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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

The Hongkong and Shanghai Banking Corporation Ltd, Mumbai vs. Addl DIT (It) -3, Mumbai

In the result, the captioned appeals by the assessee are partly allowed and that of the revenue are partly allowed

ITA 7010/MUM/2016[2008-09]Status: DisposedITAT Mumbai28 Jun 2024AY 2008-09

Bench: Shri Narendra Kumar Billaiya, Hon'Ble & Shri Raj Kumar Chauhan, Hon'Ble

Hongkong & Shanghai Banking Corporation Ltd., 24. The first grievance relates to the expenses incurred for mobilization of deposits from Non-resident Indian. The Ld. CIT(A) has considered the grievance of the assessee at Para No. 5.1 of his order and at Para No. 5.5 he observed that this issue ... deemed to have accrued in India only if payment is made for the debt that has been incurred in India by a non-resident which will not be the case here since the issuing bank which provides debt is outside India being a foreign branch

DCIT (It) 2(2)(2), Mumbai vs. The Hongkong and Shanghai Banking Corp Ltd, Mumbai

In the result, the captioned appeals by the assessee are partly allowed and that of the revenue are partly allowed

ITA 4788/MUM/2016[2007-08]Status: DisposedITAT Mumbai28 Jun 2024AY 2007-08

Bench: Shri Narendra Kumar Billaiya, Hon'Ble & Shri Raj Kumar Chauhan, Hon'Ble

Hongkong & Shanghai Banking Corporation Ltd., 24. The first grievance relates to the expenses incurred for mobilization of deposits from Non-resident Indian. The Ld. CIT(A) has considered the grievance of the assessee at Para No. 5.1 of his order and at Para No. 5.5 he observed that this issue ... deemed to have accrued in India only if payment is made for the debt that has been incurred in India by a non-resident which will not be the case here since the issuing bank which provides debt is outside India being a foreign branch

DCIT (It) 2(2)(2), Mumbai vs. The Hongkong and Shanghai Banking Corp Ltd, Mumbai

In the result, the captioned appeals by the assessee are partly

ITA 4787/MUM/2016[2006-07]Status: DisposedITAT Mumbai28 Jun 2024AY 2006-07

Bench: Shri Narendra Kumar Billaiya, Hon'Ble

Hongkong & Shanghai Banking Corporation Ltd., 24. The first grievance relates to the expenses incurred for mobilization of deposits from Non-resident Indian. The Ld. CIT(A) has considered the grievance of the assessee at Para No. 5.1 of his order and at Para No. 5.5 he observed that this issue ... deemed to have accrued in India only if payment is made for the debt that has been incurred in India by a non-resident which will not be the case here since the issuing bank which provides debt is outside India being a foreign branch

The Hong Kong & Shanghai Banking Corporation Ltd., Mumbai vs. Addl. Director of Income Tax (International Taxation) - Range -3, Mumbai

In the result, the captioned appeals by the assessee are partly

ITA 4767/MUM/2016[2007-08]Status: DisposedITAT Mumbai28 Jun 2024AY 2007-08

Bench: Shri Narendra Kumar Billaiya, Hon'Ble

Hongkong & Shanghai Banking Corporation Ltd., 24. The first grievance relates to the expenses incurred for mobilization of deposits from Non-resident Indian. The Ld. CIT(A) has considered the grievance of the assessee at Para No. 5.1 of his order and at Para No. 5.5 he observed that this issue ... deemed to have accrued in India only if payment is made for the debt that has been incurred in India by a non-resident which will not be the case here since the issuing bank which provides debt is outside India being a foreign branch

The Hong Kong & Shanghai Banking Corporation Ltd., Mumbai vs. Addl. Director of Income Tax (International Taxation) - Range -3, Mumbai

