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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

Nan Lion Ship Management Llc, Mumbai vs. Assistant Commissioner of Income Tax (International Taxation) -3(3)(1), Mumbai

In the result, the appeal filed by the assessee stands allowed

ITA 1857/MUM/2022[2019-20]Status: DisposedITAT Mumbai30 Dec 2022AY 2019-20

Bench: Shri Amit Shukla, Jm & Shri Gagan Goyal, Am आयकरअपीलसं./ I.T.A. No. 1857/Mum/2022 (निर्धारणवर्ा / Assessment Year: 2019-20) Acit (Int. Tax) – 3(3)(1), Nan Lian Ship Management 1630, 16Th Floor, Air India Llc Building Nariman Point, C/O- Chamber 2 & 3, Cosmos बिधम/ Mumbai-400 021 Trade Place, Ground Floor, Vs. Khatu Building, Opp-Bse, Fort, Mumbai-400 001 स्थायीलेखासं./जीआइआरसं./ Pan No. Aagcn0478E (अपीलाथी/Appellant) (प्रत्यथी / Respondent) : अपीलाथीकीओरसे/ Appellant By : Shri Nishit Gandhi /Dhanlaxmi Iyer, Ld. Ars प्रत्यथीकीओरसे/Respondent By : Shri Soumendu Kumar Das, Ld. Dr सुनवाईकीतारीख/ : 03.11.2022 Date Of Hearing घोषणाकीतारीख / : 30.12.2022 Date Of Pronouncement आदेश / O R D E R Per Amit Shukla: The Aforesaid Appeal Has Been Filed By The Assessee Against The Final Assessment Order Dated 27.05.2022, Passed By Ld. Ao U/S 2

For Appellant: Shri Nishit GandhiFor Respondent: Shri Soumendu Kumar Das
Section 144C(5)Section 2Section 44BSection 9(1)(vi)

order. We have also considered the written and oral submissions of the assessee. The fact of the matter is that the assessee is a non-resident entity. The assessee provided its ship for hire to an Indian company for a fixed period, for transportation of coal between two ports ... assessee submitted that, first of all, assessee has rightly offered the income u/s 44B of the Act for the reason that assessee is a non-resident company engaged in the business of operation of ships and therefore, income derived from business of operation of ships has to be taxed under