Shri Dinesh BafnaFor Respondent: Dr. Samuel Pitta

Section 143(3)Section 144C(13)Section 144C(5)Section 5Section 9Section 92C(3)

loan given to AE and charging interest thereon f) Without prejudice to the above, determining deemed interest receivable by the Assessee (a non-resident) from its AE [ie, TPG Growth II SF Pte. Ltd. (TPG SF), another non-resident) as income taxable in India under the provisions of section ... International Transaction’. Section 92B(1) of the Act ‘International Transaction’ to mean transaction between two or more AEs (either or both of whom are non-residents) in the nature of purchase, sale, or lease of any tangible or intangible property, or 12 provision of services, or lending/borrowing of money

Baker Hughes Energy Technologies Uk Limited, United Kingdom vs. ACIT, Circle-1(1)(2), Int. Taxation, New Delhi

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

ITA 521/DEL/2023[2020-21]Status: DisposedITAT Delhi06 Jun 2023AY 2020-21

For Appellant: Shri Sachit Jolly, AdvocateFor Respondent: Shri Vijay Vasanta, CIT DR

Section 448Section 44B

provides that notwithstanding anything contained in Sections 28 to 41 and Section 43 and 43A, 10% of the gross receipt of a non-resident engaged in the business of providing services or facilities or supplying plant and machinery on hire which is used in prospecting for or extraction of mineral ... 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

New Delhi Television Ltd., New Delhi vs. ACIT, CPC- TDS, Ghaziabad

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

ITA 6901/DEL/2019[27Q/Quarter-3/2017-18]Status: DisposedITAT Delhi01 Jun 2023

Bench: Shri C.M. Garg & Shri M. Balaganesh

For Appellant: Shri Shaantanu Devansh, Advocate &For Respondent: Ms Raja Rajeshwari R. Sr. DR

Section 154Section 194CSection 200ASection 201Section 220(2)

payments falling within the ambit of provisions of section 194C and 194J of the Act) and Form No. 27Q (for payments made to non-residents). In all the aforesaid returns, the ld. CPC had charged interest u/s 201(1A) of the Act for the delay in remittance of tax deducted

New Delhi Television Ltd., New Delhi vs. ACIT, CPC- TDS, Ghaziabad

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

ITA 6900/DEL/2019[26Q/Quarter- 3/2017-18]Status: DisposedITAT Delhi01 Jun 2023

Bench: Shri C.M. Garg & Shri M. Balaganesh

For Appellant: Shri Shaantanu Devansh, Advocate &For Respondent: Ms Raja Rajeshwari R. Sr. DR

Section 154Section 194CSection 200ASection 201Section 220(2)

New Delhi Television Ltd., New Delhi vs. ACIT, CPC- TDS, Ghaziabad

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

ITA 6899/DEL/2019[24Q/Quarter-3/2017-18]Status: DisposedITAT Delhi01 Jun 2023

Bench: Shri C.M. Garg & Shri M. Balaganesh

For Appellant: Shri Shaantanu Devansh, Advocate &For Respondent: Ms Raja Rajeshwari R. Sr. DR

Section 154Section 194CSection 200ASection 201Section 220(2)

DCIT, CC-2(4), Mumbai vs. Keystone Realtors P Ltd., As Representative Assessee of M/S. Mausmi Ventures Ltd., Mumbai

Appeal of the Revenue is dismissed

ITA 90/MUM/2023[2013-14]Status: DisposedITAT Mumbai31 May 2023AY 2013-14

Bench: Shri Vikas Awasthy & Shri Gagan Goyalआअसं.88/मुं/ 2023 से 90/मुं/ 2023 ("न.व.2011-12 से 2013-14)