In the result, the captioned appeals by the assessee are partly

ITA 4766/MUM/2016[2006-07]Status: DisposedITAT Mumbai28 Jun 2024AY 2006-07

Bench: Shri Narendra Kumar Billaiya, Hon'Ble

Hongkong & Shanghai Banking Corporation Ltd., 24. The first grievance relates to the expenses incurred for mobilization of deposits from Non-resident Indian. The Ld. CIT(A) has considered the grievance of the assessee at Para No. 5.1 of his order and at Para No. 5.5 he observed that this issue ... deemed to have accrued in India only if payment is made for the debt that has been incurred in India by a non-resident which will not be the case here since the issuing bank which provides debt is outside India being a foreign branch

Amit Laroya, New Delhi vs. ACIT, Circle International Taxation 2(2)(1), New Delhi

The appeal of the assessee is hereby allowed

ITA 1667/DEL/2022[2019-20]Status: DisposedITAT Delhi28 Jun 2024AY 2019-20

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

For Appellant: Sh. Vishal Kalra, Adv. &For Respondent: Sh. Vizay B. Vasanta, CIT-DR
Section 143(3)Section 144CSection 144C(5)Section 234BSection 234DSection 270A

That on the facts and circumstances of the case and in law, the AO/DRP have erred in not appreciating that the Appellant was a non-resident of India during the subject assessment year and salary being accrued outside India is not taxable in India as per the provisions ... deducted on receipt of Rs.5,40,07,330/- . It is not in dispute that assessee during the year under consideration was a non-resident. The assessee as a matter of abundant caution and on a conservative basis had offered a sum of Rs.29,86,022/-being the salary proportionate

Ahlers India Private Limited, Chennai vs. DCIT, Corp Circle 1(1), Chennai

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

ITA 524/CHNY/2024[2011-12]Status: DisposedITAT Chennai27 Jun 2024AY 2011-12

Bench: Shri Mahavir Singhand Shri Manoj Kumar Aggarwalआयकर अपील सं./Ita No.: 524/Chny/2024 िनधा"रण वष"/Assessment Year: 2011-12 Ahlers India Pvt. Ltd., The Deputy Commissioner No.39, 2Nd Floor, Vs. Of Income Tax,, The Trapezium, Corporate Circle 1(1), Nelson Manickam Road, Chennai. Aminjikarai, Chennai – 600 029. Pan: Aaeca 5688H (अपीलाथ"/Appellant) (""यथ"/Respondent) अपीलाथ" क" ओर से/Appellant By : Shri Vikram Vijayaraghavan, Advocate ""यथ" क" ओर से/Respondent By : Shri Ar.V. Sreenivasan, Addl.Cit सुनवाई क" तारीख/Date Of Hearing : 27.06.2024 घोषणा क" तारीख/Date Of Pronouncement : 27.06.2024 आदेश /O R D E R Per Mahavir Singh: This Appeal By The Assessee Is Arising Out Of The Order Of The Commissioner Of Income Tax (Appeals), National Faceless Appeal Centre (Nfac), Delhi In Order No.Itba/Nfac/S/250/2023- 24/1059291012 (1) Dated 02.01.2024. The Assessment Was Framed By The Deputy Commissioner Of Income Tax, Company Circle 1(1), Chennai For The Assessment Year 2010-11 U/S.143(3) R.W.S. 144C Of The Income Tax Act, 1961 (Hereinafter The ‘Act’) Vide Order Dated 16.02.2016. The Impugned Giving Effect To The Order Of The Tribunal Was Framed By The Dcit, Corporate Circle 1(1), Chennai Vide Order Dated 22.08.2017. 2. The Only Issue In This Appeal Of Assessee Is Against The Order Of Cit(A)-Nfac Confirming The Action Of The Ao In Disallowing Expenses Paid To Various Non-Resident Parties For Non-Deduction Of Tds By Invoking The Provisions Of Section 40(A)(I) Of The Act Amounting To Rs.2,26,73,426/-. This Is The Only Limited Issue On Merits But Assessee Has Raised Various Other Issues Of Proper Opportunity Etc., Which Will Be Dealt With Later.

