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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

Expeditors International of Washington, Usa vs. ACIT, Circle 1(2)(2), International Taxation, New Delhi

In the result, the appeal of the assessee is allowed

ITA 355/DEL/2023[2020-21]Status: DisposedITAT Delhi02 May 2023AY 2020-21

Bench: Shri G.S. Pannu, Hon’Ble & Ms. Astha Chandraasstt. Year: 2020-21

For Appellant: Shri Rohan Khare, AdvFor Respondent: Shri Vizay Vasanta, CIT- DR
Section 143(3)Section 234ASection 234BSection 270ASection 9(1)(vi)Section 9(1)(vii)

furnished incorrect particulars of income without recording any adequate satisfaction for such initiation.” 3. Briefly stated the facts are that the assessee is a non-resident company headquartered in Seattle, Washington and is engaged in the business of providing global freight logistics services worldwide. It carries out operations in three

Mass Awash Private Limited, Lucknow vs. Addi. CIT International Taxation, Noida

In the result, the appeals of the assessee are dismissed

ITA 166/DEL/2021[2005-06]Status: DisposedITAT Delhi02 May 2023AY 2005-06

Bench: Shri G.S. Pannu, Hon’Ble & Ms. Astha Chandra

For Appellant: NoneFor Respondent: Shri Sanjay Kumar, Sr. DR
Section 156Section 195Section 201(1)Section 271C(1)(a)Section 275(1)(C)Section 275(1)(c)

assessment order the AO has mentioned as “As the assessee had no basis of presumptions of non-taxability of the non-resident, penalty proceedings u/s 271C are initiated separately against the assessee for failure to deduct tax at source.” 4.4 The AO is mere referring to the aspect of separate

Mass Awash Private Limited, Lucknow vs. Addi. CIT International Taxation, Noida

In the result, the appeals of the assessee are dismissed

ITA 165/DEL/2021[2004-05]Status: DisposedITAT Delhi02 May 2023AY 2004-05

Bench: Shri G.S. Pannu, Hon’Ble & Ms. Astha Chandra

For Appellant: NoneFor Respondent: Shri Sanjay Kumar, Sr. DR
Section 156Section 195Section 201(1)Section 271C(1)(a)Section 275(1)(C)Section 275(1)(c)

assessment order the AO has mentioned as “As the assessee had no basis of presumptions of non-taxability of the non-resident, penalty proceedings u/s 271C are initiated separately against the assessee for failure to deduct tax at source.” 4.4 The AO is mere referring to the aspect of separate

Mass Awash Private Limited, Lucknow vs. Addi. CIT International Taxation, Noida

In the result, the appeals of the assessee are dismissed

ITA 164/DEL/2021[2006-07]Status: DisposedITAT Delhi02 May 2023AY 2006-07

Bench: Shri G.S. Pannu, Hon’Ble & Ms. Astha Chandra

For Appellant: NoneFor Respondent: Shri Sanjay Kumar, Sr. DR
Section 156Section 195Section 201(1)Section 271C(1)(a)Section 275(1)(C)Section 275(1)(c)

assessment order the AO has mentioned as “As the assessee had no basis of presumptions of non-taxability of the non-resident, penalty proceedings u/s 271C are initiated separately against the assessee for failure to deduct tax at source.” 4.4 The AO is mere referring to the aspect of separate

DCIT (TDS)(OSD)-2(3), Mumbai vs. Uber India Systems Pvt Ltd, Mumbai

In the result, the appeal by the Revenue is dismissed

ITA 126/MUM/2023[2019-20]Status: DisposedITAT Mumbai26 Apr 2023AY 2019-20

Bench: Shri Prashant Maharishi & Shri Sandeep Singh Karhail

For Appellant: Shri Hiten ChandeFor Respondent: Shri Ankush Kapoor
Section 165ASection 204Section 250

meaning of the expression "Person responsible for paying" in the context wherein the payment was made by a resident on behalf of a non-resident and therefore these provisions have a retrospective application. 3. Whether on the facts and in the circumstances of the case ... earlier. We find that this amendment makes it very clear that any person who is authorized to make payment on behalf of a non-resident will be covered within the purview of section 204 of the Act and will be required to deduct tax at source

