“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

Income Tax Officer-16(1)(2), Mumbai vs. Gama Entertainment Systems Pvt. Ltd., Mumbai

In the result, the In the result, the appeal filed by the Revenue is dismissed

ITA 7175/MUM/2018[2012-13]Status: DisposedITAT Mumbai10 Jun 2022AY 2012-13

Bench: Shri Om Prakash Kant () & Shri Rahul Chaudhary () Assessment Year: 2012-13 Income Tax Officer-16(1)(2), M/S Gama Entertainment 436-A, Aayakar Bhavan, Systems Pvt. Ltd., M.K. Road, Vs. 103, A Wing, Sai Commercial Mumbai-400020. Centre, Gowandi Station Road, Deonar, Gowandi (East), Mumbai-400088. Pan No. Aadcg 3492 N Appellant Respondent Revenue By : Mr. Hoshang B. Irani, Dr Assessee By : Mr. Parth Navandar, Ar Date Of Hearing : 27/04/2022 Date Of Pronouncement : 10/06/2022

For Appellant: Mr. Parth Navandar, ARFor Respondent: Mr. Hoshang B. Irani, DR

Section 68

year 14 and year under consideration is AY 12 consideration is AY 12-13.The share application is by Non 13.The share application is by Non-resident and section 68 is applicable for resident investor only. Section 56(2Xvib) was 68 is applicable for resident investor only. Section 56(2Xvib

DCIT 1(1)(2), Mumbai vs. M/S Goldman Sachs India Finance P.Ltd, Mumbai

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

ITA 3695/MUM/2019[2015-16]Status: DisposedITAT Mumbai09 Jun 2022AY 2015-16

Bench: Shri Prashant Maharishi, Am & Shri Pavan Kumar Gadale, Jm

For Appellant: Shri Madhur Agrawal, ARFor Respondent: Shri Hoshang B. Irani, DR

Section 250Section 271(1)(c)Section 40

Erred in disallowing an amount of Rs 1,700,000 under section 40(a)(1) of the Act, being amounts paid to non-resident group entities which are in the nature of reimbursement of certain expenses. 2. Erred in not appreciating that, out of Rs 1,700,000 taxes have ... Ld.CIT(A) erred in deleting the disallowance, of Rs. 3,06,00,000/-, made on a/c of non- withholding of taxes to non-residents." 2. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in not appreciating the fact that the assessee

Goldman Sachs India Finance P.Ltd, Mumbai vs. ACIT 1(1)(2), Mumbai

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

ITA 3674/MUM/2019[2015-16]Status: DisposedITAT Mumbai09 Jun 2022AY 2015-16

Bench: Shri Prashant Maharishi, Am & Shri Pavan Kumar Gadale, Jm

For Appellant: Shri Madhur Agrawal, ARFor Respondent: Shri Hoshang B. Irani, DR

Section 250Section 271(1)(c)Section 40

DCIT(It)-3(3)(2), Mumbai vs. Venu Raman Kumar, Mumbai

In the result, appeal by the Revenue is dismissed

ITA 3559/MUM/2019[2007-08]Status: DisposedITAT Mumbai09 Jun 2022AY 2007-08

Bench: Shri M Balaganesh & Shri Pavan Kumar Gadaledcit (It) – 3(3)(2) Vs. Shri Venu Raman 16Th Floor, Room No. Kumar, 1634, Air India Bldg, Flat No. 2, Hermes Nariman Point, House-Iii, Mumbai – 400020. Worli Sea Face, Mumbai – 400025. "थायी लेखा सं./जीआइआर सं./Pan/Gir No. : Abapk9122E Appellant .. Respondent Appellant By : Shri.Achal Sharma. Cit. Dr Respondent By : Shri.Vijay Mehta.Ar Date Of Hearing 01.06.2022 Date Of Pronouncement 13.06.2022 आदेश / O R D E R Per Pavan Kumar Gadale Jm: The Revenue Has Filed The Appeal Against The Order Of The Commissioner Of Income Tax (Appeals) – 57, Mumbai Passed U/S 271(1)(C) & 250 Of The Income Tax Act, 1961. The Revenue Has Raised The Following Grounds Of Appeal.

