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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

Ge Subsidiary Inc, 63 (Successor in Interest of Monogram Licesing International Inc.), Mumbai vs. ACIT (It) RG. 3 (2)(2), Mumbai

In the result, appeal of the assessee is partly allowed

ITA 5906/MUM/2018[2014-15]Status: DisposedITAT Mumbai26 Jun 2024AY 2014-15

Bench: Shri Amit Shukla & Shri Gagan Goyalge Subsidiary Inc, 63 (Successor In Interest Of Monogram Licensing International Inc.) C/O. Pwc House, Plot No. 18 A, Guru Nanak Station Road, Bandra, Mumbai- 400050 Pan: Aadcm6233F Appellant Vs. Acit (Intl Taxation) - 3(2) (2), Mumbai, Room No. 1615, Air India Building, Nariman Point, Mumbai- 400 021 Respondent

For Appellant: Shri Dhanesh Bafna, Shri PratikFor Respondent: Shri Abhishek Tharwal, Ld. DR
Section 143(3)Section 144C(13)Section 234BSection 92C(3)

considered necessary either at or before the appeal hearing. 2. The brief facts of the case are that assessee is a non-resident company registered in the USA and a part of the GE group. The Assessee filed its return of income on 22.01.2016. The assessee is earning Royalty income

Blackline Systems, Inc., California, United States vs. ACIT, Circle 1(1)(2), International Taxation, New Delhi, Delhi

In the result, the appeal of the assessee is allowed

ITA 3798/DEL/2023[2021-22]Status: DisposedITAT Delhi26 Jun 2024AY 2021-22

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

For Appellant: Sh. Nageshwar Rao, AdvFor Respondent: Sh. Vizay B. Vasanta, CIT-DR
Section 143(3)

Supreme Court, after determining various clauses of EULA/ Distribution agreement held that payments made by the Appellant to non-resident vendors shall not be taxable as Royalty under the relevant DTAA, the relevant extract of decision is as under: “Given the definition of royalties contained in Article ... facts of these cases. 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

Meenakshi Dhananjai, Chennai vs. International Taxation Ward - 1(1), Chennai

In the result, appeal filed by the assessee is allowed

ITA 1484/CHNY/2023[2014-15]Status: DisposedITAT Chennai25 Jun 2024AY 2014-15

Bench: Shri Aby T. Varkey & Shri S.R.Raghunathaआयकर अपील सं./Ita No.1484/Chny/2023 िनधा"रण वष"/Assessment Year: 2014-15 V. Smt. Meenakshi Dhananjai, International Taxation, Plot No.23, Meenakshi Apartments, Ward-1(1), Sundaram Colony, Chennai. 1St Main Road, Selaiyur, Chennai-600 073. [Pan: Alfpd 7554 A] (अपीलाथ"/Appellant) (""यथ"/Respondent)

For Appellant: Shri P. Murali Mohana RaoFor Respondent: Shri Krishnan Ramaswamy
Section 143(2)Section 144Section 147Section 148

issuing notice u/s.148 of the Act dated 28.03.2018. 3. The brief facts pertaining to the legal issue are that the assessee is a lady non-resident who had filed her return of income for AY 2014-15 on 20.06.2014 admitting total income of Rs.15,26,790/-. Later, the case

Sunil Kumar Nayak, Jhunjhunu vs. Circle (International Taxation), Jaipur

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

ITA 148/JPR/2024[2018-19]Status: DisposedITAT Jaipur25 Jun 2024AY 2018-19

Bench: Ld. Ao.

For Appellant: Sh. Anoop Bhatia, CAFor Respondent: Sh. Rajesh Kumar Meena, Addl. CIT
Section 142(1)Section 148Section 69

this appeal, the assessee has raised following grounds: - “1 The assessee a Resident but not ordinarily resident for the year under appeal had a Non-resident External account with SBI Pillani and a Saving account with Axis Bank, Pillani. A notice u/s 148 of the Act was issued ... raised the assessee has filed a detailed written submissions and the same is reiterated herein below:- “The assessee is an individual and a ‘Non-resident Indian’ for the year under consideration. His stay in India in the relevant year was 110 days (PB page 48) Copy of passport enclosed