DCIT (It)-4(1)(1), Mumbai vs. M/S Reliance Jio Infocomm Ltd, Mumbai

In the result, the appeal of the Revenue stands dismissed

ITA 2866/MUM/2022[2019-20]Status: DisposedITAT Mumbai26 Apr 2023AY 2019-20

Bench: Shri Aby T. Varkey, Jm & Shri Amarjit Singh, Am आयकर अपील सं/ I.T.A. No.2866/Mum/2022 (निर्धारण वर्ा / Assessment Year: 2019-20) Dcit(It)-4(1)(1) बिधम/ M/S. Reliance Jio Room No. 1712, 17Th Floor, Infocomm Ltd Vs. Air India Building, Nariman 3Rd Floor, Maker Point, Mumbai-400021. Chamber-Iv, 222, Nariman Point, Mumbai- 400021. स्थधयी लेखध सं./जीआइआर सं./Pan/Gir No. : Aabci6363G (अपीलार्थी /Appellant) .. (प्रत्यर्थी / Respondent) Assessee By: Shri Nimesh Vora/Ms. Moksha Moksha Mehta Revenue By: None सुनवाई की तारीख / Date Of Hearing: 24/02/2023 घोषणा की तारीख /Date Of Pronouncement: 26/04/2023 आदेश / O R D E R Per Aby T. Varkey, Jm: This Is An Appeal Preferred By The Revenue Against The Order Of The Ld. Cit(A)/Nfac, Mumbai Dated 08.09.2022 For The Ay 2019-20. 2. The Grounds Of Appeal Of The Revenue Are As Under: - A. “Whether On The Facts & Circumstances Of The Case & In Law, The Ld. Cit(A) Has Erred In Holding That Tax Was Not Required To Be Deducted At Source On The Payment Made By The Assessee To Reliance Jio Infocomm Uk (Rjiuk) For Availing Bandwidth Services As It Did Not Amount To Income Of The Payee By Way Of Royalty U/S 9(1)(Vi) Of The It Act, 1961 Read With Article 13 Of The India-Uk Dtaa. B. “Whether On The Facts & Circumstances Of The Case & In Law, The Ld, Cit(A) Has Erred In Holding That Tax Was Not Required To Be Deducted At Source On The Payment Made By The Assessee To Reliance Jio Infocomm Uk (Rjiuk) For Availing Bandwidth Services As It Did Not Amount To Income Of The Payee

For Appellant: Shri Nimesh Vora/Ms. MokshaFor Respondent: None
Section 195Section 248Section 9Section 9(1)(vi)

fact that instead of having its own equipment, the payer is utilizing 5 A.Y. 2019-20 Reliance Jio Infocomm Ltd. the infrastructure of the non-resident to have bandwidth facilities. Thus, he contended that these are covered under the Article 13(3) of the India UK-DTAA as well

Shri Gurbinder Singh Mahal, Amritsar vs. Income Tax Officer Ward-IV ( 2), Amritsar

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

ITA 22/ASR/2023[2014-15]Status: DisposedITAT Amritsar24 Apr 2023AY 2014-15

Bench: Dr. M. L. Meena & Sh. Anikesh Banerjee

Section 144Section 144oSection 250(4)Section 250(6)Section 250o

appellant as the appellant’s father Sh. Harjit Singh is alive. Furthermore, the provisions of section 160 are only applicable on agent of non-resident, minor, lunatic or idiot, the guardian or manager, Administrator- General, the Official Trustee or any receiver or manager or trustee appointed under a trust

Deputy Commissioner of Income Tax (International Taxation)-2(1)(1), Mumbai vs. M/S Cooperative Babobank Ua., Mumbai

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

ITA 2978/MUM/2022[2015-2016]Status: DisposedITAT Mumbai21 Apr 2023AY 2015-2016

Bench: Shri Prashant Maharishi & Shri Sandeep Singh Karhail

For Appellant: Shri Nitesh JoshiFor Respondent: Shri Soumendu Kumar Dash
Section 250

DTAA based on the principle of apportionment enshrined under the Act as well as the DTAA in respect of cross-border transactions of the non-residents. The AO also referred to the amendment to section 9(1)(v) of the Act vide Finance Act, 2015. Accordingly, the AO treated

Deputy Comm. of Income Tax (Int Taxation)-2(1)(1), Mumbai vs. M/S Cooperative Rabobank Ua, Mumbai

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

ITA 2514/MUM/2022[2013-2014]Status: DisposedITAT Mumbai21 Apr 2023AY 2013-2014

Bench: Shri Prashant Maharishi & Shri Sandeep Singh Karhail

For Appellant: Shri Nitesh JoshiFor Respondent: Shri Soumendu Kumar Dash
Section 250