For Appellant: Shri.Achal Sharma. CIT. DRFor Respondent: Shri.Vijay Mehta.AR

Section 114Section 271Section 271(1)(c)Section 5(2)

Venu Raman Kumar, Mumbai whatever source derived' which accrues or arises or is deemed to accrue or arise in India in case of a non-resident, the quantum addition was in accordance with law and as the assessee had offered no explanation about the source and nature of deposits ... alter any ground or add a new ground which may be necessary. 2. The brief facts of the case that, the assessee is a non-resident(NRI). The assessee has filed the return of income on 31/10/2007 disclosing a total income of Rs.79,36,613/-.The Assessing officer (A.O.) based

M/S. Brillio Technologies Private Limited (Formerly Known As Collabera Solutions Private Limited), Bangalore vs. Deputy Commissioner of Income Tax, Circle-1(1)(1), Bangalore

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

ITA 128/BANG/2022[2017-18]Status: DisposedITAT Bangalore08 Jun 2022AY 2017-18

Bench: Smt. Beena Pillai & Ms. Padmavathy S

For Appellant: Shri Naresh K. Jain, AdvocateFor Respondent: Shri M S Nethrapal, Addl. DIT

Section 143(1)Section 143(3)Section 92(1)Section 92B(1)

transaction of providing SWD Services were “international transaction” i.e., a transaction between two or more associated enterprises, either or both of whom are non-residents, in the nature of purchase, sale or lease of tangible or intangible property, or provision of services, or lending or borrowing money, or any other

DCIT (It) 2(1)(1), Mumbai vs. Credit Suisse (Singapore) Ltd., Mumbai

In the result, appeal by the Revenue for assessment year 2015–16

ITA 7262/MUM/2019[2015-16]Status: DisposedITAT Mumbai06 Jun 2022AY 2015-16

Bench: Shri Pramod Kumar & Shri Sandeep Singh Karhail

For Appellant: Shri Percy Pardiwala a/wFor Respondent: Shri Milind Chavan, Sr. DR

Section 250

order to decide the issue at hand. Section 5(2) of the Act provides that the total income of a person who is non-resident includes all income from whatever source derived, which is received or deemed to be received in India; or accrues or arises or is deemed ... books of the statutory agent can be treated as incomes accrued, arisen, or deemed to have accrued or arisen in India to the non-resident assessees during the relevant year. This takes us to s. 9 of the Act. It is urged that the commission amounts should be treated

DCIT(It)- 2(1)(1), Mumbai vs. Credit Suisse (Singapore) Ltd., Mumbai

In the result, appeal by the Revenue for assessment year 2015–16

ITA 6098/MUM/2019[2014-15]Status: DisposedITAT Mumbai06 Jun 2022AY 2014-15

Bench: Shri Pramod Kumar & Shri Sandeep Singh Karhail

For Appellant: Shri Percy Pardiwala a/wFor Respondent: Shri Milind Chavan, Sr. DR

Section 250

Sri Tanzing Tashi, Mysore vs. The Income Tax Officer (International Taxation), Ward-1(1), Bangalore

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

ITA 187/BANG/2022[2017-18]Status: DisposedITAT Bangalore01 Jun 2022AY 2017-18

Bench: Shri B. R. Baskaranit(It)A No.187/Bang/2022 Assessment Year : 2017-18 Shri. Tanzing Tashi, Ito (International Taxation), Vs. O B M Road, Koppa, Ward – 1(1), Bylukuppe, Periyapatna Taluk Bengaluru. Mysore – 571 104. Pan : Aotpt 1710 P Appellant Respondent Assessee By : Shri. V. Srinivasan, Advocate Revenue By : Shri. Ganesh R Ghale, Standing Counsel For Department. Date Of Hearing : 30.05.2022 Date Of Pronouncement : 01.06.2022 O R D E R

For Appellant: Shri. V. Srinivasan, AdvocateFor Respondent: Shri. Ganesh R Ghale, Standing Counsel for Department

Section 133(6)Section 69

bank account the demonetization period. 2. The facts relating to the issue are stated in brief. The assessee is an individual and is non-resident. During the year under consideration, the assessee has deposited cash of Rs.15 lakhs during the demonetization period. The assessee explained the sources ... Coffee Curing Works in support of his claim of sale of coffee seeds. The Ld AR submitted that the assessee is a non-resident and he was not present in India during the year under consideration. Hence, it is not a case, where the assessee could have generated any undisclosed

