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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

Manab Chandra Ghosh, Kolkata vs. ACIT, Cir. 1(2), It, Kolkata

The appeal of the assessee is allowed

ITA 40/KOL/2024[2016-17]Status: DisposedITAT Kolkata27 Nov 2024AY 2016-17

Bench: Shri Rajesh Kumar & Shri Sonjoy Sarmai.T.A. No.40/Kol/2024 Assessment Year: 2016-17 Manab Chandra Ghosh………………..……………………………….…..……Appellant 5A, Banerjee Para, Behala, Kol-700060. [Pan: Ahspg9975H] Vs. Acit, Circle-1(2), It-Kolkata..........…..….…..….........……........……...…..…..Respondent Appearances By: Shri Nageswar Rao, Advocate, Appeared On Behalf Of The Appellant. Shri Pradip Kr. Biswas, Addl. Cit, Appeared On Behalf Of The Respondent. Date Of Concluding The Hearing : November 19, 2024 Date Of Pronouncing The Order : November 27, 2024 Order Per Sonjoy Sarma: The Present Appeal Is Filed By The Assessee Against The Order Dated 21.11.2022 Of The Commissioner Of Income Tax (Appeals)-22, Kolkata [Hereinafter Referred To As ‘Cit(A)’] Passed U/S 250 Of The Income Tax Act (Hereinafter Referred To As The ‘Act’) For Assessment Year 2016-17. 2. The Brief Facts Of The Case Are That The Assessee Is An Employee Of Ibm India Pvt. Ltd. (An Indian Company With Registered Office In Bangalore) & Was Undergone A Short-Term Assignment To Indonesia During The Relevant Assessment Year. During The Financial Year 2015-16, The Stayed 61 Days In India As Evident By The Passport Details Submitted Before The Assessing Officer. Consequently, The Assessee Claimed To Be A Non-Resident For The Assessment Year 2016-17 As Per The Provisions Of The Income Tax Act. During The Assessment Year In Question, The Assessee Received Salary Amounting To Rs.29,57,760/- In India, On Which Rs.7,06,207/- Was Deducted As Tax At Source As Per Form No.16 Filed By The Assessee. During The Relevant Assessment Year, The Assessee Also

Section 143(2)Section 250Section 5(2)Section 5(2)(b)

stayed 61 days in India as evident by the passport details submitted before the Assessing Officer. Consequently, the assessee claimed to be a non-resident for the assessment year 2016-17 as per the provisions of the Income Tax Act. During the assessment year in question, the assessee received salary ... assessee is now in appeal before this Tribunal. The primary contention of the assessee is as follows: a) the assessee was a non-resident during the relevant assessment year; b) only the income earned or accrued in India is taxable u/s 5(2) of the Act; c) the allowances received

Newgen Imaging Systems Pvt. Ltd., Chennai vs. DCIT, International Taxation-2(2), Chennai

In the result the grounds of appeal raised by the assesse is allowed

ITA 1626/CHNY/2024[2010-11]Status: DisposedITAT Chennai27 Nov 2024AY 2010-11

Bench: Shri Aby T Varkey & Shri Amitabh Shuklaआयकर अपील सं./Ita Nos.1626/Chny/2024 निर्धारण वर्ा /Assessment Years: 2010-11 Newgen Imaging Systems Private Deputy Commissioner Of Income Limited, International Taxation-2(2), No.268, Royapettah High Road, Chennai. Royapettah, Madras, Tamil Nadu-600014. [Pan: Aaacn2041B] (अपीलार्थी/Appellant) (प्रत्यर्थी/Respondent) : Shri G. Shiva Kumar, Advocate अपीलार्थी की ओर से/ Assessee By : Shri Keerthi Narayanan, Jcit प्रत्यर्थी की ओर से /Revenue By सुनवाई की तारीख/Date Of Hearing : 02.09.2024 घोषणा की तारीख /Date Of Pronouncement : 27.11.2024

