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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

Shaju Ninan John, Ernakulam vs. The DCIT, Circle- International Taxation, Kochi

In the result, the appeal by the assessee is dismissed

ITA 688/COCH/2022[2017-2018]Status: DisposedITAT Cochin02 Mar 2023AY 2017-2018

Bench: Shri Sanjay Arora (Accountant Member), Shri Sandeep Gosain (Judicial Member)

For Appellant: Shri Suresh Kumar Varma K, CAFor Respondent: Smt. J.M. Jamuna Devi, Sr. D.R
Section 143(3)

w.r.t. this cost of improvement are rejected.” (pg.6) 3. We have heard the parties, and perused the material on record. 3.1 The assessee, a non-resident Indian settled in UK, claims to have undertaken interior works at his Villa through a Contractor vide an agreement entered into on 05/11/2004

Sri.Mohammed Haris, Thrissur vs. Pr CIT, Bangalore

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

ITA 58/COCH/2021[2015-16]Status: DisposedITAT Cochin02 Mar 2023AY 2015-16

Bench: Shri Sanjay Arora (Accountant Member), Shri Sandeep Gosain (Judicial Member)

For Appellant: Shri B. Mohan, CAFor Respondent: Shri Prasanth V.K., CIT-DR
Section 143(3)Section 263

sent to the Department on 26/3/2021, the same itself shows the system was functioning, and well. As it appears to us, the assessee, a non-resident, based at Dubai, may have given a local mobile number, and not verified his email account, as would be the case with

Uptodate Inc., Gurgaon vs. DCIT, Circle-3(1)(1), Int. Taxation, New Delhi

In the result, the appeal is allowed, to the extent indicated

ITA 7347/DEL/2019[2016-17]Status: DisposedITAT Delhi28 Feb 2023AY 2016-17

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Deyassessment Year: 2016-17 M/S. Uptodate Inc., Vs. Dcit, 10Th Floor, Building No. 10, Circle-3(1)(1), Intl. Taxation, Phase-Ii, Dlf Cyber City, New Delhi Gurgaon Pan :Aabcu1828Q (Appellant) (Respondent)

Section 9(1)(vi)

India – United States of America (USA) Double Taxation Avoidance Agreement (DTAA). 2. The relevant facts relating to this issue are, the assessee is a non-resident corporate entity incorporated in USA and a tax resident of USA. For the assessment year under dispute, the assessee filed its return of income ... 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 :he resale/use of the computer software through EULAs/distribution agreements, is not the payment of royalty

Planet Gogo Private Ltd., Gurgaon vs. ITO Ward-3(2), Gurgaon

In the result, the appeal is allowed

ITA 1526/DEL/2022[2016-17]Status: DisposedITAT Delhi24 Feb 2023AY 2016-17

Bench: Shri Saktijit Deyassessment Year: 2016-17

Section 56(2)Section 56(2)(viib)

project, the assessee approached M/s. NBM Investment ALP Ltd. who invested in the shares, it is observed, NBM Investment Fund ALP is a non-resident Venture Capital fund. On a reading of section 6 ITA No.1526/Del./2022 56(2)(viib), it becomes very much clear that it is applicable ... resident investors and not to non-residents. That being the statutory provision, the addition made in respect of investment made by M/s. NBM Investment Fund ALP by invoking the provisions of section 56(2)(viib) is unsustainable. 7. As regards, the investment made by M/s. H.T. Digital Media Holding

Air France, New Delhi vs. DCIT, Circle- 1(1)(1), International Taxation, New Delhi

In the result, all the appeals filed by the assessee are partly

ITA 4698/DEL/2019[2015-16]Status: DisposedITAT Delhi24 Feb 2023AY 2015-16

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Deyassessment Year: 2007-08 With Assessment Year: 2008-09 With Assessment Year: 2009-10 With Assessment Year: 2011-12 With Assessment Year: 2012-13 With Assessment Year: 2013-14 With Assessment Year: 2014-15 With Assessment Year: 2015-16

