“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

Tata Consultancy Services Ltd, Mumbai vs. Asst CIT Ltu-1, Mumbai

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

ITA 1650/MUM/2016[2011-12]Status: DisposedITAT Mumbai06 Apr 2022AY 2011-12

Bench: Shri Prashant Maharishi & Shri Sandeep Singh Karhail

For Appellant: Shri Porus Kaka, Sr. AdvocateFor Respondent: Ms. Vatsalaa Jha, CIT–DR

Section 115JSection 143(3)Section 144C(1)Section 144C(13)Section 144C(5)Section 2(43)Section 37Section 40Section 90Section 91

foreign sales/marketing agents in connection with assessee‟s export business. The aforesaid commission was paid by the assessee outside India to non-resident agents operating outside India. During the assessment proceedings, the Assessing Officer noted that the assessee has not deducted TDS on commission paid to non- residents under section ... 17/Mum./2011 ITA no.1650/Mum./2016 ITA no.1054/Mum./2016 43. During the course of hearing, learned Senior Counsel submitted that the payment of commission to non-resident agents are not chargeable to tax in India under section 5 read with section 9 of the Act as the non- resident agents operated

Edunxt Global Sdn Bhd, Malaysia vs. The Deputy Commissioner of Income Tax, Circle- 1(1), International Taxation, Bengaluru

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

ITA 2496/BANG/2017[2014-15]Status: DisposedITAT Bangalore30 Mar 2022AY 2014-15

Bench: Shri. Chandra Poojari & Smt. Beena Pillaiit(It)A No. 2496/Bang/2017 Assessment Year : 2014-15 M/S. Edunxt Global Sdn Bhd, The Deputy Unit A(Ii) Level 5. Commissioner Of Income Menara Shell, Tax, 211 Jalan Tun Circle 1(1), Sambathan, International Taxation, Kuala Lumpur, Vs. Bangalore. My – 50470, Malaysia. Appellant Respondent Assessee By : Shri Padamchand Khincha, Ca : Shri K.V. Aravind, Advocate & Revenue By Standing Counsel For Revenue Date Of Hearing : 23-03-2022 Date Of Pronouncement : 30-03-2022 Order Per Beena Pillaipresent Appeal By Non Resident Assessee Arises Out Of Final Assessment Order Dated 26.09.2017 Passed By The Ld.Dcit(It), Circle -1(1), Bangalore For Assessment Year 2014-15 On Following Grounds Of Appeal: “General & Legal Grounds 1. The Order Passed By The Learned Assessing Officer & The Directions Of Hon'Ble Drp To The Extent Prejudicial To The Appellant Is Had In Law & Liable To Be Quashed.

For Appellant: Shri Padamchand Khincha, CA

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

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 the resale/use of the computer software through EULAs/distribution agreements, is not the payment of royalty

Arvind Hanjarimal Jain, Mumbai vs. Asst CIT 31 (2), Mumbai

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

ITA 270/MUM/2020[2012-13]Status: DisposedITAT Mumbai29 Mar 2022AY 2012-13

Bench: Shri S. Rifaur Rahman, Hon'Ble & Shri Amarjit Singh, Hon'Ble

For Appellant: Shri Jain DixitFor Respondent: Shri Mehul Jain

Section 132Section 133(6)Section 139Section 143Section 143(2)Section 143(3)Section 148Section 154

that any part o f the share capital represented the company's own income from undisclosed sources. It was nobody's case that the non-resident Indian company was a bogus or non- existent company or that the amount subscribed by the company by way of share subscription

Arvind Hanjarimal Jain, Mumbai vs. Asst CIT 31 (2), Mumbai

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

ITA 269/MUM/2020[2011-12]Status: DisposedITAT Mumbai29 Mar 2022AY 2011-12

Bench: Shri S. Rifaur Rahman, Hon'Ble & Shri Amarjit Singh, Hon'Ble

For Appellant: Shri Jain DixitFor Respondent: Shri Mehul Jain

Section 132Section 133(6)Section 139Section 143Section 143(2)Section 143(3)Section 148Section 154