For Appellant: Shri Keerthi Narayanan, JCIT
Section 201(1)Section 250Section 40Section 9(1)

Taxmann.com 42 (SC), wherein the Hon'ble Supreme Court has held that "the amount paid by resident Indian and end-user / distributors to non-resident computer software manufacturers / suppliers , as consideration for resale / use of computer software through EULAs / distribution agreement, is not payment of royalty for use of copyright

Deputy Commissioner of Income Tax Circle-1, Thane vs. Aarav Fragrances and Flavors Private Limited, Thane

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

ITA 546/MUM/2024[2016-17]Status: DisposedITAT Mumbai27 Nov 2024AY 2016-17

Bench: Shri Br Baskaran () & Shri Raj Kumar Chauhan () Assessment Year: 2016-17 Dy. Cit, Circle-1, Aarav Fragrances & Flavors Pvt. Room No. 22, B Wing, 6Th Floor, Ltd., Ashar I.T. Park, Road No. 16Z, Vs. Plot No. A-152/153 Wagle Industrial Wagle Indl. Estate, Area, Road No. 25, Midc, Thane-400604. Thane (W) – 400604. Pan No. Aagca 2145 K Appellant Respondent

For Appellant: Mr. Rajesh Athavale
Section 45Section 48

entity, calculated in the prescribed manner: Aarav Fragrances and Flavors Pvt. Ltd 4 Provided that in the case of an assessee, who is a non-resident, capital gains arising from the transfer of a capital asset being shares in, or debentures of, an Indian company shall be computed by converting ... further that where long-term capital gain arises from the transfer of a long-term capital asset, other than capital gain arising to a non-resident from the transfer of shares in, or debentures of, an Indian company referred to in the first proviso, the provisions of clause (ii) shall

K D Lite Developers Private Limited, Mumbai vs. Dy. Commissioner of Income Tax, TDS Circle 1(3), Mumbai

ITA 5357/MUM/2024[2018-19]Status: DisposedITAT Mumbai27 Nov 2024AY 2018-19

Bench: Shri Sandeep Gosain & Shri Prabhash Shankar

Section 132Section 194ASection 201Section 201(1)Section 250

section is only applicable to a resident. Thus, the provisions of section 194A are not applicable in case of payment of interest to a non-resident. 2. Payments made to non-residents are also covered under TDS mechanism. However, tax in such a case is to be deducted ... Trib) 75 (Mum) It was held in this case that reimbursement of expenses was not income in the hands of the non-resident and therefore, not liable to TDS under section 195 of the Act. It was further held that it is axiomatic that tax is charged on income

K D Lite Developers Private Limited, Mumbai vs. Dy. Commissioner of Income Tax, TDS Circle 1(3), Mumbai

ITA 5356/MUM/2024[2019-20]Status: DisposedITAT Mumbai27 Nov 2024AY 2019-20

Bench: Shri Sandeep Gosain & Shri Prabhash Shankar

Section 132Section 194ASection 201Section 201(1)Section 250

section is only applicable to a resident. Thus, the provisions of section 194A are not applicable in case of payment of interest to a non-resident. 2. Payments made to non-residents are also covered under TDS mechanism. However, tax in such a case is to be deducted ... Trib) 75 (Mum) It was held in this case that reimbursement of expenses was not income in the hands of the non-resident and therefore, not liable to TDS under section 195 of the Act. It was further held that it is axiomatic that tax is charged on income

K D Lite Developers Private Limited, Mumbai vs. Dy. Commissioner of Income Tax, TDS Circle 1(3), Mumbai

ITA 5354/MUM/2024[2020-21]Status: DisposedITAT Mumbai27 Nov 2024AY 2020-21

Bench: Shri Sandeep Gosain & Shri Prabhash Shankar

Section 132Section 194ASection 201Section 201(1)Section 250

section is only applicable to a resident. Thus, the provisions of section 194A are not applicable in case of payment of interest to a non-resident. 2. Payments made to non-residents are also covered under TDS mechanism. However, tax in such a case is to be deducted ... Trib) 75 (Mum) It was held in this case that reimbursement of expenses was not income in the hands of the non-resident and therefore, not liable to TDS under section 195 of the Act. It was further held that it is axiomatic that tax is charged on income