DTAA based on the principle of apportionment enshrined under the Act as well as the DTAA in respect of cross-border transactions of the non-residents. The AO also referred to the amendment to section 9(1)(v) of the Act vide Finance Act, 2015. Accordingly, the AO treated

Deputy Comm. of Income Tax (Int Taxation)-2(1)(1), Mumbai vs. M/S Cooperative Rabobank Ua, Mumbai

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

ITA 2513/MUM/2022[2014-2015]Status: DisposedITAT Mumbai21 Apr 2023AY 2014-2015

Bench: Shri Prashant Maharishi & Shri Sandeep Singh Karhail

For Appellant: Shri Nitesh JoshiFor Respondent: Shri Soumendu Kumar Dash
Section 250

DTAA based on the principle of apportionment enshrined under the Act as well as the DTAA in respect of cross-border transactions of the non-residents. The AO also referred to the amendment to section 9(1)(v) of the Act vide Finance Act, 2015. Accordingly, the AO treated

Balajee Constructions, Visakhapatnam vs. Deputy Commissioner of Income Tax, TDS Ward-1, Visakhapatnam

In the result, appeal filed by the assessee in ITA

ITA 238/VIZ/2022[2015-16]Status: DisposedITAT Visakhapatnam21 Apr 2023AY 2015-16

Bench: Shri Duvvuru Rl Reddy, Hon’Ble & Shri S Balakrishnan, Hon’Ble

For Appellant: Sri C. Subrahmanyam, ARFor Respondent: Sri ON Hari Prasada Rao
Section 154Section 200ASection 234ESection 246Section 250

assessee under either of the said sections; (d) an order made under section 163 treating the assessee as the agent of a non-resident; (e) an order made under sub-section (2) or sub-section (3) of section 170; (f) an order made under section 171; (g) an order made

Balajee Constructions, Visakhapatnam vs. Deputy Commissioner of Income Tax, TDS Ward-1, Visakhapatnam

In the result, appeal filed by the assessee in ITA

ITA 237/VIZ/2022[2014-15]Status: DisposedITAT Visakhapatnam21 Apr 2023AY 2014-15

Bench: Shri Duvvuru Rl Reddy, Hon’Ble & Shri S Balakrishnan, Hon’Ble

For Appellant: Sri C. Subrahmanyam, ARFor Respondent: Sri ON Hari Prasada Rao
Section 154Section 200ASection 234ESection 246Section 250

assessee under either of the said sections; (d) an order made under section 163 treating the assessee as the agent of a non-resident; (e) an order made under sub-section (2) or sub-section (3) of section 170; (f) an order made under section 171; (g) an order made

Balajee Constructions, Visakhapatnam vs. Deputy Commissioner of Income Tax, TDS Ward-1, Visakhapatnam

In the result, appeal filed by the assessee in ITA

ITA 236/VIZ/2022[2013-14]Status: DisposedITAT Visakhapatnam21 Apr 2023AY 2013-14

Bench: Shri Duvvuru Rl Reddy, Hon’Ble & Shri S Balakrishnan, Hon’Ble

For Appellant: Sri C. Subrahmanyam, ARFor Respondent: Sri ON Hari Prasada Rao
Section 154Section 200ASection 234ESection 246Section 250

assessee under either of the said sections; (d) an order made under section 163 treating the assessee as the agent of a non-resident; (e) an order made under sub-section (2) or sub-section (3) of section 170; (f) an order made under section 171; (g) an order made

Maruti Suzuki India Ltd, New Delhi vs. DCIT, Circle-16(1), New Delhi

ITA 1953/DEL/2022[2018-19]Status: FixedITAT Delhi20 Apr 2023AY 2018-19

Bench: Shri G. S. Pannu, Shri N.V.Vasudevan & Shri Vikas Awasthyआअसुं.6997/म ुं/2019(धन.व. 2016-17) Deputy Commissioner Of Income Tax Circle 11(3)(1), Mumbai ...... अपीलाथी/Appellant बनाम Vs. Total Oil India Pvt. Ltd. 3Rd Floor, The Leela Galleria, Andheri ( East), Mumbai 400 059 ..... प्रधिवादी/Respondent Pan: Aaace-2175-M C.O. No.57/Mum/2019 Total Oil India Pvt. Ltd. Mumbai – 400 059 ...... Cross Objector बनाम Vs. Deputy Commissioner Of Income Tax ...... प्रधिवादी/Respondent Circle 11(3)(1), Mumbai.