Mapei Construction Products (India) Private Limited, Bangalore vs. Assistant Commissioner of Income Tax, Circle-4(1)(2), Bangalore

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

ITA 283/BANG/2021[2016-17]Status: DisposedITAT Bangalore01 Jun 2022AY 2016-17

Bench: Shri. Chandra Poojari & Smt. Beena Pillaiit(Tp)A No. 283/Bang/2021 Assessment Year : 2016-17 M/S. Mapei Construction Products (India) Pvt. Ltd., The Assistant A01 & B01, Solus Jain Commissioner Of Heights, Income Tax, 1St Floor, 1St Cross, Circle 4 (1)(2), J C Road, Vs. Bangalore. Bangalore – 560 002. Pan: Aahcm0464A Appellant Respondent : Shri S. Ramasubramanyam, Assessee By Ca : Shri Janardhan, Addl. Cit Revenue By Dr Date Of Hearing : 04-03-2022 Date Of Pronouncement : 01-06-2022 Order Per Beena Pillaipresent Appeal Is Filed By The Assessee Against Final Assessment Order Dated 24/03/2021 Passed By The Ld.Acit, Under National Assessment Centre, New Delhi, Under Section 143(3) Read With Section 143(3A) & (3B) Of The Act, For The Assessment Year 2016- 17 On Following Grounds Of Appeal: “1. Jurisdiction 1.1. That The Learned Lower Authorities Erred In Law & On Facts In Referring The Case To The Learned Transfer Pricing

For Respondent: Shri S. Ramasubramanyam

Section 115JSection 143Section 143(3)Section 40Section 92C

income is said to have accrued to the payee ignoring the fact that no income chargeable to tax in India has accrued to non-resident payee.. 3.5. Without prejudice to the above grounds, the learned lower authorities ought to have given a direction that

M/S. Stonehill Education Foundation, Bengaluru vs. Commissioner of Income Tax(Appeal)-12, Bengaluru

In the result, appeals filed by the assessee for both the years under consideration partly stands allowed for statistical purposes

ITA 2061/BANG/2019[2017-18]Status: DisposedITAT Bangalore01 Jun 2022AY 2017-18

Bench: Shri. Chandra Poojari & Smt. Beena Pillai

For Appellant: Shri Ajay Roti, CA

Section 195Section 201Section 201(1)

hold that the payment made by assessee to the US entity and swiss entity is towards license to use the database maintained by the non-resident entity, and therefore, is to be regarded as ‘royalty’. Before us the Ld.AR placed reliance on the recent decision of Hon’ble Supreme Court ... 2061/Bang/2019 the payments were made, by the assessee in lieu of the services rendered. The services rendered by the non-residents are to be analysed based on the DTAA with respective countries. 5. Taking a considered view, we deem it appropriate to remit this issue back to the Ld.AO

M/S. Stonehill Education Foundation, Bengaluru vs. Commissioner of Income Tax(Appeal)-12, Bengaluru

In the result, appeals filed by the assessee for both the years under consideration partly stands allowed for statistical purposes

ITA 2060/BANG/2019[2016-17]Status: DisposedITAT Bangalore01 Jun 2022AY 2016-17

Bench: Shri. Chandra Poojari & Smt. Beena Pillai

For Appellant: Shri Ajay Roti, CA

Section 195Section 201Section 201(1)

United Breweries Ltd, Bengaluru vs. Deputy Commissioner of Income Tax, Circle-7(1)(1), Bengaluru

ITA 2569/BANG/2017[2013-14]Status: DisposedITAT Bangalore01 Jun 2022AY 2013-14

Bench: Shri N.V. Vasudevan, Vice Preseident & Shri Padmavathy S

For Appellant: Shri K.R. Vasudevan, AdvocateFor Respondent: Shri Sumer Singh Meena, CIT(DR)(ITAT), Bengaluru

