“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

Morgan Stanley Mauritius Company Limited, Mumbai vs. Deputy Commissioner of Income Tax (International Taxation)-Circle 3(2)(2), Mumbai

In the result, the appeal of the assessee is allowed

ITA 3316/MUM/2023[2020-21]Status: DisposedITAT Mumbai28 Oct 2024AY 2020-21

Bench: Shri Om Prakash Kant () & Ms. Kavitha Rajagopal () Assessment Year: 2020-21 Morgan Stanley Mauritius Company Dy. Cit (International Taxation) – Ltd., Circle 3(2)(2), Vs. C/O S R B C & Associates Llp, 14Th 16Th Floor, Room No. 1615, Air India Floor, The Ruby, 29, Senapati Bapat Building Nariman Point, Marg, Dadar (West), Mumbai-400021. Mumbai-400028. Pan No. Aadcm 5927 G Appellant Respondent

For Appellant: Mr. Sunil Moti LalaFor Respondent: Ms. Somogyan Pal, CIT-DR

Section 143(2)Section 143(3)Section 144C(13)Section 253

para-2 is also incorrect. The said circular reads as below: 2 is also incorrect. The said circular reads as below: Non-resident's Indian loss to be carried forward and not set off against resident's Indian loss to be carried forward and not set off against resident ... laid down in the Act. In the case of a non in the manner laid down in the Act. In the case of a non-resident, his resident, his foreign income is not included in his 'total income' which foreign income is not included in his 'total income' which foreign

Deutsche India Pvt. Ltd.(Earlier Known As 'Dboi Global Services Pvt. Ltd.), Mumbai vs. ACIT-1(3)(1), Mumbai

In the result, the appeal by the assessee is partly allowed for 16

ITA 2522/MUM/2022[2017-18]Status: DisposedITAT Mumbai28 Oct 2024AY 2017-18

Bench: Shri Amarjit Singh & Shri Sandeep Singh Karhail

For Appellant: Shri J.D. MistriFor Respondent: Ms. Neena Jeph (CIT-DR)

Section 143(3)Section 144C(13)Section 144C(5)Section 92CSection 92D

computing the transfer pricing adjustment on all the transactions of the Appellant instead of restricting it to the international transaction, i.e., transaction with non-resident associated enterprises. i. Without prejudice, on the facts and in the circumstances of the case

M/S. Tirubala International Private Limited, Kanpur vs. Deputy Commissioner of Income Tax, Range-VI, Kanpur

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

ITA 147/LKW/2018[2014-15]Status: DisposedITAT Lucknow25 Oct 2024AY 2014-15

Bench: Sh. Sudhanshu Srivastava & Sh. Nikhil Choudharya.Y. 2014-15 Tirubala International Pvt. Ltd., Deputy Commissioner Of C-7, Panki Industrial Area, Vs. Income Tax, Range-Vi, Kanpur Kanpur, U.P. Pan:Aaect2086J (Appellant) (Respondent) Assessee By: Sh. Vikas Garg, Fca Revenue By: Sh. Sanjeev Krishna Sharma, Addl Cit Dr Date Of Hearing: 02.09.2024 Date Of Pronouncement: 25.10.2024 O R D E R Per Sh. Nikhil Choudhary: This Is An Appeal Filed Against The Order Of The Ld. Cit(A), Dismissing The Appeal Of The Assessee That Was Filed Against The Order Of The Dcit-6, Kanpur Passed On 19.12.2016. The Grounds Of Appeal Are As Under:- “1. That The Ao, Has Erred In Law & On Facts In Making An Addition Of Rs. 29,164/- On Account Of Late Payment Towards Employees Contribution To Esi. 2. That The Authorities Below Have Failed To Appreciate That The Payment Of Rs.29,164 Towards Employee'S Contribution To Provident Fund Was Made Before The "Due Date" Of Filing Return Of Income U/S 139(1) Of The Income Tax Act 1961 Therefore There Could Not Be Any Addition Of The Aforesaid Amount To The Returned Income. 3. That The Authorities Below Have Failed To Appreciate That The Due Date As Mentioned In 36(1) (Va) Is To Be Read In Conjunction With Section 43B(B)

For Appellant: Sh. Vikas Garg, FCAFor Respondent: Sh. Sanjeev Krishna Sharma, Addl CIT DR