For Appellant: Shri Niraj ShethFor Respondent: Shri Vinod Tanwani, CIT-DR
Section 115

20/04/2023 आदेश/ ORDER The question for consideration before Special Bench is:- "Where dividend is declared, distributed or paid by a domestic company to a non-resident shareholder(s), which attracts additional income-tax (tax on distributed profits) referred to in section 115-O of the Income ... domestic company shall be at the rate mentioned in Section 115-O of the Act or the rate of tax applicable to the non-resident shareholder(s) with reference to such dividend income”. 5 Special Bench - Total Oil India Pvt. Ltd. Backdrop for constitution of Special Bench

Maruti Suzuki India Ltd, New Delhi vs. DCIT, Circle-16(1), New Delhi

ITA 1952/DEL/2022[2017-18]Status: FixedITAT Delhi20 Apr 2023AY 2017-18

Bench: Shri G. S. Pannu, Shri N.V.Vasudevan & Shri Vikas Awasthyआअसुं.6997/म ुं/2019(धन.व. 2016-17) Deputy Commissioner Of Income Tax Circle 11(3)(1), Mumbai ...... अपीलाथी/Appellant बनाम Vs. Total Oil India Pvt. Ltd. 3Rd Floor, The Leela Galleria, Andheri ( East), Mumbai 400 059 ..... प्रधिवादी/Respondent Pan: Aaace-2175-M C.O. No.57/Mum/2019 Total Oil India Pvt. Ltd. Mumbai – 400 059 ...... Cross Objector बनाम Vs. Deputy Commissioner Of Income Tax ...... प्रधिवादी/Respondent Circle 11(3)(1), Mumbai.

For Appellant: Shri Niraj ShethFor Respondent: Shri Vinod Tanwani, CIT-DR
Section 115

20/04/2023 आदेश/ ORDER The question for consideration before Special Bench is:- "Where dividend is declared, distributed or paid by a domestic company to a non-resident shareholder(s), which attracts additional income-tax (tax on distributed profits) referred to in section 115-O of the Income ... domestic company shall be at the rate mentioned in Section 115-O of the Act or the rate of tax applicable to the non-resident shareholder(s) with reference to such dividend income”. 5 Special Bench - Total Oil India Pvt. Ltd. Backdrop for constitution of Special Bench

Maruti Suzuki India Ltd., New Delhi vs. DCIT, Circle-16(1), New Delhi

ITA 521/DEL/2021[2016-17]Status: FixedITAT Delhi20 Apr 2023AY 2016-17

Bench: Shri G. S. Pannu, Shri N.V.Vasudevan & Shri Vikas Awasthyआअसुं.6997/म ुं/2019(धन.व. 2016-17) Deputy Commissioner Of Income Tax Circle 11(3)(1), Mumbai ...... अपीलाथी/Appellant बनाम Vs. Total Oil India Pvt. Ltd. 3Rd Floor, The Leela Galleria, Andheri ( East), Mumbai 400 059 ..... प्रधिवादी/Respondent Pan: Aaace-2175-M C.O. No.57/Mum/2019 Total Oil India Pvt. Ltd. Mumbai – 400 059 ...... Cross Objector बनाम Vs. Deputy Commissioner Of Income Tax ...... प्रधिवादी/Respondent Circle 11(3)(1), Mumbai.

For Appellant: Shri Niraj ShethFor Respondent: Shri Vinod Tanwani, CIT-DR
Section 115

20/04/2023 आदेश/ ORDER The question for consideration before Special Bench is:- "Where dividend is declared, distributed or paid by a domestic company to a non-resident shareholder(s), which attracts additional income-tax (tax on distributed profits) referred to in section 115-O of the Income ... domestic company shall be at the rate mentioned in Section 115-O of the Act or the rate of tax applicable to the non-resident shareholder(s) with reference to such dividend income”. 5 Special Bench - Total Oil India Pvt. Ltd. Backdrop for constitution of Special Bench

Maruti Suzuki India Limited, New Delhi vs. ACIT, Spl. Range-6, New Delhi

ITA 8968/DEL/2019[2015-16]Status: HeardITAT Delhi20 Apr 2023AY 2015-16

Bench: Shri G. S. Pannu, Shri N.V.Vasudevan & Shri Vikas Awasthyआअसुं.6997/म ुं/2019(धन.व. 2016-17) Deputy Commissioner Of Income Tax Circle 11(3)(1), Mumbai ...... अपीलाथी/Appellant बनाम Vs. Total Oil India Pvt. Ltd. 3Rd Floor, The Leela Galleria, Andheri ( East), Mumbai 400 059 ..... प्रधिवादी/Respondent Pan: Aaace-2175-M C.O. No.57/Mum/2019 Total Oil India Pvt. Ltd. Mumbai – 400 059 ...... Cross Objector बनाम Vs. Deputy Commissioner Of Income Tax ...... प्रधिवादी/Respondent Circle 11(3)(1), Mumbai.

