Section 195 of the Income Tax Act

Income-tax Act, 2025: s.393

Section 195 of the Income-tax Act, 1961 corresponds to section 393 (Tax to be deducted at source) of the Income-tax Act, 2025.

Read section 393 of the 2025 Act

Correspondence checked against the ICAI tabular mapping of the two Acts and the BharatTax.co section commentary.

The decision most relied on for Section 195 is Engineering Analysis Centre of Excellence (P) Ltd. v. CIT (432 ITR 471), cited in 914 of the 2,836 judgments on BharatTax that turn on this section.

Leading authorities on Section 195

Engineering Analysis Centre of Excellence (P) Ltd. v. CIT
432 ITR 471 · 2021 · Supreme Court
914
citing judgments

Payments for the supply or use of computer software, where there is no transfer of copyright but only a right to use the copyrighted product, are generally considered business profits and not 'royalty' or 'fees for technical services' under the Income Tax Act, 1961 or relevant DTAAs. This principle also applies to transponder fees, which are not taxable as royalty.

Bharat Earth Movers v. CIT
245 ITR 428 · 2000 · Supreme Court
901
citing judgments

A business liability that has definitely arisen in an accounting year is deductible even if it needs to be quantified and discharged later, as long as its incurring is certain and can be reasonably estimated.

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.

Apollo Tyres Ltd. v. CIT
255 ITR 273 · 2002 · Supreme Court
657
citing judgments

For the purpose of computing book profits under Section 115J, arrears of depreciation, including those arising from assets working extra shifts, are a necessary charge on profits if debited to the profit and loss account and are allowable as such.

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.

Allied Motors (P) Ltd. v. CIT
224 ITR 677 · 1997 · Supreme Court
398
citing judgments

Amendments to the Income-tax Act that are curative, clarificatory, or beneficial in nature apply retrospectively from the date the original statutory provision was introduced, even if not explicitly stated.

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.

Asia Satellite Telecommunications Co. Ltd. v. DIT
332 ITR 340 · 2011 · High Court
359
citing judgments

Payments for the use of equipment, such as satellite transponders, do not constitute 'royalty' under Section 9(1)(vi) of the Income-tax Act, 1961, or under applicable tax treaties, especially when there is no transfer of the right to use a process or underlying technology.

DIT v. New Skies Satellite BV
382 ITR 114 · 2016 · High Court
325
citing judgments

An amendment to the Income Tax Act, such as the Finance Act, 2012 amendment to Section 9(1)(vi) defining royalty, does not automatically override or alter the definition of 'royalty' as provided in a Double Taxation Avoidance Agreement (DTAA) unless the DTAA itself is bilaterally amended. The definition of royalty in a DTAA remains unaffected by unilateral changes to domestic law.

Judgments on Section 195

DCIT, New Delhi vs. M/S. Okaya Infocom Pvt. Ltd., Delhi

In the result, appeal of the revenue is dismissed

ITA 2209/DEL/2013[2009-10]Status: DisposedITAT Delhi22 Jan 2016AY 2009-10

Bench: Shri H.S.Sidhu & Shri Prashant Maharishidcit, Okaya Infocom Pvt. Ltd., Circle-13(1), Room No.406, Vs. D-7, Udyog Nagar, C.R.Building, I.P. Estate, Rohtak Road, New Delhi Delhi Pan:Aaaco8073E (Appellant) (Respondent) Assessee By : Sh. S.C. Gupta, Tax Consultant Revenue By : Sh.P Dam Kanunjna, Sr. Dr Date Of Hearing 23.11.2015 Date Of Pronouncement 22.01.2016 O R D E R Per Prashant Maharishi, A. M. 1. The Present Appeal Filed By The Revenue Is Directed Against The Order Of Learned Cit (A)- Xvi, Delhi Dated 31.01.2013 Passed For The Assessment Year 2009-10. The Revenue Raised Following Grounds Of Appeal: “1. The Ld, Cit (A) Has Erred In Law & On Facts In Deleting The Addition Made U/S 40(A)(I) Of The I.T. Act Amounting To Rs.3,78,73,836/-; 2. The Ld. Cit (A) Has Erred In Law Arid On Facts In Ignoring The Fact That The Assessee Has Computed Its Income Based On I.T.Act, 1961 & Not As Per Dtaa Between Usa & India. Therefore, All Provisions Of I.T.Act, 1961 Shall Apply. 3. The Ld, Cit (A) Has Erred In Law & On Facts In Not Considering The Fact That The Usa Office Being Merely A Branch Office & Provisions Of India Act Are Fully Applicable On It. 4. The Ld. Cit (A) Has Erred In Law Arid On Facts By Ignoring The Fact That Though The Payments Were Made By The Branch Office Out Of The Profits Earned; These Profits Were Directly Or Indirectly Attributed To India Office Of The Assessee. 5 The Ld. Cit (A) Has Erred In Law Arid On Facts In Failing To Consider The Fact That Sec.195 Of The Act Requires Tds To Be Deducted On All Payments For Any Managerial, Technical & Consultancy Fees

For Appellant: Sh. S.C. Gupta, Tax ConsultantFor Respondent: Sh.P Dam Kanunjna, Sr. DR
Section 115JSection 195Section 40Section 40aSection 9Section 9(1)(vii)