Mr. Shanmugam Ravi, Bengaluru vs. Deputy Commissioner of Income Tax, Assessement Circle-2(1), Bengaluru

ITA 951/BANG/2023[2021-22]Status: DisposedITAT Bangalore25 Jun 2024AY 2021-22

Bench: Shri Chandra Poojari & Shri Keshav Dubey

Section 143(3)Section 234A

authorities below failed to appreciate that the interest income of Rs.4,87,50,072/- earned in India by a Non-Resident may be taxed in India subject to a maximum rate of 10% of the gross amount as per Article 11 of DTAA between India and New Zealand under ... authorities below failed to appreciate that the dividend income of Rs.4,11,026/- earned in India by a Non-Resident may be taxed in India subject to a maximum rate of 15% of the gross amount as per Article 10 of DTAA between India and New Zealand under the facts

Astrazeneca Pharma India Limited, Bangalore vs. Deputy Commissioner of Income Tax, Circle-1(1)(1), Bangalore

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

ITA 284/BANG/2021[2016-17]Status: DisposedITAT Bangalore25 Jun 2024AY 2016-17

Bench: Shri Chandra Poojari & Shri Soundararajan K.

For Appellant: Sri Nikhil Tiwari, A.RFor Respondent: Ms. Neera Malhotra, D.R
Section 143(3)Section 37Section 37(1)

section and sections 92, 92C, 92D and 92E, “international transaction “ means a transaction between two or more associated enterprises, either 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 ... determined in substance between such other person and the associated enterprise [where the enterprise or the associated enterprise or both of them are non-residents irrespective of whether such other enterprise is a non-resident or no].” 11.5 Thus, it can be concluded from the above definition of international transaction

Snc Lavalin Inc., Delhi vs. The Assistant Commissioner of Income Tax, Circle Int. Tax 3(1)(2), Delhi

In the result, the Appeal of the assessee is allowed, the Stay Application of the assessee is dismissed as infructuous

ITA 3691/DEL/2023[2021-22]Status: DisposedITAT Delhi25 Jun 2024AY 2021-22

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

For Appellant: Sh. S. K. Aggarwal, CAFor Respondent: Sh. Vizay B. Vasanta, CIT-DR
Section 139(1)Section 143(3)Section 144C(1)Section 270ASection 9(1)(vii)

Supreme Court, after determining various clauses of EULA/ Distribution agreement held that payments made by the Appellant to non-resident vendors shall not be taxable as Royalty under the relevant DTAA, the relevant extract of decision is as under: “Given the definition of royalties contained in Article ... 36/Del/2024 SNC Lavalin Inc. 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

Sajjad Ali, Chittorgarh vs. DCIT(Intl)- Jaipur, Jaipur

ITA 459/JPR/2024[2016-17]Status: DisposedITAT Jaipur24 Jun 2024AY 2016-17

Bench: SHRI RATHOD KAMLESH JAYANTBHAI (Accountant Member), SHRI NARINDER KUMAR (Judicial Member)

For Appellant: Sh. Shrawan Kumar Gupta, AdvFor Respondent: Sh. Rajesh Ojha (CIT-DR)
Section 133(6)Section 142(1)Section 144Section 147Section 148Section 263Section 54

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR Jh jkBkSM+ deys'k

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

In the result appeal of the assessee is allowed

ITA 50/MUM/2024[2013-14]Status: DisposedITAT Mumbai24 Jun 2024AY 2013-14

Bench: Shri Prashant Maharishi, Am & Shri Sunil Kumar Singh, Jm Ito. Int Tax Ward Rita Hemchand Gandhi 2(3)(1) Ayodhya Apartments, 17Th Floor, Air India Flat No.101, Ramgali, Vs. Building, Kandivali (West), Nariman Point, Mumbai-400 067 Mumbai-400 021 (Appellant) (Respondent) Pan No. Akepg6370P

For Appellant: Shri Rajesh S. Shah, ARFor Respondent: Smt. Mahita Nair, DR
Section 143Section 147Section 148Section 194ASection 195Section 271Section 271(1)(c)

only after issue of notice under section 148 of the act. 04. During penalty proceedings assessee submitted a reply stating that she is a non-resident Indian settled in UAE since 1978 and possesses tax residency certificate of UAE. For impugned assessment year only source of income was interest ... provisions of section 115G of the act which provides that return of income is not required to be filed in case of non-resident under section 139 (1) of the act if the income is consisting only of investment income and also tax deductible at source has Rita Hemchand Gandhi