Arvind Hanjarimal Jain, Mumbai vs. Asst CIT 31 (2), Mumbai

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

ITA 268/MUM/2020[2010-11]Status: DisposedITAT Mumbai29 Mar 2022AY 2010-11

Bench: Shri S. Rifaur Rahman, Hon'Ble & Shri Amarjit Singh, Hon'Ble

For Appellant: Shri Jain DixitFor Respondent: Shri Mehul Jain

Section 132Section 133(6)Section 139Section 143Section 143(2)Section 143(3)Section 148Section 154

Arvind Hanjarimal Jain, Mumbai vs. Asst CIT 31 (2), Mumbai

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

ITA 267/MUM/2020[2009-10]Status: DisposedITAT Mumbai29 Mar 2022AY 2009-10

Bench: Shri S. Rifaur Rahman, Hon'Ble & Shri Amarjit Singh, Hon'Ble

For Appellant: Shri Jain DixitFor Respondent: Shri Mehul Jain

Section 132Section 133(6)Section 139Section 143Section 143(2)Section 143(3)Section 148Section 154

M/S Continental Automotive Components India Private Limited, Bangalore vs. Deputy Commissioner of Income Tax Circle-2(1)(1), Bangalore

In the result, the appeal is partly allowed

ITA 129/BANG/2019[2014-15]Status: DisposedITAT Bangalore29 Mar 2022AY 2014-15

Bench: Shri N.V. Vasudevan & Shri B. R. Baskaranassessment Year :2014-15 M/S. Continental Automotive Vs. Dcit, Components India Pvt. Ltd., Circle – 2(1)(1), Plot No.53B, Bommasandra Industrial Bengaluru. Area, Hosur Road, Attibele Hobli, Anekal Taluk, Bengaluru–560 099. Pan : Aakcs 9578 C Appellant Respondent Assessee By : Shri. T. Suryanarayana, Senior Advocate Revenue By : Shri. Mudavathu Harish Chandra Naik, Cit(Dr)(Itat), Bengaluru. Date Of Hearing : 21.03.2022 Date Of Pronouncement : 29.03.2022 O R D E R

For Appellant: Shri. T. Suryanarayana, Senior AdvocateFor Respondent: Shri. Mudavathu Harish Chandra Naik, CIT(DR)(ITAT), Bengaluru

Section 143(3)Section 92

defined in section 92B(1) or the Act to mean a transaction between two or more "associated enterprises" either or both of whom are non-residents in the nature of inter alia purchase, sale or lease of intangible property or provision of services, or lending or borrowing money

Givaundan(India) Pvt. Ltd., Bangalore vs. ACIT, Ltu Cr 1, Bangalore

In the result the appeal filed by assessee stands allowed for statistical purposes

ITA 229/BANG/2015[2010-2011]Status: DisposedITAT Bangalore29 Mar 2022AY 2010-2011

Bench: Shri. B.R. Baskaran & Smt. Beena Pillaiit(Tp)A No. 229/Bang/2015 Assessment Year : 2010-11 M/S. Givaudan (India) The Assistant Pvt. Ltd., Commissioner Of Plot No. 26, 2Nd Cross, Income Tax, Jigani Industrial Area, Ltu, Bangalore – 562 106. Circle – 1, Vs. Pan: Aaacv7454J Bangalore. Appellant Respondent Assessee By : Shri Sumeet Khurana, Ca : Shri Sumer Singh Meena, Cit- Revenue By I Date Of Hearing : 11-01-2022 Date Of Pronouncement : 29-03-2022 Order Per Beena Pillaiit Is Submitted That The Main Appeal Was Heard By This Tribunal & Order Was Passed On 02/08/2019. However Grounds 6 & 7 Were Not Adjudicated Independently For Assessment Year 2010- 11. The Assessee Preferred Mp No.15/Bang/2020 Requesting For Adjudication Of These Grounds. 2. Accordingly The Present Appeal Is Fixed For Hearing For Adjudication Of Following Grounds: “6. That The Learned Ao & The Learned Panel Erred Both In Facts & Law In Confirming The Action Of The Learned Tpo Of Making An Adjustment To The Transfer Price Of The Appellant In Respect Of The Payment Of Royalty By Rs.27,67,42,242, Holding That The International Transaction