Ground nos. 2 to 15 4. Briefly the facts relating to this issue are, the assessee, a branch office of a non-resident corporate entity is incorporated in France and a tax resident of France. Its head office is situated in Paris, France. The assessee is engaged in the business

Air France, New Delhi vs. DCIT, Circle- 1(1)(1), International Taxation, New Delhi

In the result, all the appeals filed by the assessee are partly

ITA 838/DEL/2018[2013-14]Status: DisposedITAT Delhi24 Feb 2023AY 2013-14

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Deyassessment Year: 2007-08 With Assessment Year: 2008-09 With Assessment Year: 2009-10 With Assessment Year: 2011-12 With Assessment Year: 2012-13 With Assessment Year: 2013-14 With Assessment Year: 2014-15 With Assessment Year: 2015-16

Ground nos. 2 to 15 4. Briefly the facts relating to this issue are, the assessee, a branch office of a non-resident corporate entity is incorporated in France and a tax resident of France. Its head office is situated in Paris, France. The assessee is engaged in the business

Air France, New Delhi vs. DCIT, Circle- 1(1)(1), International Taxation, New Delhi

In the result, all the appeals filed by the assessee are partly

ITA 837/DEL/2018[2014-15]Status: DisposedITAT Delhi24 Feb 2023AY 2014-15

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Deyassessment Year: 2007-08 With Assessment Year: 2008-09 With Assessment Year: 2009-10 With Assessment Year: 2011-12 With Assessment Year: 2012-13 With Assessment Year: 2013-14 With Assessment Year: 2014-15 With Assessment Year: 2015-16

Ground nos. 2 to 15 4. Briefly the facts relating to this issue are, the assessee, a branch office of a non-resident corporate entity is incorporated in France and a tax resident of France. Its head office is situated in Paris, France. The assessee is engaged in the business

ACIT, Circle- 1(1)(1), International Taxation, New Delhi vs. Air France, New Delhi

In the result, all the appeals filed by the assessee are partly

ITA 131/DEL/2018[2013-14]Status: DisposedITAT Delhi24 Feb 2023AY 2013-14

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Deyassessment Year: 2007-08 With Assessment Year: 2008-09 With Assessment Year: 2009-10 With Assessment Year: 2011-12 With Assessment Year: 2012-13 With Assessment Year: 2013-14 With Assessment Year: 2014-15 With Assessment Year: 2015-16

Ground nos. 2 to 15 4. Briefly the facts relating to this issue are, the assessee, a branch office of a non-resident corporate entity is incorporated in France and a tax resident of France. Its head office is situated in Paris, France. The assessee is engaged in the business

M/S Air France, New Delhi vs. DCIT (International Taxation), New Delhi

In the result, all the appeals filed by the assessee are partly

ITA 276/DEL/2016[2012-13]Status: DisposedITAT Delhi24 Feb 2023AY 2012-13

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Deyassessment Year: 2007-08 With Assessment Year: 2008-09 With Assessment Year: 2009-10 With Assessment Year: 2011-12 With Assessment Year: 2012-13 With Assessment Year: 2013-14 With Assessment Year: 2014-15 With Assessment Year: 2015-16

Ground nos. 2 to 15 4. Briefly the facts relating to this issue are, the assessee, a branch office of a non-resident corporate entity is incorporated in France and a tax resident of France. Its head office is situated in Paris, France. The assessee is engaged in the business

M/S Air France, New Delhi vs. DCIT (International Taxation), New Delhi

In the result, all the appeals filed by the assessee are partly

ITA 275/DEL/2016[2009-10]Status: DisposedITAT Delhi24 Feb 2023AY 2009-10

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Deyassessment Year: 2007-08 With Assessment Year: 2008-09 With Assessment Year: 2009-10 With Assessment Year: 2011-12 With Assessment Year: 2012-13 With Assessment Year: 2013-14 With Assessment Year: 2014-15 With Assessment Year: 2015-16