Bajaj Holdngs & Investment Ltd ( Erstwhile Bajaj Auto Ltd), Mumbai vs. Addl CIT RG 3(1), Mumbai

In the result, the appeal of the assessee is partly allowed and appeal of the revenue is dismissed

ITA 3043/MUM/2010[2002-013]Status: DisposedITAT Mumbai24 Jun 2024AY 2002-013

Bench: Shri Vikas Awasthy & Shri Amarjit Singhbajaj Holdings & Vs. Additional Commissioner Investment Ltd. Of Income-Tax, Range 3(1) Erstwile Bajaj Auto Ltd.) Aayakar Bhavan, Bajaj Bhavan, 226, M.K. Road, Nariman Point, Mumbai – 400 020 Mumbai – 400 021 स्थायी लेखा सं./जीआइआर सं./Pan/Gir No:Aaacb3370K Appellant .. Respondent Dcit-3(4) Vs. M/S Bajaj Holding & Room No. 481-2, 4Th Floor, Investment Limited Aaykar Bhavan, (Erstwhile Bajaj Auto Ltd) Mumbai – 400020 226, Bajaj Bhavan, 2Nd Floor, Jamnalal Bajaj Marg, Nariman Point Mumbai – 400 021 स्थायी लेखा सं./जीआइआर सं./Pan/Gir No:Aaacb3370K Appellant .. Respondent Appellant By : Percy Pardiwala & Vasanti Patel Respondent By : Ankush Kapoor

For Appellant: Percy Pardiwala &For Respondent: Ankush Kapoor
Section 143(3)Section 2(47)

find that ld. CIT(A) has considered this fact that in both the cases the payments were made to the parties who were non-resident and were not having any permanent establishment in India, therefore, no TDS was deducted. We have also considered that similar issue on identical fact ... No.3383/MUM/2019) b) ITAT- AY 2000-01 (ITA No.3055/Mum/05) In the aforesaid cases the ITAT held that since the payment were made to the non-resident who were having no business connection in India, therefore, appeal of the revenue was dismissed. 78. In view of above facts and findings

Addl CIT RG 3(1), Mumbai vs. Bajaj Auto Ltd, Mumbai

In the result, the appeal of the assessee is partly allowed and appeal of the revenue is dismissed

ITA 2899/MUM/2010[2002-03]Status: DisposedITAT Mumbai24 Jun 2024AY 2002-03

Bench: Shri Vikas Awasthy & Shri Amarjit Singhbajaj Holdings & Vs. Additional Commissioner Investment Ltd. Of Income-Tax, Range 3(1) Erstwile Bajaj Auto Ltd.) Aayakar Bhavan, Bajaj Bhavan, 226, M.K. Road, Nariman Point, Mumbai – 400 020 Mumbai – 400 021 स्थायी लेखा सं./जीआइआर सं./Pan/Gir No:Aaacb3370K Appellant .. Respondent Dcit-3(4) Vs. M/S Bajaj Holding & Room No. 481-2, 4Th Floor, Investment Limited Aaykar Bhavan, (Erstwhile Bajaj Auto Ltd) Mumbai – 400020 226, Bajaj Bhavan, 2Nd Floor, Jamnalal Bajaj Marg, Nariman Point Mumbai – 400 021 स्थायी लेखा सं./जीआइआर सं./Pan/Gir No:Aaacb3370K Appellant .. Respondent Appellant By : Percy Pardiwala & Vasanti Patel Respondent By : Ankush Kapoor

For Appellant: Percy Pardiwala &For Respondent: Ankush Kapoor
Section 143(3)Section 2(47)

find that ld. CIT(A) has considered this fact that in both the cases the payments were made to the parties who were non-resident and were not having any permanent establishment in India, therefore, no TDS was deducted. We have also considered that similar issue on identical fact ... No.3383/MUM/2019) b) ITAT- AY 2000-01 (ITA No.3055/Mum/05) In the aforesaid cases the ITAT held that since the payment were made to the non-resident who were having no business connection in India, therefore, appeal of the revenue was dismissed. 78. In view of above facts and findings