For Appellant: Shri Sumeet Khurana, CA

that the buyback of equity shares from an Associated Enterprise is an international transaction. 7.2. Disregarding the valuation guidelines on transfer of shares by non-resident prescribed by the Reserve Bank of India (`RBI') under circular no. 16 dated October 4, 2004, adopted by the Appellant for the valuation ... shares prescribed by the RBI. It is also submitted that the RBI Guidelines provides that in case the transfer of shares is by a non-resident, where the shares of an Indian company are not listed on a stock exchange, and if the amount of consideration payable for the transfer

M/S. Capco Technologies Private Limited, Bengaluru vs. Deputy Commissioner of Income Tax, Circle- 2(1)(1), Bangalore

In the result, appeal of the assessee is partly allowed

ITA 2436/BANG/2019[2015-16]Status: DisposedITAT Bangalore28 Mar 2022AY 2015-16

For Appellant: Shri. Sandeep Huilgol, AdvocateFor Respondent: Shri. Mudavathu Harish Chandra Naik, CIT(DR)(ITAT), Bengaluru

Section 143(3)Section 144C(13)Section 92Section 92(1)Section 92B(1)

Services to Capco Group companies was an “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

M/S Volvo India Pvt Ltd, Bangalore vs. Income Tax Officer(TDS), Bangalore

ITA 1195/BANG/2014[2012-13]Status: DisposedITAT Bangalore25 Mar 2022AY 2012-13

Bench: Shri George George K & Ms. Padmavathy S

For Appellant: Shri S Parthasarthy, AdvocateFor Respondent: Smt. Priyadarshini Besaganni, JCIT(DR)

Section 194CSection 194HSection 194ISection 194JSection 195Section 201Section 201(1)Section 40

assessee is not liable to deduct tax at source from the “yearend provisions” (b) The Provision for expenses included the commission expenses payable to non-resident commission agents and they are not liable to tax in India in their hands. Hence the provisions of sec.195 are not applicable. ITA No.1195/Bang/2014 ... brokerage, in sec. 194J Explanation(c) when payment made is Fees for Technical Service and Sec. 195 Expln.-1 when payment is made to non-resident. The reason for introduction of provisions such as Sec. 194(2) of the Act has been explained in CBDT circular No.550 dated

Ananya Ajay Mittal, Mumbai vs. DCIT CC 6 (4), Mumbai

In the result, appeals filed by the assessee are dismissed

ITA 6950/MUM/2019[2011-12]Status: HeardITAT Mumbai23 Mar 2022AY 2011-12

Bench: Shri S. Rifaur Rahman, Hon'Ble & Shri Amarjit Singh, Hon'Ble

For Appellant: Shri Piyush ChhajedFor Respondent: Ms. Sailaja Rai

Section 132(1)Section 6

provision, it becomes very clear that the person, if whose stay outside India is more than 182 days or more shall be treated as Non-Resident. Accordingly, Since, my number of days of stay outside India for the captioned year was more than a 182 days, I shall be considered ... Non-Resident of India (copy of statement towards detaisl of my number of days of stay outside India enclosed herewith vide Annexure A)” Further, the assessee in his reply dated 20.12.2016 had submitted that without prejudice to above submissions given by him any credit to foreign bank account along with

Play Games 24 X 7 Private Limited, Mumbai vs. Dy.CIT-13(1)(2), Mumbai

In the result, the appeal filed by the assessee is allowed whereas the Cross-objection filed by the Revenue is dismissed

ITA 1533/MUM/2019[2015-16]Status: DisposedITAT Mumbai23 Mar 2022AY 2015-16

Bench: Shri Promod Kumar () & Ms. Suchitra Kamble () Assessment Year: 2015-16

For Appellant: Mr. Percy J. Pardiwala, Sr. AdvocateFor Respondent: Mr. Chintamani V. Dingankar, Sr. DR