Section 139(1)Section 195Section 36(1)(va)Section 40Section 43B

pointed out that as per the explanation to section 9 of the Act, whether the income of the non-resident was taxable in India or not, the assessee was required to deduct TDS on that payment, in the light of the provisions of section 195 of the Act. Therefore, invoking

Sushmasri Boppana, Hyderabad vs. ACIT, Central Circle-3(1), Hyderabad

In the result, appeal filed by the assessee for the A

ITA 58/HYD/2023[2016-17]Status: DisposedITAT Hyderabad25 Oct 2024AY 2016-17

Bench: Shri Mahavir Singh, Hon'Ble Vice- & Shri Manjunatha, G. Accountant Hon'Bleआ.अपी.सं /Ita No.57 & 58/Hyd/2023 (िनधा"रण वष"/Assessment Years: 2015-16 & 2016-17) Smt. Sushmasri Boppana Vs. Asstt. Commissioner Of Hyderabad Income Tax, Pan:Akvpb6106D Central Circle 3(1) Hyderabad (Appellant) (Respondent) िनधा""रती "ारा/Assessee By: Shri A.V. Raghuram, Advocate राज" व "ारा/Revenue By:: Shri B. Balakrishna, Dr सुनवाई की तारीख/Date Of Hearing: 23/09/2024 घोषणा की तारीख/Pronouncement: 25/10/2024 आदेश/Order

For Appellant: Shri A.V. Raghuram, AdvocateFor Respondent: : Shri B. Balakrishna, DR

Section 131Section 132Section 153A

vendors and their respective shares in the property, it can be easily concluded that, the appellant has paid consideration through cheques to the Non-Resident Seller, whereas paid additional consideration in cash to resident seller for his convenience. Therefore, held that there is no error in the reason given

Sushmasri Boppana, Hyderabad vs. ACIT, Central Circle-3(1), Hyderabad

In the result, appeal filed by the assessee for the A

ITA 57/HYD/2023[2015-16]Status: DisposedITAT Hyderabad25 Oct 2024AY 2015-16

For Appellant: Shri A.V. Raghuram, AdvocateFor Respondent: : Shri B. Balakrishna, DR

Section 131Section 132Section 153A

Chambal Fertilisers and Chemicals Limited, Kota Gadepan vs. Principal Commissioner of Income Tax, Savina-Udaipur

ITA 694/JPR/2024[2018-19]Status: DisposedITAT Jaipur25 Oct 2024AY 2018-19

For Appellant: Shri Sanjay Jhanwar, Adv. & Shri Mukesh SoniFor Respondent: Shri Arvind Kumar, CIT

Section 115BSection 142(1)Section 143(2)Section 143(3)Section 194ASection 195Section 263Section 90

debited interest of Rs.8719.49 lakh and Sr. No. 43(i) of ITR-6 i.e." interest paid outside India or paid in India to a non-resident other than a company or a foreign company amounting to Rs.25,56,23,509/-. Whereas, as per 3CD report and 27Q of TDS quarterly ... issue i.e. The issue of Non-Deduction of TDS on Interest paid outside India or paid in India to a non-resident other than a company or a foreign company (Rs.23,09,26,264/-) and The issue of Dividend (as per section 115BBD) vs. Business Income

Enkay India Rubber Co Pvt Ltd, Delhi vs. ACIT, Circle 8(2), New Delhi

Appeal of the assessee is allowed

ITA 1268/DEL/2023[2017-18]Status: DisposedITAT Delhi25 Oct 2024AY 2017-18

Bench: Shri Vikas Awasthy & Shri Avdhesh Kumar Mishraआअसं.1268/िद"ी/2023 (िन.व. 2017-18) Enkay India Rubber Co. Pvt. Ltd, B-3, Sma Industrial Estate, Delhi 110033 ...... अपीलाथ"/Appellant Pan: Aaace-0097-Q बनाम Vs. Assistant Commissioner Of Income Tax, ..... "ितवादी/Respondent Circle-8(2), Delhi

For Appellant: Shri M.K Madan, Chartered AccountantFor Respondent: Shri K.K Mishra, Sr. DR

Section 195Section 40

authorities below. The short question before us for consideration is: Whether the assessee was liable to deduct tax at source on payments made to non-resident attorneys where such payments are in the nature of official fees, reimbursement of renewal fees and professional fees? 7. The department has not disputed ... fact that the overseas payments made by the assessee are towards reimbursement of expenses incurred by the non-resident attorneys towards renewal of registration of patents abroad and payments to registration authorities. Further, the Revenue has not controverted the fact that professional fee paid to the foreign attorneys