Sheladia Associates Inc, Sd Road vs. ADIT(Int Taxn)-2, Hyderabad

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

ITA 537/HYD/2023[2021-22]Status: DisposedITAT Hyderabad21 Jun 2024AY 2021-22

Bench: Shri K.Narasimha Chary & Shri Madhusudan Sawdiaआ.अपी.सं / Ita No. 537/Hyd/2023 (धििाारण वर्ा / Assessment Year: 2021-22) Sheladia Associates Inc, Adit (Int Taxn)-2, Secunderabad Vs. Hyderabad [Pan No. Aafcs7792F] अपीलार्थी / Appellant प्रत्‍यर्थी / Respondent

For Appellant: Ms. Aluru V. Sai Sudha, ARFor Respondent: Ms. L. Sunitha Rao, CIT-DR
Section 133(6)Section 143(3)Section 144C(5)Section 37Section 44C

Taxman 682 (Bombay), the Hon’ble Bombay High Court held that, Section 44C is applicable only in the cases of those non-residents, who carry on business in India through their branches; that the said section was introduced to get over difficulties in scrutinising claims in respect of general administrative

Vishwesh Venkatraman, Norway and Uk vs. ITO (It) 4(3)(1), Air India Building Mumbai

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

ITA 1515/MUM/2024[2017-2018]Status: DisposedITAT Mumbai21 Jun 2024AY 2017-2018

Bench: Shri Narendra Kumar Billaiya & Shri Anikesh Banerjee

For Appellant: S/Shri Harshavardhana Datar / Amit NegandhiFor Respondent: Shri Anil Sant, Addl.CIT-DR
Section 144C(13)Section 147Section 151Section 234CSection 3Section 69

Officer, Pursuant to directions from Ld. Dispute Resolution Panel (DRP-2), erred in initiating the reassessment without appreciating the fact that assessee is the non-resident and was never required to file the return of income, hence, assessment is erroneous on facts and bad in law and liable

Late Radha Kishin Bhatia (Through Leagl Heir Kishin M Bhatia), Mumbai vs. ITO, Int Tax Ward 1(2)1, Mumbai

In the result, ITA No.1084/Mum/2024 is allowed for statistical purposes

ITA 1084/MUM/2024[2012-13]Status: DisposedITAT Mumbai21 Jun 2024AY 2012-13

Bench: Shri Narendra Kumar Billaiya & Shri Anikesh Banerjee

For Appellant: NoneFor Respondent: Shri Anil Sant – Addl.CITDR
Section 144Section 250

passed by the Income Tax Officer – (IT)-1(2)(1), Mumbai (The A.O) Citing nonattendance. The Appellant is a Non-resident and had E-mail id used in the profile and Form 35 belonged to the earlier CA and thus did not receive any notices. The appellant was not aware

Bnp Paribas, Mumbai vs. ACIT (It), Circle 1(3)(1), Mumbai

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

ITA 4449/MUM/2023[AY 2021-22]Status: DisposedITAT Mumbai21 Jun 2024

Bench: Shri Narendra Kumar Billaiya & Shri Anikesh Banerjee

For Appellant: Shri Farooq IraniFor Respondent: Shri Satyapal Kumar, CIT-DR
Section 139Section 142Section 143Section 143(2)Section 143(3)Section 144C(13)Section 148Section 2

Reference was made to non- discrimination clause in the Treaty, as per which there should not be any discrimination between the domestic and the non-resident company. The Tribunal, however, referred to the Explanation in the Section 90, inserted in the IT Act with retrospective effect from

DCIT 9(1)(1), Mumbai vs. Afcons Infrastructure Ltd, Mumbai

In the result, the appeal of the Revenue and the C

ITA 4798/MUM/2015[2010-11]Status: DisposedITAT Mumbai21 Jun 2024AY 2010-11

Bench: Pavan Kumar Gadale, Jm & Ms Padmavathy S, Am

For Appellant: Shri J.D. Mistri / Nitesh Joshi, ARFor Respondent: Shri P. Sudhakar Naik, Sr. DR
Section 115JSection 36(1)(iii)

sections 92, 92C, 92D and 92E, "international transaction" means 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