Section 195Section 40Section 9Section 9(1)(vii)

without acknowledging the fact that the Assessing Officer did not actually determine the taxability of payments and held that all payments to non-residents are liable to withholding of taxes under Section 195 of the Act. 2. Ground 2- Erred in concluding that the payments made to Facebook, Ireland (‘Facebook ... fact, the payments made to the Facebook cannot come under the purview of Section 9 of the Act as all the payments to non-resident are not liable to withhold taxes u/s 195 of the Act. The payments made to Facebook, Ireland towards banner advertisement expenses

M/S. Toyota Kirloskar Motor Private Limited, Ramanagar vs. Income Tax Officer, (TDS), Ltu, Bangalore

ITA 2392/BANG/2019[2011-12]Status: DisposedITAT Bangalore23 Mar 2022AY 2011-12

Bench: Shri N.V. Vasudevan & Shri B.R. Baskaranita No.2391 & 2392/Bang/2019 Assessment Years : 2010-11 & 2011-12

For Appellant: Shri Padamchand Khincha, A.RFor Respondent: Shri Sumer Singh Meena, D.R

Section 154Section 190Section 201Section 201(1)Section 37Section 40

assessee is not liable to deduct tax at source from the “yearend provisions” (b) The Provision for expenses included the commission expenses payable to non-resident commission agents and they are not liable to tax in India in their hands. Hence the provisions of sec.195 are not applicable ... brokerage, in sec. 194J Explanation(c) when payment made is Fees for Technical Service and Sec. 195 Expln.-1 when payment is made to non-resident. The reason for introduction of provisions such as Sec. 194(2) of the Act has been explained in CBDT circular No.550 dated

M/S. Toyota Kirloskar Motor Private Limited, Ramanagar vs. Income Tax Officer, (TDS), Ltu, Bangalore

ITA 2391/BANG/2019[2010-11]Status: DisposedITAT Bangalore23 Mar 2022AY 2010-11

Bench: Shri N.V. Vasudevan & Shri B.R. Baskaranita No.2391 & 2392/Bang/2019 Assessment Years : 2010-11 & 2011-12

For Appellant: Shri Padamchand Khincha, A.RFor Respondent: Shri Sumer Singh Meena, D.R

Section 154Section 190Section 201Section 201(1)Section 37Section 40

assessee is not liable to deduct tax at source from the “yearend provisions” (b) The Provision for expenses included the commission expenses payable to non-resident commission agents and they are not liable to tax in India in their hands. Hence the provisions of sec.195 are not applicable ... brokerage, in sec. 194J Explanation(c) when payment made is Fees for Technical Service and Sec. 195 Expln.-1 when payment is made to non-resident. The reason for introduction of provisions such as Sec. 194(2) of the Act has been explained in CBDT circular No.550 dated

Taj Tv Ltd., Mumbai vs. DCIT (It) 4(1)(2), Mumbai

In the result, the appeal by the assessee is allowed, while the appeal by the Revenue is dismissed in terms of our aforesaid findings

ITA 6588/MUM/2019[2012-13]Status: DisposedITAT Mumbai22 Mar 2022AY 2012-13

Bench: Shri Prashant Maharishi & Shri Sandeep Singh Karhail

For Appellant: Shri Madhur Agarwal a/wFor Respondent: Shri Milind S. Chavan, Sr. AR

Section 250Section 90(2)Section 92E

decisions including that of the Hon'ble Bombay High Court in the case of Set Satellite (Singapore) Pte Ltd. that payment made to the non-resident outside India for rendering the services of equipment outside India is not taxable in India. Hon'ble Delhi High Court in the case