As Raja Sons Enterprises Pvt Ltd, Visakhapatnam vs. Assistant Commissioner of Income Tax, Circle-1(1), Visakhapatnam

In the result, appeal of the assessee is allowed

ITA 379/VIZ/2024[2018-19]Status: DisposedITAT Visakhapatnam24 Oct 2024AY 2018-19

Bench: Shri Duvvuru Rl Reddy, Hon’Ble & Shri S Balakrishnan, Hon’Bleआयकर अपीलसं./I.T.A.No.379/Viz/2024 (निर्धारण वर्ा/ Assessment Year: 2018-19) A.S. Raja Sons Enterprises (P.) Ltd., V. Asst. Cit – Circle – 1(1) Income Tax Office D.No. 10-5-11/5 Pratyakshakar Bhavan Care Hospital, Waltair Main Road Mvp Double Road Visakhapatnam – 530002 Visakhapatnam - 530017 Andhra Pradesh Andhra Pradesh [Pan: Aabca4796M] (अपीलार्थी/ Appellant) (प्रत्यर्थी/ Respondent)

Section 143(2)Section 143(3)Section 23(1)Section 24

आयकर अपीलीय अधिकरण, धिशाखापटणम पीठ, धिशाखापटणम IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM श्री दुव्वूरु आरएल रेड्डी, न्याधयक

Orient Overseas Container Line Limited, Mumbai vs. Deputy Commissioner of Income Tax (International Taxation)-Circle 3(2)(2), Mumbai

In the result, ground No.3 is allowed

ITA 3278/MUM/2023[2020-21]Status: DisposedITAT Mumbai24 Oct 2024AY 2020-21

Bench: Us The Effective Ground Which Has Been Raised Is Ground No.3, Wherein Assessee Has Challenged That Gst Amount Cannot Be Considered For The Purpose Of Computing Presumptive Income U/S.44B Of The Act. For The Sake Of Ready Reference, The

Section 143(3)Section 44B

provisions of section 44B of the Act are ‘special provision for computing profits and gains of shipping business in the case of non-residents". Therefore, the provisions of section 44B of the Act would prevail over general provisions meant for computation of profits and gains of business or profession under ... computing the deemed profit u/s 44B. Section 44B is a special provision for computing profits and gains of shipping business in the case of non-residents. Prior to insertion of Section 44B, taxable profits of foreign shipping enterprises were determined by suitably apportioning their global profits between their Indian business

Kiri Industries Ltd., Ahmedabad vs. The Pr. CIT, Ahmedabad-1, Ahmedabad

In the result, appeal of the assessee is allowed

ITA 422/AHD/2024[2018-19]Status: DisposedITAT Ahmedabad23 Oct 2024AY 2018-19

Bench: Smt. Annapurna Gupta & Shri Siddhartha Nautiyal

For Appellant: Shri Tushar Hemani, Sr. Adv. & ShriFor Respondent: Shri A.P. Singh, CIT DR

Section 143(3)Section 144BSection 14ASection 201Section 263Section 36(1)(iii)Section 36(1)(va)Section 37Section 37(1)

Provident Fund amounting to Rs. 88,94,666/- under Section 36(1)(va), a disallowance of Rs. 57,74,100/- concerning commission paid to non-residents and a sum of Rs. 35,18,785/- under Section 36(1)(iii) of the Act. 4. Subsequently, upon reviewing the records, Principal

DCIT., (Internation Taxation)-2, Hyderabad vs. Virtusa International B V, Netherland

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

ITA 727/HYD/2024[2023-24]Status: DisposedITAT Hyderabad23 Oct 2024AY 2023-24

Bench: Shri Prakash Chand Yadav & Shri Madhusudan Sawdia

For Appellant: Nidhi, AdvocateFor Respondent: : Shri Kumar Pranav, CIT-DR

Section 143(1)Section 234BSection 234C

failure of the payer to deduct the tax at specified rate and the difference tax is paid by the non-resident at the time of filing of return, the liability to pay advance tax does not arise and therefore the assessee is not liable to pay any interest u/s.234B & 234C ... revenue. The head note of the decision is extracted hereunder : “Section 234B of the Income-tax Act, 1961 - Interest, chargeable as (Non-resident) - Assessment year 2013-14 - Assessee-company based in China was engaged in supply of telecom equipments and had a permanent establishment in India - Assessing Officer computed taxable