K D Lite Developers Private Limited, Mumbai vs. Dy. Commissioner of Income Tax, TDS Circle 1(3), Mumbai

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

ITA 5325/MUM/2024[2017-18]Status: DisposedITAT Mumbai27 Nov 2024AY 2017-18

Bench: Shri Sandeep Gosain & Shri Prabhash Shankar

Section 132Section 194ASection 201Section 201(1)Section 250

section is only applicable to a resident. Thus, the provisions of section 194A are not applicable in case of payment of interest to a non-resident. 2. Payments made to non-residents are also covered under TDS mechanism. However, tax in such a case is to be deducted ... Trib) 75 (Mum) It was held in this case that reimbursement of expenses was not income in the hands of the non-resident and therefore, not liable to TDS under section 195 of the Act. It was further held that it is axiomatic that tax is charged on income

K D Lite Developers Private Limited, Mumbai vs. Dy. Commissioner of Income Tax, TDS Circle 1(3), Mumbai

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

ITA 5305/MUM/2024[2016-17]Status: DisposedITAT Mumbai27 Nov 2024AY 2016-17

Bench: Shri Sandeep Gosain & Shri Prabhash Shankar

Section 132Section 194ASection 201Section 201(1)Section 250

section is only applicable to a resident. Thus, the provisions of section 194A are not applicable in case of payment of interest to a non-resident. 2. Payments made to non-residents are also covered under TDS mechanism. However, tax in such a case is to be deducted ... Trib) 75 (Mum) It was held in this case that reimbursement of expenses was not income in the hands of the non-resident and therefore, not liable to TDS under section 195 of the Act. It was further held that it is axiomatic that tax is charged on income

The Great Eastern Shipping Co. Ltd, Mumbai vs. The Deputy Commissioner of Income Tax, TDS, Circle 2(3), Mumbai

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

ITA 2778/MUM/2024[2019-20]Status: DisposedITAT Mumbai27 Nov 2024AY 2019-20

Bench: Shri Sandeep Gosain & Ms. Padmavathy S

Section 192(3)Section 201Section 220(2)Section 250

foreign waters, the Appellant was unable to determine at the start of the financial year as to which of the floating staff would be non-resident and which staff would become resident during the Financial Year on account of their stay in Indian waters or on Indian soil (on account ... they are non- residents, and if the vessel on which such employees are deployed, continues to work outside India, then the employee remains a non-resident. The salary earned outside Indian waters by a non-resident employee is not liable to tax in India as such salaries

The Great Eastern Shipping Co. Ltd, Mumbai vs. The Deputy Commissioner of Income Tax, TDS, Circle 2(3), Mumbai

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

ITA 2777/MUM/2024[2018-19]Status: DisposedITAT Mumbai27 Nov 2024AY 2018-19

Bench: Shri Sandeep Gosain & Ms. Padmavathy S

Section 192(3)Section 201Section 220(2)Section 250

foreign waters, the Appellant was unable to determine at the start of the financial year as to which of the floating staff would be non-resident and which staff would become resident during the Financial Year on account of their stay in Indian waters or on Indian soil (on account ... they are non- residents, and if the vessel on which such employees are deployed, continues to work outside India, then the employee remains a non-resident. The salary earned outside Indian waters by a non-resident employee is not liable to tax in India as such salaries

The Great Eastern Shipping Co. Ltd, Mumbai vs. The Deputy Commissioner of Income Tax, TDS Circle 2(3), Mumbai