M/S. Transworld Ict Solutions (P) Ltd., Bangalore vs. DCIT, Bangalore

In the result, both the appeals are partly allowed

ITA 1310/BANG/2010[2007-08]Status: DisposedITAT Bangalore22 Mar 2022AY 2007-08

Bench: Shri N. V. Vasudevan & Shri B. R. Baskaranit(Tp)A Nos.1309 & 1310/Bang/2010 Assessment Years : 2006-07 & 2007-08 M/S. Transworld Ict Solutions Pvt. Ltd., Vs. Dcit, Innovator, No.15, Hoody, Whitefield Road, Circle – 2(1), Mahadevapura Post, Bengaluru. Bengaluru – 560 048. Pan : Aabct 3824 F Assessee Respondent Assessee By : Shri. G. S. Prashanth, Ca Revenue By : Shri. Dilip, Advocate, Standing Counsel For Department Date Of Hearing : 17.03.2022 Date Of Pronouncement : 22.03.2022 O R D E R Per N V Vasudevan

For Appellant: Shri. G. S. Prashanth, CAFor Respondent: Shri. Dilip, Advocate, Standing Counsel for Department

Section 132Section 143(3)Section 153ASection 92Section 92(1)Section 92B(1)

providing SWD Services and ITeS 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

M/S. Transworld Ict Solutions (P) Ltd., Bangalore vs. DCIT, Bangalore

In the result, both the appeals are partly allowed

ITA 1309/BANG/2010[2006-07]Status: DisposedITAT Bangalore22 Mar 2022AY 2006-07

For Appellant: Shri. G. S. Prashanth, CAFor Respondent: Shri. Dilip, Advocate, Standing Counsel for Department

Section 132Section 143(3)Section 153ASection 92Section 92(1)Section 92B(1)

Biocon Ltd, Bangalore vs. Deputy Commissioner of Income Tax, Ltu, Bangalore

ITA 1248/BANG/2014[2012-13]Status: DisposedITAT Bangalore21 Mar 2022AY 2012-13

Bench: Shri N.V. Vasudevan & Shri B.R. Baskaranassessment Year : 2012-13

For Appellant: Shri Padamchand Khincha, A.RFor Respondent: Shri Sumer Singh Meena, D.R

Section 190Section 201Section 201(1)Section 40

assessee is not liable to deduct tax at source from the “yearend provisions” (b) The Provision for expenses included the commission expenses payable to non-resident commission agents and they are not liable to tax in India in their hands. Hence the provisions of sec.195 are not applicable. Biocon ... brokerage, in sec. 194J Explanation(c) when payment made is Fees for Technical Service and Sec. 195 Expln.-1 when payment is made to non-resident. The reason for introduction of provisions such as Sec. 194(2) of the Act has been explained in CBDT circular No.550 dated

Vanita Ramchandra Saprecanada, Mumbai vs. CIT, Vashi

In the result, the appeal filed by the assessee is allowed for statistical purpose

ITA 1670/MUM/2021[2016-17]Status: DisposedITAT Mumbai17 Mar 2022AY 2016-17

For Appellant: NoneFor Respondent: S. N. Kabra

Section 142(1)Section 143(2)Section 144Section 250

dated 20.12.2018 for A.Y. 2016-17. The grounds of appeal are as under: “1. The appellant is a non-resident residing in Canada. During the relevant assessment year she had sold a residential Flat in Kharghar for Rs.120,00,000. The long term capital gain on sale of Flat amounted ... appellate proceedings before us the ld. Counsel vehemently contended that ld. CIT(A) has not considered the submission of the assessee that assessee was Non-resident and the notice issued on ITBA Portal could not be accessed, therefore, the relevant detail could not be furnished before the assessing officer

DCIT, 4(2)(1), Mumbai vs. Ganpat Singhvi, Mumbai

In the result the appeal of the Revenue is dismissed

ITA 707/MUM/2019[2007-08]Status: HeardITAT Mumbai10 Mar 2022AY 2007-08

Bench: Shri Shamim Yahya (Am) & Shri Amarjit Singh (Jm)

assessees response as under:- “In reply to this, die assesses in his submission dt. 4.3.15 received on 9.3.15 stated that he is a non-resident u/s 6 of the Act. He contends that as per Section 5 of the Act the income that accrues or arises outside India does ... reproduced as under: "Subject to the provisions of this Act, the total income of any previous year of a person who is a non-resident includes all income from whatever source derived which — (a) is received or is deemed to be received in India in such year