Ground nos. 2 to 15 4. Briefly the facts relating to this issue are, the assessee, a branch office of a non-resident corporate entity is incorporated in France and a tax resident of France. Its head office is situated in Paris, France. The assessee is engaged in the business

M/S Air France, New Delhi vs. DCIT, New Delhi

In the result, all the appeals filed by the assessee are partly

ITA 1150/DEL/2015[2011-12]Status: DisposedITAT Delhi24 Feb 2023AY 2011-12

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Deyassessment Year: 2007-08 With Assessment Year: 2008-09 With Assessment Year: 2009-10 With Assessment Year: 2011-12 With Assessment Year: 2012-13 With Assessment Year: 2013-14 With Assessment Year: 2014-15 With Assessment Year: 2015-16

Ground nos. 2 to 15 4. Briefly the facts relating to this issue are, the assessee, a branch office of a non-resident corporate entity is incorporated in France and a tax resident of France. Its head office is situated in Paris, France. The assessee is engaged in the business

Air France, New Delhi vs. Addl. DIT, New Delhi

In the result, all the appeals filed by the assessee are partly

ITA 5010/DEL/2011[2008-09]Status: DisposedITAT Delhi24 Feb 2023AY 2008-09

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Deyassessment Year: 2007-08 With Assessment Year: 2008-09 With Assessment Year: 2009-10 With Assessment Year: 2011-12 With Assessment Year: 2012-13 With Assessment Year: 2013-14 With Assessment Year: 2014-15 With Assessment Year: 2015-16

Ground nos. 2 to 15 4. Briefly the facts relating to this issue are, the assessee, a branch office of a non-resident corporate entity is incorporated in France and a tax resident of France. Its head office is situated in Paris, France. The assessee is engaged in the business

M/S Air France, New Delhi vs. Astt. Director of Income Tax, New Delhi

In the result, all the appeals filed by the assessee are partly

ITA 4812/DEL/2010[2007-08]Status: DisposedITAT Delhi24 Feb 2023AY 2007-08

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Deyassessment Year: 2007-08 With Assessment Year: 2008-09 With Assessment Year: 2009-10 With Assessment Year: 2011-12 With Assessment Year: 2012-13 With Assessment Year: 2013-14 With Assessment Year: 2014-15 With Assessment Year: 2015-16

Ground nos. 2 to 15 4. Briefly the facts relating to this issue are, the assessee, a branch office of a non-resident corporate entity is incorporated in France and a tax resident of France. Its head office is situated in Paris, France. The assessee is engaged in the business

Smiths Detection Asia Pacific Pte Limited, Delhi vs. DCIT, Circle-3(1)(2) Int. Taxation, New Delhi

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

ITA 2258/DEL/2022[2019-20]Status: DisposedITAT Delhi22 Feb 2023AY 2019-20

Bench: Shri N.K. Billaiya & Shri Anubhav Sharma

For Appellant: ShriHimanshu Sinha, AdvFor Respondent: Shri Sukesh Kumar Jain – CIT-DR
Section 143(3)

need to establish the PE again. 7. The Assessing Officer was further of the view that the taxation of business income of the non-resident is ascertained as per source rules under the domestic provisions r.w. relevant Article of the DTAA. 8. Referring to various financial statements furnished ... application. The permanent establishment cannot be equated to a business connection, since the former is for the purpose of assessment of income of a non-resident under a Double Taxation Avoidance Agreement, and the latter is for the application of Section 9 of the Income Tax Act. (6) Clause

DCIT, Circle-19(2), New Delhi vs. Personiv Contact Centres India Pvt Ltd ( Formely Known As John Keels Bpo Solutions Pvt. Ltd.), Gurgaon