Section 143(3)Section 92Section 92B(1)

providing services by HIBV to Assessee was “international transaction” i.e., a transaction between two or more associated enterprises, either or both of whom are non-residents, in the nature of purchase, sale or lease of tangible or intangible property, or provision of services, or lending or borrowing money ... proviso to section 40(a)(ia); and 5.8 That the learned AO has erred in law and on facts in making disallowance of Non-Resident payments u/s 40(a)(i) without appreciating that TDS on such payments have been deducted and deposited within the due date of filing of return

Play Games 24 X 7 Private Limited, Mumbai vs. Principal Commissioner of Income Tax - 13, Mumbai

ITA 3600/MUM/2018[2013-14]Status: DisposedITAT Mumbai31 May 2022AY 2013-14

Bench: Shri M. Balaganesh & Shri Kuldip Singhassessment Year: 2013-14

For Appellant: Shri P. J. Pardiwala, A.RFor Respondent: Ms. Surabhi Sharma, D.R

Section 143(3)Section 163Section 263Section 40

Officer. The Assessing Officer has proceeded on the basis that as per the provisions of Section 195 of the Act any amount paid to non-resident will attract this provision and the assessee is liable to make TDS except as provided under Section 195(2) or under Section 197 where ... person “may make an application” as may be prescribed. In the present case, the assessee was very well aware that Facebook, Ireland is a non-resident and the advertisement payment made to Facebook, Ireland will not come under the purview of TDS and, therefore, has chosen not to deduct

Marriot International Inc, Mumbai vs. Addl DIT (It) RG 4, Mumbai

In the result, appeals by the assessee are allowed for statistical purpose

ITA 2364/MUM/2017[2011-12]Status: DisposedITAT Mumbai31 May 2022AY 2011-12

Bench: Shri Pramod Kumar & Shri Sandeep Singh Karhail

For Appellant: Shri Paras SavalaFor Respondent: Shri Milind Chavan, Sr. D.R

Section 163Section 195Section 250

then whether the tax has been deducted by the payer or not and whether they can be held to be agent of the non-resident. However, the learned Assessing Officer before proceeding against any other assessee or this assessee may issue requisite notice. In view of the above facts

Marriot International Inc, Mumbai vs. DCIT (It) 3(2)(1), Mumbai

In the result, appeals by the assessee are allowed for statistical purpose

ITA 2363/MUM/2017[2012-13]Status: DisposedITAT Mumbai31 May 2022AY 2012-13

Bench: Shri Pramod Kumar & Shri Sandeep Singh Karhail

For Appellant: Shri Paras SavalaFor Respondent: Shri Milind Chavan, Sr. D.R

Section 163Section 195Section 250

Sri Vijay Devaraje Urs, Mysore vs. The Income Tax Officer, (International Taxation), Ward-1(1), Bangalore

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

ITA 311/BANG/2022[2017-18]Status: DisposedITAT Bangalore31 May 2022AY 2017-18

Bench: Shri B.R. Baskaranit(It)A No. 311/Bang/2022 (Assessment Year: 2017-18) Shri Vijay Devaraje Urs The Income Tax Officer G-20, Brigade Elite-1 (Intel Taxation), Ward -1(1) Vs. Krs Road, Vontikoppalam Bengaluru Mysore - 570002 Pan – Aempu7854E Appellant Respondent Appellant By: Ms. Sunaiana Bhatia, Advocate Respondent By: Shri Ganehs R. Ghale Standing Counsel For Revenue Date Of Hearing: 30.05.2022 Date Of Pronouncement: 31.05.2022

For Appellant: Ms. Sunaiana Bhatia, AdvocateFor Respondent: Shri Ganehs R. Ghale

Section 133(6)Section 148Section 69

relating to cash deposits made during the demonetisation period. 3. The facts relating to the case are stated in brief. The assessee is a non-resident and it was noticed that he has deposited a sum of Rs.10,00,000/- in his bank account maintained with the Canara Bank during

Muthuvairavan Gnanasakthi, Thanjavur vs. The Income Tax Officer (International Taxation), Ward-1(1), Bangalore

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

ITA 243/BANG/2022[2017-18]Status: DisposedITAT Bangalore31 May 2022AY 2017-18

Bench: Shri B.R. Baskaranit(It)A No. 243/Bang/2022 (Assessment Year: 2017-18) Shri Muthuvairavan Gnanasakthi The Income Tax Officer 1/108, West Street, Nadiyam Post Ward - Intl. Taxation - 1(1) Vs. Peravurani Taluk, Thanjavur Bengaluru Tamil Nadu, Pin 614802 Pan – Akgpg6019F Appellant Respondent

