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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

Yogesh Patel, Usa vs. DCIT Circle Int Taxation 2(2)(2), New Delhi

In the result, the appeal filed by the assessee is allowed for statistical purposes with consequences to follow as directed above

ITA 2065/DEL/2023[2020-21]Status: DisposedITAT Delhi05 Jul 2024AY 2020-21

Bench: Shri G.S. Pannu, Hon’Ble & Shri Anubhav Sharmaassessment Year: 2020-21 Yogesh Patel, Vs Dcit, 37319, Fowler Street New Ark Circle Int. Taxation 2(2)(2), California, New Delhi. Usa 94560. Pan: Arppp4747H (Appellant) (Respondent) Assessee By : Shri Bhupendra Shah, Ca Revenue By : Shri Vizay B. Vasanta, Cit-Dr Date Of Hearing : 23.04.2024 Date Of Pronouncement : 05.07.2024 Order Per Anubhav Sharma, Jm: This Appeal Is Preferred By The Assessee Against The Final Assessment Order Dated 23.06.2023 Passed U/S 143(3) R.W.S. 144C(13) Of The Income Tax Act, 1961 (Hereinafter Referred As ‘The Act’), By The Dcit, Circle International Taxation 2(2)(2), New Delhi (Hereinafter Referred To As The Ld. Ao), For Assessment Year 2020-21. 2. The Applicant Is Non-Resident Indian Settled In Usa & Is Us Tax Resident. During The Previous Year Relevant To The Assessment Year Under Reference, The Applicant Sold Ancestral Land Bearing S No14 Hissa, No 7 Pt, Village Goregaon, Tal Borivli, Mumbai Suburban Dist On December 11, 2019 & Disclosed Long Term Capital Gains Computed As Under:- Amt In Rs Sale Consideration - 18,56,87,500 Less: Deduction U/S 48 - 13,56,87,500 Net Sale Consideration (I) 5,00,00,000 Acquisition Cost Fair Market Value On 01-04-2001 Rs 10,400/- X 3647.80 Sq M 3,79,37,120 Less: 60% Reduction In Fmv Due To Encroachment 2,27,62,272 1,51,74,848 Indexed Cost 1,51,74,848 X [289/100] 4,38,55,311 Cost Of Acquisition (Ii) 4,38,55,311 Long Term Capital Gains: (I) - (Ii) 61,44,689

For Appellant: Shri Bhupendra Shah, CAFor Respondent: Shri Vizay B. Vasanta, CIT-DR
Section 143(3)Section 48

Circle International Taxation 2(2)(2), New Delhi (hereinafter referred to as the Ld. AO), for assessment year 2020-21. 2. The Applicant is non-resident Indian settled in USA and is US tax resident. During the previous year relevant to the assessment year under reference, the Applicant sold ancestral