In the result, the appeal of the Revenue stands dismissed

ITA 7295/DEL/2019[2016-17]Status: DisposedITAT Delhi22 Feb 2023AY 2016-17
For Appellant: Shri Pulkit Saini, AdvocateFor Respondent: Shri K.K. Mishra, Senior DR
Section 143(3)Section 40Section 9(1)(vii)

appellant was that the payment made is not subject to section 195 as it does not involve in income component arising to the non-resident company. The appellant has stated that the payment was for communication costs to the non-resident company and such company provided inbound and outbound facility ... India, the payer is bound to deduct tax on the same. If there is no income component in the sum paid to the non-resident liability of section 195 would not arise. The operative part of the judgment is as under:- "9. One more aspect needs to be highlighted Section

The ACIT-Central Circle-2, Rajkot vs. Shri Vicky Balkrishna Mehta, Rajkot

The appeal of the Revenue is dismissed

ITA 130/RJT/2020[2004-05]Status: DisposedITAT Rajkot22 Feb 2023AY 2004-05

Bench: Mrs. Annapurna Gupta & Shri Siddhartha Nautiyal"नधा"रणवष"/Assessment Year: 2004-05 Assistant Commissioner Of Vs. Shri Vicky Balkrishna Mehta, Income-Tax, 7Th Floor, Mansrovar Central Circle-2, Apartment, Royal Park, Rajkot Kalawad Road, Rajkot Pan : Agqpm 6495 B अपीलाथ"/ (Appellant) "" यथ"/ (Respondent) Assessee By : Shri D.M. Rindani, Ar Revenue By : Shri Shramdeep Sinha, Cit-Dr सुनवाई क" तार"ख/Date Of Hearing : 28.11.2022 घोषणा क" तार"ख /Date Of Pronouncement: 22.02.2023 आदेश/O R D E R Per Annapurna Gupta: This Appeal Is Preferred By The Revenue Against The Order Of The Learned Commissioner Of Income-Tax (Appeals)-13, Ahmedabad (Hereinafter Referred To As “Cit(A)”) Dated 22.01.2020 Passed U/S 250(6) Of The Income-Tax Act, 1961, (Hereinafter Referred To As “The Act”) For Assessment Year (Ay) 2004-05. 2. The Grounds Of Appeal Raised By The Revenue Read As Under:

For Appellant: Shri D.M. Rindani, ARFor Respondent: Shri Shramdeep Sinha, CIT-DR
Section 147Section 148Section 149Section 149(1)(c)Section 149(3)Section 250(6)

Gadgil vs. Lal & Co. (1964) 53 ITR 231 (SC). In that case, a notice was issued against the assessee as an agent of a non-resident on 27th March, 1957, and that notice related to the asst. yr. 1954-55. Under cl. (iii) of the proviso ... Finance Act, 1956, a notice of assessment or reassessment could not be issued against a person deemed to be an agent of a non-resident after the expiry of one year from the end of the year of assessment.The right to commence a proceeding for assessment against the assessee

Girdharbhai Haribhai Gajera, Surat vs. ITO(International Taxation), Surat

In the result, additional grounds raised by the assessee is allowed

ITA 143/SRT/2019[2015-16]Status: DisposedITAT Surat22 Feb 2023AY 2015-16

Bench: Shri Pawan Singh, Jm &Dr. A.L.Saini, Am आयकर अपील सं./Ita No.143/Srt/2019 (िनधा"रणवष" / Assessment Year: (2015-16) (Physical Court Hearing) Girdharbhai Haribhai Gajera Income Tax Officer 1,Vrushal Nagar, Opp. (International Taxation), 107, 1St Vs. Ktargam Police Station, Floor, Anavil Business Centre, Katargam Road, Surat-35004 Adajan-Hazira Road, Opp. Star Bazar, Adajan, Surat-395009 "थायीलेखासं./जीआइआरसं./Pan/Gir No.: Abepg 7339 M (Assessee ) (Respondent)