Deputy Commissioner of Income-Tax, Corporate Circle 1(1), Chennai vs. Doosan Power Systems India Private Limited, Chennai

In the result, appeal filed by the revenue is dismissed

ITA 1149/CHNY/2023[2015-16]Status: DisposedITAT Chennai23 Oct 2024AY 2015-16

Bench: Shri Mahavir Singh, Hon’Ble & Shri S. R. Raghunatha, Hon’Bleआयकरअपीलसं./Ita No.: 1149/Chny/2023 िनधा"रणवष" / Assessment Year: 2015-16 Deputy Commissioner Of Doosan Power Systems India Income Tax, V. Private Limited, Corporate Circle -1(1), 18/2A, Sennerkuppam, Bye Chennai. Pass Road, Poonamallee, Chennai – 600 056. [Pan:Aabcb-5946-J] (अपीलाथ"/Appellant) (""यथ"/Respondent) अपीलाथ"क"ओरसे/Appellant By : Shri. Clement Ramesh Kumar, Cit ""यथ"क"ओरसे/Respondent By : Shri. Sandeep Bagmar, Ca सुनवाई क" तारीख/Date Of Hearing : 20.08.2024 घोषणा क" तारीख/Date Of Pronouncement : 23.10.2024 आदेश /O R D E R

For Appellant: Shri. Clement Ramesh Kumar, CITFor Respondent: Shri. Sandeep Bagmar, CA

Section 144BSection 147Section 195Section 40Section 9(1)(vi)

1149/Chny/2023 8.2 The Ld.AR relied on the following judicial pronouncements have held that payment of ocean freight to a non-resident company does not tantamount to royalty.Hon’ble Supreme Court in the case of DIT vs. A.P. Moller Maersk AS, Civil Appeal No.8040 of 2015, wherein the Hon’ble Supreme ... other State but only so much of them as is attributable to that permanent establishment.” 9.2 As stated above, given that HSC (non-resident logistics company) does not have any place of business/office in India through which business activities of the Company are carried on and thereby, the profits arising

Lalita Trehan, New Delhi vs. DCIT, Circle Int. Tax 3(1)(1), New Delhi

ITA 3352/DEL/2023[2021-22]Status: DisposedITAT Delhi23 Oct 2024AY 2021-22

Bench: Shri Saktijit Dey & Shri Brajesh Kumar Singh[Assessment Year: 2021-22]

Section 143(3)Section 50CSection 54E

unjust, illegal, arbitrary and against the facts and circumstances of the case.” 3. Brief facts of the case: The assessee is a non-resident residing in Texas, USA. During the year, the assessee was the owner of the property being institutional (School) building and land measuring 1.55 Acres (covered area

Saket Kanoi, Gurgaon vs. DCIT Intl. Taxation, Gurgaon

In the result, the appeal of the assessee is allowed

ITA 3243/DEL/2023[2021-22]Status: DisposedITAT Delhi23 Oct 2024AY 2021-22

Bench: Dr. B. R. R. Kumar, Sh. Yogesh Kumar Us

For Appellant: Sh. Sunny Jain, CAFor Respondent: Sh. Vizay B. Vasanta, CIT-DR

Section 143(3)

quoted with approval by the Hon ' ble Supreme Court in Azadi Bachao Andolan ' s case (supra), Federal Court of Canada was observed that ' the non-resident can benefit from the exemption (under the treaty) regardless of whether or not he is taxable on that capital gain in his own country ... quoted with approval by the Hon’ble Supreme Court in Azadi Bachao Andolan’s case (supra), Federal Court of Canada was observed that “the non-resident can benefit from the exemption (under the treaty) regardless of whether or not he is taxable on that capital gain in his own country

Muthukrishnan Kumaresan, Chennai vs. ITO, Interational Taxation Ward-1(2), Chennai

The appeal stand allowed for statistical purposes

ITA 2100/CHNY/2024[2020-21]Status: DisposedITAT Chennai22 Oct 2024AY 2020-21

For Appellant: Ms. R. Sumedha (Advocate) for Ms. GFor Respondent: Shri Ashwin D Gowda (Addl.CIT)-Ld. Sr. DR

Section 143(3)Section 68

which has been sought by Ld. AR on the strength of affidavit of the assessee. It has been stated that the assessee being non-resident was fully dependent on its Chartered Accountant who delayed to inform about the impugned order to the assessee. Considering the period of delay and contents

Samsung R & D Institute India Bangalore Private Limited, Bangalore vs. Joint Commissioner of Income Tax, Special Range- 6, Bangalore