For Appellant: Shri Gangadhar Sastry, ITPFor Respondent: Shri Ganesh R. Ghale

Section 144Section 69

Axis Bank during the demonetisation period. Though the AO called for explanations from the assessee, the assessee simply submitted that he was a non-resident during the year under 2 IT(IT)A No. 243/Bang/2022 Shri Muthuvairavan Gnanasakthi consideration. It was noticed by the AO that assessee has not given

M/S Xindia Steels Limited, Koppal vs. The Assistant Commissioner of Income Tax Circle-1, Bellary

In the result, the appeal by the assessee is allowed

ITA 361/BANG/2019[2014-15]Status: DisposedITAT Bangalore31 May 2022AY 2014-15

Bench: Shri N.V. Vasudevan, Vice Preseident & Shri Padmavathy Sassessment Year : 2014-15

For Appellant: Smt. Soumya K., AdvocateFor Respondent: Shri Sankar Ganesh, Jt.CIT(DR)(ITAT), Bengaluru

Section 143

assessee is a company carrying on the business of manufacture of Iron Ore Pellets. The majority shareholding of the company is held by non-resident Chinese corporations and roughly 55% held by Chinese Government Companies and about 12 % held by an American Corporate. 4. The assessee filed return of income

M/S. Madura Coats Private Limited, Bangalore vs. Deputy Commissioner of Income Tax., (International Transaction), Circle- 1(2), Bangalore

In the result, appeals filed by assessee for A

ITA 1345/BANG/2019[2017-18]Status: DisposedITAT Bangalore31 May 2022AY 2017-18

Bench: Smt. Beena Pillai & Ms. Padmavathy Sit(It)A Nos. 1344 & 1345/Bang/2019 Assessment Years : 2016-17 & 2017-18 M/S. Madura Coats Pvt. The Deputy Ltd., Commissioner Of 7Th Floor, Jupiter Income Tax Prestige Technology (International Park, Vs. Taxation), Outer Ring Road, Circle – 1(2), Bangalore – 560 103. Bangalore. Pan: Aabcm8297K Appellant Respondent Assessee By : Shri Ajay Rotti, Ca : Shri Shehnawaz Ul Rahaman, Revenue By Addl. Cit (Dr) Date Of Hearing : 13-04-2022 Date Of Pronouncement : 31-05-2022 Order Per Beena Pillaipresent Appeals Are Filed By Assessee Against Order Dated 30.03.2019 Passed By Ld.Cit(A)-12, Bangalore For A.Ys. 2016-17 & 2017-18. It Is Submitted That The Issues Alleged By Assessee In Both These Years Are Identical & On Similar Facts. 2. Brief Facts Of The Case Are As Under: 2.1 Madura Coats Pvt Ltd (Mcpl) Is An Indian Company Carrying On The Business As Manufacturer & Merchant Of Sewing Threads & Other Goods, Possesses The Requisite Expertise & Experience By Virtue Of Having Several Qualified Personnel In Its Employment. During The Course Of Verification Conducted Us

For Appellant: Shri Ajay Rotti, CA

Section 195Section 201(1)

offered to tax. The Ld.AO was of the opinion that the Bandwidth charges are chargeable to tax in India in the hands of the non-resident(J&P Coats). The Ld.AO thus called upon assessee to furnish details as to why the assessee should not be treated as ‘assessee ... appeal, at any time before or during the hearing of the appeal.” 4. The Ld.AR submitted that the question whether a payment to a non-resident is in the nature of royalty or not has to be tested in the light of the relevant provisions of DTAA between India

M/S. Madura Coats Private Limited, Bangalore vs. Deputy Commissioner of Income Tax., (International Transaction), Circle- 1(2), Bangalore

In the result, appeals filed by assessee for A

ITA 1344/BANG/2019[2016-17]Status: DisposedITAT Bangalore31 May 2022AY 2016-17

For Appellant: Shri Ajay Rotti, CA

Section 195Section 201(1)