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

ITA 2776/MUM/2024[2017-18]Status: DisposedITAT Mumbai27 Nov 2024AY 2017-18

Bench: Shri Sandeep Gosain & Ms. Padmavathy S

Section 192(3)Section 201Section 220(2)Section 250

foreign waters, the Appellant was unable to determine at the start of the financial year as to which of the floating staff would be non-resident and which staff would become resident during the Financial Year on account of their stay in Indian waters or on Indian soil (on account ... they are non- residents, and if the vessel on which such employees are deployed, continues to work outside India, then the employee remains a non-resident. The salary earned outside Indian waters by a non-resident employee is not liable to tax in India as such salaries

The Great Eastern Shipping Co. Ltd, Mumbai vs. The Deputy Commissioner of Income Tax, TDS Circle 2(3), Mumbai

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

ITA 2775/MUM/2024[2016-17]Status: DisposedITAT Mumbai27 Nov 2024AY 2016-17

Bench: Shri Sandeep Gosain & Ms. Padmavathy S

Section 192(3)Section 201Section 220(2)Section 250

foreign waters, the Appellant was unable to determine at the start of the financial year as to which of the floating staff would be non-resident and which staff would become resident during the Financial Year on account of their stay in Indian waters or on Indian soil (on account ... they are non- residents, and if the vessel on which such employees are deployed, continues to work outside India, then the employee remains a non-resident. The salary earned outside Indian waters by a non-resident employee is not liable to tax in India as such salaries

The Great Eastern Shipping Co. Ltd, Mumbai vs. The Deputy Commissioner of Income Tax, TDS, Circle 2(3), Mumbai

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

ITA 2774/MUM/2024[2015-16]Status: DisposedITAT Mumbai27 Nov 2024AY 2015-16

Bench: Shri Sandeep Gosain & Ms. Padmavathy S

Section 192(3)Section 201Section 220(2)Section 250

foreign waters, the Appellant was unable to determine at the start of the financial year as to which of the floating staff would be non-resident and which staff would become resident during the Financial Year on account of their stay in Indian waters or on Indian soil (on account ... they are non- residents, and if the vessel on which such employees are deployed, continues to work outside India, then the employee remains a non-resident. The salary earned outside Indian waters by a non-resident employee is not liable to tax in India as such salaries

The Great Eastern Shipping Co. Ltd, Mumbai vs. The Deputy Commissioner of Income Tax, TDS Circle 2(3), Mumbai

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

ITA 2773/MUM/2024[2014-15]Status: DisposedITAT Mumbai27 Nov 2024AY 2014-15

Bench: Shri Sandeep Gosain & Ms. Padmavathy S

Section 192(3)Section 201Section 220(2)Section 250

foreign waters, the Appellant was unable to determine at the start of the financial year as to which of the floating staff would be non-resident and which staff would become resident during the Financial Year on account of their stay in Indian waters or on Indian soil (on account ... employees who take up employment with the company generally for 60 days at a time. In such cases, the employees declare that they are non-residents, and if the vessel on which such employees are deployed, continues to work outside India, then the employee remains a non-resident. The salary

The Great Eastern Shipping Co. Ltd, Mumbai vs. The Deputy Commissioner of Income Tax, TDS Circle 2(3), Mumbai

In the result, all the eight appeals filed by the assessee

ITA 2772/MUM/2024[2013-14]Status: DisposedITAT Mumbai27 Nov 2024AY 2013-14

Bench: Shri Sandeep Gosain & Ms. Padmavathy S

Section 192(3)Section 201Section 220(2)Section 250

foreign waters, the Appellant was unable to determine at the start of the financial year as to which of the floating staff would be non-resident and which staff would become resident during the Financial Year on account of their stay in Indian waters or on Indian soil (on account ... they are non- residents, and if the vessel on which such employees are deployed, continues to work outside India, then the employee remains a non-resident. The salary earned outside Indian waters by a non-resident employee is not liable to tax in India as such salaries

The Great Eastern Shipping Co. Ltd, Mumbai vs. The Deputy Commissioner of Income Tax, TDS Circle 2(3), Mumbai