For Appellant: Smt. Madhumalti Ghosh, CIT DRFor Respondent: Shri Naresh Kumar

Section 131Section 139(1)Section 143(2)Section 143(3)Section 144C(1)Section 144C(3)Section 148Section 163Section 163(1)

provisions qua treating any person in India as representative assessee/agent in relation to a Non-resident are contained in section 163 of the Act. The same is reproduced herein below: “163. (1) For the purposes of this Act, "agent", in relation to a non-resident, includes any person in India ... employed by or on behalf of the non-resident; or (b) who has any business connection with the non-resident; or (c) from or through whom the non-resident is in receipt of any income, whether directly or indirectly; or (d) who is the trustee of the non-resident

DCIT, CC-2(4), Mumbai vs. Keystone Realtors P Ltd., As Representative Assessee of M/S. Mausmi Ventures Ltd., Mumbai

Appeal of the Revenue is dismissed

ITA 89/MUM/2023[2012-13]Status: DisposedITAT Mumbai31 May 2023AY 2012-13

Bench: Shri Vikas Awasthy & Shri Gagan Goyalआअसं.88/मुं/ 2023 से 90/मुं/ 2023 ("न.व.2011-12 से 2013-14)

For Appellant: Smt. Madhumalti Ghosh, CIT DRFor Respondent: Shri Naresh Kumar

Section 131Section 139(1)Section 143(2)Section 143(3)Section 144C(1)Section 144C(3)Section 148Section 163Section 163(1)

DCIT, CC-2(4), Mumbai vs. Keystone Realtors P Ltd As Representative Assessee of M/S. Mausmi Ventures Ltd.), Mumbai

Appeal of the Revenue is dismissed

ITA 88/MUM/2023[2011-12]Status: DisposedITAT Mumbai31 May 2023AY 2011-12

Bench: Shri Vikas Awasthy & Shri Gagan Goyalआअसं.88/मुं/ 2023 से 90/मुं/ 2023 ("न.व.2011-12 से 2013-14)

For Appellant: Smt. Madhumalti Ghosh, CIT DRFor Respondent: Shri Naresh Kumar

Section 131Section 139(1)Section 143(2)Section 143(3)Section 144C(1)Section 144C(3)Section 148Section 163Section 163(1)

Vijayakumar Kanaiyalal Matta, Mumbai vs. ITO 26 (3)(4), Mumbai

In the result, appeal of the assessee is partly allowed

ITA 53/MUM/2020[2014-15]Status: DisposedITAT Mumbai31 May 2023AY 2014-15

Bench: Shri Vikas Awasthy & Shri Amarjit Singhvk-Vk-La- 52@Eaqcbz@2020 ¼Fu-Oa- 2013&14½ Vk-Vk-La- 53@Eaqcbz@2020 ¼Fu-Oa- 2014&15½ Vijaykumar Kanaiyalal Matta 8/B/104, 10Th Floor, S. S. Nagar, Sion Koliwada, Sion Mumbai-400 037 ..... Vihykfkhz/Appellant Pan No. Aropm6060D Cuke Vs. Income Tax Officer – 26(3) (4) Room No.507, 5Th Floor, Pratyaksha Kar Bhawan, B. K. C. Bandra (E), ..... Izfroknh/Respondent Mumbai-400 051

For Appellant: Shri Tejveer Singh, AdvocateFor Respondent: Shri Abhishek Kumar Singh, Sr. AR

Section 131Section 147Section 148Section 69

decided by this common order. 3. The facts common to both impugned assessment years, in brief are as follows: The assessee is a non-resident. The assessee purchased a property that is Flat No.902 in a project known as “Silver Arch” developed by Argent Constructions for a consideration of Rs.1 ... funds from Muscat. Under the provisions of section 5(2) of the Act, income of previous year of a person who is a non-resident is taxable in India if the source of income is in India or the income is received or deemed to be received in India

Vijayakumar Kanaiyalal Matta, Mumbai vs. ITO 26 (3)(4), Mumbai

In the result, appeal of the assessee is partly allowed

ITA 52/MUM/2020[2013-14]Status: DisposedITAT Mumbai31 May 2023AY 2013-14

For Appellant: Shri Tejveer Singh, AdvocateFor Respondent: Shri Abhishek Kumar Singh, Sr. AR

Section 131Section 147Section 148Section 69