For Appellant: Shri Niraj ShethFor Respondent: Shri Vinod Tanwani, CIT-DR
Section 115

20/04/2023 आदेश/ ORDER The question for consideration before Special Bench is:- "Where dividend is declared, distributed or paid by a domestic company to a non-resident shareholder(s), which attracts additional income-tax (tax on distributed profits) referred to in section 115-O of the Income ... domestic company shall be at the rate mentioned in Section 115-O of the Act or the rate of tax applicable to the non-resident shareholder(s) with reference to such dividend income”. 5 Special Bench - Total Oil India Pvt. Ltd. Backdrop for constitution of Special Bench

Addl. CIT, Special Range- 4, New Delhi vs. Ircon International Ltd., New Delhi

ITA 1507/DEL/2019[2015-16]Status: DisposedITAT Delhi20 Apr 2023AY 2015-16

Bench: Sh. Shamim Yahya & Sh. Anubhav Sharmaita No. 127/Del/2019, A.Y. 2015-16 M/S. Ircon International Vs. Addl. Commissioner Of Ltd. Income Tax, C-4, Distt.-Centre, Saket Special Range-04, New Delhi-110017 New Delhi Pan : Aaaci0684H (Appellant) (Respondent)

Section 143(2)Section 143(3)Section 14ASection 80I

residency based taxation system. According to this system, a country can tax its residents on the global income of the taxpayer while the non-residents are taxed only on the income sourced inside the country. The provisions of section 5 as enumerated above give a scope of a total income

Ircon International Ltd., New Delhi vs. Addl.CIT, Special Range- 4, New Delhi

ITA 127/DEL/2019[2015-16]Status: DisposedITAT Delhi20 Apr 2023AY 2015-16

Bench: Sh. Shamim Yahya & Sh. Anubhav Sharmaita No. 127/Del/2019, A.Y. 2015-16 M/S. Ircon International Vs. Addl. Commissioner Of Ltd. Income Tax, C-4, Distt.-Centre, Saket Special Range-04, New Delhi-110017 New Delhi Pan : Aaaci0684H (Appellant) (Respondent)

Section 143(2)Section 143(3)Section 14ASection 80I

residency based taxation system. According to this system, a country can tax its residents on the global income of the taxpayer while the non-residents are taxed only on the income sourced inside the country. The provisions of section 5 as enumerated above give a scope of a total income

Maruti Suzuki India Ltd., New Delhi vs. DCIT, Circle-16(1), New Delhi

ITA 8009/DEL/2018[2014-15]Status: HeardITAT Delhi20 Apr 2023AY 2014-15

Bench: Shri G. S. Pannu, Shri N.V.Vasudevan & Shri Vikas Awasthyआअसुं.6997/म ुं/2019(धन.व. 2016-17) Deputy Commissioner Of Income Tax Circle 11(3)(1), Mumbai ...... अपीलाथी/Appellant बनाम Vs. Total Oil India Pvt. Ltd. 3Rd Floor, The Leela Galleria, Andheri ( East), Mumbai 400 059 ..... प्रधिवादी/Respondent Pan: Aaace-2175-M C.O. No.57/Mum/2019 Total Oil India Pvt. Ltd. Mumbai – 400 059 ...... Cross Objector बनाम Vs. Deputy Commissioner Of Income Tax ...... प्रधिवादी/Respondent Circle 11(3)(1), Mumbai.

For Appellant: Shri Niraj ShethFor Respondent: Shri Vinod Tanwani, CIT-DR
Section 115

20/04/2023 आदेश/ ORDER The question for consideration before Special Bench is:- "Where dividend is declared, distributed or paid by a domestic company to a non-resident shareholder(s), which attracts additional income-tax (tax on distributed profits) referred to in section 115-O of the Income ... domestic company shall be at the rate mentioned in Section 115-O of the Act or the rate of tax applicable to the non-resident shareholder(s) with reference to such dividend income”. 5 Special Bench - Total Oil India Pvt. Ltd. Backdrop for constitution of Special Bench