Gecom International Pvt. Ltd., New Delhi vs. DCIT, New Delhi

In the result, the appeal of the assessee is allowed

ITA 1613/DEL/2016[2012-13]Status: DisposedITAT Delhi21 Jun 2024AY 2012-13

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

For Appellant: Sh. Ved Jain, Adv. &For Respondent: Ms. Parul Singh, Sr. DR
Section 246ASection 250(6)Section 5(2)Section 9

Section 40(a)(ia) of the Act without appreciating that Section 40(a)(ia) of the Act does not squarely cover payments made to non-residents. Section 40(a)(ia) of the Act covers only payments made to resident persons and inter alia reads as under: "40. Notwithstanding anything ... prejudice to above, AO has made disallowance u/s 4(a)(ia) of the Act and the same is not applicable on payment made to non-residents. Relevant section is as under: “40. Notwithstanding anything to the contrary in sections 30 to [38], the following amounts shall not be deducted

Shyam Kumar Sadashivan Pillai, Mumbai vs. Income Tax Officer, Circle 27(3)(1), Navi Mumbai

In the result, the appeal is allowed

ITA 897/MUM/2024[2015-16]Status: DisposedITAT Mumbai20 Jun 2024AY 2015-16

Bench: Ms Padmavathy S, Am & Shri Raj Kumar Chauhan, Jm

For Appellant: Shri Sukhsagar Syal, AdvocateFor Respondent: Shri G. Santosh Kumar, Sr. DR
Section 142(1)Section 143(2)Section 147Section 148Section 250Section 271(1)(b)Section 275

alter, amend or delete all or any of the grounds of appeal before or during the course of hearing. 2. The assessee is a non-resident individual residing in United Arab Emirates (UAE) for the last 30 years. On the basis of information received to the effect that the assessee ... lack of bona fide. In the light of the above legal position we will now look at the assessee's case. Assessee is a non-resident Indian and has been living out side India for the last 30 years. The assessee during the year under consideration sold a house property

Geodate Engineering S.P.A., New Delhi vs. ACIT, Circle Int. Tax 1(3)(1), New Delhi

The appeal is allowed and the case is remand back to DRP to decide afresh as discussed above

ITA 8770/DEL/2019[2016-17]Status: HeardITAT Delhi20 Jun 2024AY 2016-17

Bench: Dr. B.R.R. Kumar & Sh. Sudhir Kumarassessment Year: 2016-17 Geodate Engineering Vs. Acit 2Nd S.P.A., 206-A, Floor, Circle Intl. Tax 1(3)(1) Ndm-1, Building Netaji, New Delhi Subhash Place, New Delhi Pan No.Aadcg7297H (Appellant) (Respondent) Appellant By Sh. Salil Aggarwal, Sr. Advocate Sh. Shailesh Gupta, Ca Sh. Madhur Aggarwal, Advocate Sh. Mahir Aggarwal, Advocate Respondent By Sh. Abhishek Sharma, Cit Dr Date Of Hearing: 03/06/2024 Date Of Pronouncement: 20/06/2024 Order Per Sudhir Kumar, Jm:

Section 142(1)Section 143(2)Section 143(3)Section 9

grossly erred both in law and on facts by treating the receipts earned by way of "Engineering Design Services", so provided by the non-resident assessee in India as Business Profits under Article 7 of India Italy DTAA, by failing to appreciate the fact that the engineering design services

M/S. Herbalife International India Private Limited, Bangalore vs. Deputy Commissioner of Income-Tax, International Taxation- Circle-1(1), Bangalore

In the result, appeal filed by the assessee is allowed

ITA 718/BANG/2023[2013-14]Status: DisposedITAT Bangalore19 Jun 2024AY 2013-14

Bench: Shri Chandra Poojarirandshri Prakash Chand Yadavassessment Year : 2013-14

For Appellant: Shri. Percy Pardiwala, Sr. AdvocateFor Respondent: Shri. Harischandra Naik, CIT-DR
Section 2Section 201Section 201(1)Section 9Section 9(1)(vii)

services and making technical knowledge available at the same time is satisfied.” 75. It is not even the allegation of the revenue that the non-residents had made available to the assessee, the knowledge generated in the course of rendering managerial services. In our view the services rendered were purely