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

ITA 2771/MUM/2024[2012-13]Status: DisposedITAT Mumbai27 Nov 2024AY 2012-13

Bench: Shri Sandeep Gosain & Ms. Padmavathy S

Section 192(3)Section 201Section 220(2)Section 250

foreign waters, the Appellant was unable to determine at the start of the financial year as to which of the floating staff would be non-resident and which staff would become resident during the Financial Year on account of their stay in Indian waters or on Indian soil (on account ... they are non- residents, and if the vessel on which such employees are deployed, continues to work outside India, then the employee remains a non-resident. The salary earned outside Indian waters by a non-resident employee is not liable to tax in India as such salaries

DCIT Central Circle-19, New Delhi vs. Oneworld Corporation Pvt. Ltd., Delhi

ITA 8295/DEL/2019[2015-16]Status: DisposedITAT Delhi27 Nov 2024AY 2015-16

Bench: Sh. Satbeer Singh Godara & Sh. M. Balaganesh

For Appellant: Sh. Gaurav Jain, Adv. &For Respondent: Mr. Jaya Choudhary, CIT-DR
Section 153ASection 37(1)

being handled from UAE, as per section 6(3) of the I. T. Act, 1961, the status of the subsidiary will be that of non-resident and any income of it received/accrued/arisen outside India is not taxable in India. 4 CO No. 82/Del/2022 Oneworld Corporation Pvt. Ltd. It is observed

Schindler China Elevator Company Limited, China vs. The Assistant Commissioner of Income-Tax, Int Tax Circle 4(2)(1), Mumbai

In the result, the appeal filed by the assessee is partly allowed in above terms

ITA 4661/MUM/2023[2021-22]Status: DisposedITAT Mumbai26 Nov 2024AY 2021-22

Bench: Ms. Padmavathy S. & Shri. Raj Kumar Chauhanschindler China Elevator Vs. The Assistant Company Limited Commissioner Of Income C/O. Bansi S. Mehta & Co. Merchant Tax, Int Tax Circle 4(2)(1), Chamber, 3Rd Floor, 41, New Marine Mumbai Lines, Mumbai – 400020. Room No. 1708, 17Th Floor, Air Pan: Aascs8166L India Building, Nariman Point, Mumbai – 400021. (Appellant) (Respondent)

Section 142(1)Section 143(2)Section 144C(5)Section 2(31)Section 9(1)(i)

brief facts as culled out from the proceedings before the lower authorities are that the assessee is a non-resident company incorporated in China and is engaged in the business of supply of elevators and escalators, which includes design and manufacturing. The assessee is a part of Schindler Group

Dow Chemical International Private Limited, Thane vs. Deputy Commissioner of Income Tax - 14(1)(2), Mumbai

ITA 3772/MUM/2023[2016-17]Status: DisposedITAT Mumbai25 Nov 2024AY 2016-17

Bench: Shri Narendra Kumar Billaiyashri Sandeep Singh Karhail

For Appellant: Shri Rajan VoraFor Respondent: Ms. Rajeshwari Menon, Sr. AR /
Section 142(1)Section 143(2)Section 143(3)Section 250Section 32

IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, MUMBAI BEFORE SHRI NARENDRA KUMAR BILLAIYA, ACCOUNTANT MEMBER SHRI SANDEEP SINGH KARHAIL

Dow Chemicals International Private Limited, Mumbai vs. Deputy Commissioner of Income Ta-14(1)(2), Mumbai

ITA 1200/MUM/2023[2018-2019]Status: DisposedITAT Mumbai25 Nov 2024AY 2018-2019

Bench: Shri Narendra Kumar Billaiyashri Sandeep Singh Karhail

For Appellant: Shri Rajan VoraFor Respondent: Ms. Rajeshwari Menon, Sr. AR /
Section 142(1)Section 143(2)Section 143(3)Section 250Section 32

IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, MUMBAI BEFORE SHRI NARENDRA KUMAR BILLAIYA, ACCOUNTANT MEMBER SHRI SANDEEP SINGH KARHAIL