For Appellant: Shri Vikram Vijayaraghavan, AdvocateFor Respondent: Shri AR.V. Sreenivasan, Addl.CIT
Section 143(3)Section 201(1)Section 40

this appeal of assessee is against the order of CIT(A)-NFAC confirming the action of the AO in disallowing expenses paid to various non-resident parties for non-deduction of TDS by invoking the provisions of section 40(a)(i) of the Act amounting to Rs.2 ... dispute presently left with us for adjudication) by invoking the provisions of section 40(a)(i) of the Act being payments made to non-resident claimed by assessee as expenses without deduction of TDS. The assessee challenged the draft assessment order before DRP and DRP vide directions dated 29.12.2015 directed

Cresta Fund Limited, Mauritius vs. DCIT, Circle-1(2)(1), Int. Taxation, New Delhi

In the result, both the appeals are partly allowed for

ITA 752/DEL/2023[2016-17]Status: DisposedITAT Delhi27 Jun 2024AY 2016-17

Bench: Shri Saktijit Dey, Vice- & Shri M. Balaganesh

Section 147Section 148

claim of set off of long term capital loss arising out of sale of shares. 6. Briefly the facts are, the assessee is a non-resident corporate entity incorporated in Mauritius and is a tax resident of Mauritius. As accepted by the departmental authorities, the assessee holds a valid

Cresta Fund Limited, Mauritius vs. DCIT, Circle-1(2)(1), Int. Taxaion, New Delhi

In the result, both the appeals are partly allowed for

ITA 751/DEL/2023[2015-16]Status: DisposedITAT Delhi27 Jun 2024AY 2015-16

Bench: Shri Saktijit Dey, Vice- & Shri M. Balaganesh

Section 147Section 148

claim of set off of long term capital loss arising out of sale of shares. 6. Briefly the facts are, the assessee is a non-resident corporate entity incorporated in Mauritius and is a tax resident of Mauritius. As accepted by the departmental authorities, the assessee holds a valid

Swami Rameshwar Anandagiri Purna, New Delhi vs. DCIT, Circle-2(1) Int Taxation, Gurugram

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

ITA 395/DEL/2023[2016-17]Status: DisposedITAT Delhi27 Jun 2024AY 2016-17

Bench: Dr. B. R. R. Kumar, Sh. Anubhav Sharma

For Appellant: Dr. Rakesh Gupta, Adv. &For Respondent: Sh. Vizay B. Vasanta, CIT-DR
Section 143(3)Section 147Section 148Section 151Section 5(2)Section 69

appreciating that the provisions of Section 69 is not applicable in the facts of the appellant. 3.2 without appreciating that receipt of loan by non-resident appellant is neither income received or is deemed to be received in India nor income accrues or arises or is deemed to accrue ... loan received of Rs. 7,18,54,167/- from foreign foundations. 4. The assessee was born in India and is a German Citizen and non-resident taxpayer in India. The assessee filed its return of income declaring income of Rs 2,28,210/- on 27.11.2017. Notice

Jiangsu Zhongtian Technology Co Ltd, Gurgaon vs. ACIT Circle Int Tax 2(1)(2), New Delhi

In the result, the appeal of the assessee is allowed and the Stay Application of the assessee is dismissed

ITA 350/DEL/2023[2020-21]Status: DisposedITAT Delhi27 Jun 2024AY 2020-21

Bench: Dr. B. R. R. Kumar, Sh. Anubhav Sharma

For Appellant: Sh. Kamal Sawhney, Adv. &For Respondent: Sh. Vizay B. Vasanta, CIT-DR
Section 143(3)Section 234A

existence or otherwise of permanent establishment (PE) and attribution of profits to the PE. 3. Briefly, the facts are, the assessee is a non-resident corporate entity incorporated in China and a tax resident of China. The assessee had entered into three contracts with Power Grid Corporation of India

Finastra International Financial Systems Pte Limited, Singapore vs. Assistant Commissioner of Income Tax (International Tax) Circle 1(3)(1), Delhi

In the result, the appeal is allowed

ITA 3019/DEL/2023[2021-22]Status: DisposedITAT Delhi27 Jun 2024AY 2021-22

Bench: SHRI G.S. PANNU, HON'BLE (Vice President), SHRI ANUBHAV SHARMA (Judicial Member)