For Appellant: Shri Hiren R.Vepari, C.AFor Respondent: Shri Vinod Kumar, Sr-D.R
Section 142(1)Section 143(2)Section 143(3)Section 2(14)Section 271Section 45(2)

appeal.” 3. The relevant material facts, as culled out from the material on record, are as follows. The assessee before us is a non-resident (Individual) and filed his return of income on 15.09.2015 declaring total income at Rs.3,45,720/-. The case of the assessee was selected for scrutiny ... gains, is determined by a review of all the facts and circumstances surrounding the transaction”. The court held that if an actual controlling Non-Resident Enterprise (NRE) makes an indirect transfer through abuse of organization form / legal form and without reasonable business purpose, which results in tax avoidance then

ACIT, Circle-3(1)(1) Int. Taxation, New Delhi vs. Thicom Public Company Ltd., New Delhi

Appeal of the revenue is dismissed

ITA 7886/DEL/2019[2016-17]Status: DisposedITAT Delhi21 Feb 2023AY 2016-17

Bench: Shri G.S. Pannu, Hon’Ble & Shri Anubhav Sharmaacit, Vs. Thicom Public Company Ltd, Central Circle-3(1)(1), C/O. Mohinder Puri & Co, International Taxation Cas, 1Ad, Vandhana, 11, New Delhi Tolstoy Marg, New Delhi (Appellant) (Respondent) Pan: Aagcs4481E

For Appellant: Shri Jatinder Singh, CAFor Respondent: Shri Parikshit Singh, CA
Section 143(3)Section 144C(1)Section 9

engaged in the business of providing digital broadcast service through its transponders to its customers, both residents in India as well as non-residents. It renders these services to its customers through the satellite THAICOM-7, which has a footprint over a wide geographical region including India. It had disclosed

Bharat Sanchar Nigam Ltd., New Delhi vs. ACIT, New Delhi

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

ITA 1989/DEL/2017[2008-09]Status: DisposedITAT Delhi20 Feb 2023AY 2008-09

Bench: Shri N. K. Billaiya & Shri Anubhav Sharmabharat Sanchar Nigam Ltd, Vs. Acit, Taxation Section, First Floor, Circle-6(2), Bharat Sanchar Bhawan, New Delhi Janpath, New Delhi-11001 (Appellant) (Respondent) Pan:Aabcb5576G

For Appellant: Sh. Tarandeep Singh, AdvFor Respondent: Sh. Sukesh Kumar Jain, CIT DR
Section 143(3)Section 147Section 194HSection 250Section 40Section 9(1)(vi)Section 9(1)(vii)

inserted vide Finance Act, 2012 (curative in nature) are fulfilled. Addition on account of IUC charges paid to foreign / non-resident telecom operators 7. That on the facts and circumstances of the case and in law, the learned CIT(A) has erred in confirming the disallowance ... provisions of Section 40(a) (ia) of the Act on account of alleged non-deduction of TDS on IUC /international roaming charges payable to Non-resident Bharat Sanchar Nigam Ltd Vs ACIT Telecom Operators ('NTOS") by treating the same to be in the nature of 'royalty' under the provisions

M/S Netafim Ltd., Gujarat vs. ITO (International Taxation), New Delhi

In the result, both the appeals are partly allowed

ITA 975/DEL/2016[2011-12]Status: DisposedITAT Delhi20 Feb 2023AY 2011-12

Bench: Shri Saktijit Dey & Dr. B.R.R. Kumarassessment Year: 2010-11 With Assessment Year: 2011-12

Section 143(3)Section 144C(13)

hence, taxable in terms of Article 13 of Indian – Israel Double Taxation Avoidance Agreement (DTAA). 3. Briefly the facts are, the assessee is a non-resident corporate entity incorporated in Israel and a tax resident of Israel. In the previous year relevant to assessment years under dispute, the assessee