In the result, the appeal of the assessee is allowed and the appeal of the Revenue is dismissed

ITA 625/BANG/2020[2015-16]Status: DisposedITAT Bangalore22 Oct 2024AY 2015-16

Bench: Shri George George K. & Ms. Padmavathy S.It(Tp)A No. 625/Bang/2020 (Assessment Year: 2015-16)

For Appellant: Shri T. Suryanarayana, Sr. AdvFor Respondent: Shri R.N. Siddappaji, CIT-DR

Section 28Section 40Section 92C

public before 1/4/1938), royalty fee for technical services or sum chargeable under this Act which is payable outside India or inside India to a non-resident not being a company or to a foreign company on which tax is deductible at source and such tax has not been deducted

ACIT-23(1), Mumbai, Piramal Chamber vs. Parishi Diamonds, Mumbai

In the result, the appeal of the Revenue is dismissed

ITA 1916/MUM/2024[2012]Status: DisposedITAT Mumbai22 Oct 2024

Bench: Shri Om Prakash Kant () & Shri Raj Kumar Chauhan () Assessment Year: 2012-13 Acit-23(1), Parishi Diamonds, 511, 5Th Floor, Piramal Chamber, Cc2091 To Cc 2093 Tower Central Vs. Lalbaug, Parel, Wings Bharat Diamond Bourse Bandra Mumbai-400012. Kurla Complex, Bandra East, Mumbai-400051. Pan No. Aajfp 2118 B Appellant Respondent

For Appellant: Mr. Rajesh SanghaviFor Respondent: 20/08/2024

Section 271GSection 92Section 92CSection 92D

means 'a transaction between enterprises other than associated associated associated enterprises, enterprises, enterprises, whether whether whether resident resident resident or or or non non non-resident. Accordingly, an uncontrolled transaction is a transaction entered into Accordingly, an uncontrolled transaction is a transaction entered into Accordingly, an uncontrolled transaction

Prasidh Fincap Ltd., New Delhi vs. DCIT Circle-20(1), New Delhi

In the result, all the appeals of the assessee are allowed

ITA 1534/DEL/2022[2014-15]Status: DisposedITAT Delhi22 Oct 2024AY 2014-15

Bench: Shri M. Balaganesh & Shri Vimal Kumarprasidh Fincap Ltd, Vs. Dcit, 2Nd Floor, Rsn Arcade, 6 Circle-20(1), Lsc, Near Peince New Delhi Apartment, Ip Extension, Parparganj, New Delhi (Appellant) (Respondent) Pan:Aaacp6704D

For Appellant: Shri I. P. Bansal, AdvFor Respondent: Shri Rajesh Dhanesta, Sr. DR

Section 143(3)Section 32

States including Madhya Bharat of which Indore became a part, the assessee was assessed at Bombay under the Income-tax Act, 1922 as a non-resident and for some years as resident. The assessee was also assessed in Indore under the Indore Industrial Tax Rules, 1927. For those years ... which it was assessed as a non-resident under Income- tax Act, 1922, only that part of its profits attributable to the sale proceeds of goods received in British India were brought to tax. For the assessment years in question, in ascertaining the "written down value" of the building, machinery

Vodafone Group Services Ltd., New Delhi vs. DCIT, Intl. Taxation, Circle- 3(1)(1), New Delhi

In the result, the appeal is partly allowed for statistical purposes

ITA 6094/DEL/2019[2016-17]Status: DisposedITAT Delhi22 Oct 2024AY 2016-17

Bench: Before Shri Saktijit Dey, Before Before Shri Saktijit Dey, Shri Saktijit Dey, Vice Shri Saktijit Dey, Vice & And & Shri S. Rifaur Rahman Shri S. Rifaur Rahman, , , , Accountant Shri S. Rifaur Rahman Shri S. Rifaur Rahman Accountantmember Member

India. Before we delve into this issue, it is necessary to briefly discuss the relevant facts. As stated, the assessee is a non-resident corporate entity incorporated in United Kingdom (UK) and a tax resident of that country. It has further been stated by the departmental authorities that the assessee

Vodafone Group Services Ltd., New Delhi vs. DCIT, Circle- 3(1)(1), International Taxation, New Delhi

In the result, the appeal is partly allowed for statistical purposes

ITA 304/DEL/2019[2015-16]Status: DisposedITAT Delhi22 Oct 2024AY 2015-16