For Appellant: Ms Tanmayee, AdvocateFor Respondent: Shri Vizay B. Vasanta, CIT-DR
Section 143(3)

exclusive, nontransferable license to merely enable the use of the product. The assessee has reiterated that the assessee is purchasing the software from its non-resident supplier/owner and selling/ distributing to Indian end users either for their own business or for onward selling and in the entire chain of event

Fortum Sar B.V., Netherlands vs. DCIT, Circle-1(3)(1) Int. Taxation, Delhi

In the result, appeal is allowed as indicated above

ITA 2028/DEL/2023[2022-23]Status: DisposedITAT Delhi27 Jun 2024AY 2022-23

Bench: Shri Saktijit Dey & Shri M. Balaganeshassessment Year: 2022-23

Section 139(1)Section 143(1)Section 143(1)(a)Section 154Section 250

First Appellate Authority to remand the matter back to the Assessing Officer (“AO”). 3. Briefly, the facts are, the assessee, as stated, is a non-resident company, incorporated in Netherlands. The assessee is an investment holding company. The assessee had a wholly owned subsidiary in India, namely, Sprng Solar India

Denso International Asia Co., Ltd., Thailand vs. ACIT, Circle International Tax 1(2)(2), New Delhi

The appeal is allowed and the impugned addition quashed

ITA 1985/DEL/2023[2020-21]Status: DisposedITAT Delhi27 Jun 2024AY 2020-21

Bench: SHRI G.S. PANNU, HON'BLE (Vice President), SHRI ANUBHAV SHARMA (Judicial Member)

For Appellant: Shri Vishal Kalra, Advocate; and Ms Sumisha Murgai &For Respondent: Shri Vijay B. Vasanta, CIT-DR
Section 143(3)Section 144C(13)Section 253(1)Section 5(2)Section 9(1)(vii)

enterprise. 14. We will like to initiate the discussion keeping in mind the settled proposition of law, that where the business profits of the non-resident include items of income for which specific or separate provisions have been made in other articles of the tax treaty, then those provisions would

Andritz Ag, New Delhi vs. DCIT, Circle- 1(1)(1), International Taxation, New Delhi

In the result, appeal is dismissed

ITA 7850/DEL/2017[2014-15]Status: DisposedITAT Delhi27 Jun 2024AY 2014-15

Bench: Shri Saktijit Dey, Vice- & Shri M. Balaganeshassessment Year: 2011-12 With Assessment Year: 2012-13 With Assessment Year: 2014-15

Section 9(1)(vii)

Double Taxation Avoidance Agreement (DTAA). 2 | P a g e ITA No.5991/Del/2015; 288/Del/2017; 7850/Del/2017 & 2622/Del/2017 4. Briefly the facts are, the assessee is a non-resident corporate entity and a tax resident of Austria on the strength of Tax Residency Certification (TRC) issued in its favour. As stated ... engineering cannot be made taxable. 12. Pertinently, identical nature of dispute arose in case of SMS Concast AG Vs. DDIT (supra), wherein, the non-resident entity had entered into a separate contract with JSW Steel Ltd. and an Indian entity for offshore supply of plant and equipment, offshore supply

Andritz Ag, New Delhi vs. DDIT (International Taxation), New Delhi

In the result, appeal is dismissed

ITA 288/DEL/2017[2012-13]Status: DisposedITAT Delhi27 Jun 2024AY 2012-13

Bench: Shri Saktijit Dey, Vice- & Shri M. Balaganeshassessment Year: 2011-12 With Assessment Year: 2012-13 With Assessment Year: 2014-15

Section 9(1)(vii)

Double Taxation Avoidance Agreement (DTAA). 2 | P a g e ITA No.5991/Del/2015; 288/Del/2017; 7850/Del/2017 & 2622/Del/2017 4. Briefly the facts are, the assessee is a non-resident corporate entity and a tax resident of Austria on the strength of Tax Residency Certification (TRC) issued in its favour. As stated ... engineering cannot be made taxable. 12. Pertinently, identical nature of dispute arose in case of SMS Concast AG Vs. DDIT (supra), wherein, the non-resident entity had entered into a separate contract with JSW Steel Ltd. and an Indian entity for offshore supply of plant and equipment, offshore supply

DCIT (International Taxation), New Delhi vs. M/S. Andritz Ag, New Delhi

In the result, appeal is dismissed

ITA 2622/DEL/2017[2012-13]Status: DisposedITAT Delhi27 Jun 2024AY 2012-13

Bench: Shri Saktijit Dey, Vice- & Shri M. Balaganeshassessment Year: 2011-12 With Assessment Year: 2012-13 With Assessment Year: 2014-15

Section 9(1)(vii)

Double Taxation Avoidance Agreement (DTAA). 2 | P a g e ITA No.5991/Del/2015; 288/Del/2017; 7850/Del/2017 & 2622/Del/2017 4. Briefly the facts are, the assessee is a non-resident corporate entity and a tax resident of Austria on the strength of Tax Residency Certification (TRC) issued in its favour. As stated ... engineering cannot be made taxable. 12. Pertinently, identical nature of dispute arose in case of SMS Concast AG Vs. DDIT (supra), wherein, the non-resident entity had entered into a separate contract with JSW Steel Ltd. and an Indian entity for offshore supply of plant and equipment, offshore supply

Andritz Ag, New Delhi vs. DDIT (International Taxation), New Delhi

In the result, appeal is dismissed

ITA 5991/DEL/2015[2011-12]Status: DisposedITAT Delhi27 Jun 2024AY 2011-12

Bench: Shri Saktijit Dey, Vice- & Shri M. Balaganeshassessment Year: 2011-12 With Assessment Year: 2012-13 With Assessment Year: 2014-15

Section 9(1)(vii)

Double Taxation Avoidance Agreement (DTAA). 2 | P a g e ITA No.5991/Del/2015; 288/Del/2017; 7850/Del/2017 & 2622/Del/2017 4. Briefly the facts are, the assessee is a non-resident corporate entity and a tax resident of Austria on the strength of Tax Residency Certification (TRC) issued in its favour. As stated ... engineering cannot be made taxable. 12. Pertinently, identical nature of dispute arose in case of SMS Concast AG Vs. DDIT (supra), wherein, the non-resident entity had entered into a separate contract with JSW Steel Ltd. and an Indian entity for offshore supply of plant and equipment, offshore supply

Income Tax Officer, Ward-2(1)(1), Bengaluru vs. G. Tex Inc, Bengaluru

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

ITA 1129/BANG/2023[2011-12]Status: DisposedITAT Bangalore26 Jun 2024AY 2011-12

Bench: Shri Chandra Poojari & Shri Keshav Dubeyassessment Year : 2011-12

For Appellant: Shri Hemanth, CAFor Respondent: Shri V. Parithivel, JCIT-DR
Section 142(1)Section 143(3)Section 148Section 195Section 195(1)Section 250Section 40

appellant company directly to the agent but instead paid by the customers / purchasers of the appellant company outside India. The overseas commission agents are non-resident and also do not have any permanent establishments (PE) or dependent personal agencies in India. The Ld.AO also could not bring any material ... overseas commission agents having any permanent establishments (PEs) in India. Therefore we are of the opinion that as the overseas commission agents are non-residents and they do not have PE in India and also the services are not rendered in India, the commission income in the hands

Rita Hemchand Gandhi, Mumbai vs. Income Tax Office. Int Tax Ward 2(3)(1), Mumbai

In the result, appeal of the assessee is allowed

ITA 4839/MUM/2023[2015-16]Status: DisposedITAT Mumbai26 Jun 2024AY 2015-16

Bench: Shri Narender Kumar Choudhry, Judicialmember & Shri Girish Agrawalassessment Year: 2015-16

For Appellant: Shri Rajesh S. Shah, CAFor Respondent: Smt. Mahita Nair, Sr. DR
Section 142Section 147Section 148Section 271(1)(c)Section 274

Assessing Officer, therefore, no penalty can be levied in the present case. 4. Brief facts of the case are that assessee is a non-resident and did not file her regular return of income. Case of the assessee was taken up for proceedings u/s. 147 r.w.s