Section 44DA of the Income Tax Act

Income-tax Act, 2025: s.59

Section 44DA of the Income-tax Act, 1961 corresponds to section 59 (Computation of royalty and fee for technical services in hands of non-residents) of the Income-tax Act, 2025.

Read section 59 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 44DA is ONGC v. CIT (376 ITR 306), cited in 241 of the 168 judgments on BharatTax that turn on this section.

Leading authorities on Section 44DA

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.

CIT v. Mitchell Drilling International P. Ltd.
380 ITR 130 · 2016 · High Court
84
citing judgments

For computing presumptive income under Section 44BB, gross receipts do not include service tax reimbursements received from a client (like ONGC) if such amounts are not payments for services or plant/machinery directly used in the prospecting, extraction, or production of mineral oils.

UCB India (P) Limited v. ACIT
121 ITD 131 · 2009 · ITAT
70
citing judgments

For transfer pricing purposes, distinct international transactions, such as royalty payments and manufacturing, should be benchmarked separately rather than aggregated. The selection of comparables must be based on a thorough Functions, Assets, and Risks (FAR) analysis, and loss-making entities are not automatically excluded if they satisfy other comparability criteria.

Nortel Networks India International Inc. v. DIT
386 ITR 353 · 2016 · High Court
61
citing judgments

The burden of proving the existence of a Permanent Establishment (PE) under a Double Taxation Avoidance Agreement (DTAA) rests squarely on the Income Tax Department.

CIT v. Ahmedbhai Umarbhai & Co.
18 ITR 472 · 1950 · Supreme Court
34
citing judgments

Profits derived from manufacturing and sale activities should be apportioned based on well-established accountancy principles, attributing a greater portion to the manufacturing activity at the place of manufacture.

Ishikawajma-Harima Heavy Industries Ltd. v. DIT
158 Taxmann 259 · 2007 · Supreme Court
31
citing judgments
DIT v. Rio Tinto Technical Services
340 ITR 507 · 2012 · High Court
22
citing judgments

Income that is considered business income for tax purposes must be computed on a net basis, accounting for expenses incurred to earn that income, and cannot be taxed in India on a gross basis.

Sumitomo Corpn v. Dy. CIT
114 ITD 61 · 2008 · ITAT
15
citing judgments

The term 'effectively connected' in Article 12(5) of the India-Japan DTAA means 'really connected', focusing on the substance of the connection rather than its form. This interpretation has been affirmed by the Delhi High Court and the Supreme Court.

Trib.). 14. Bramhacorp Hotels & Resorts Ltd. v. DDIT
103 Taxmann.com 344 · 2019 · ITAT
14
citing judgments

The Assessing Officer must comply with the directions of the Dispute Resolution Panel (DRP) when passing final assessment orders, and failure to do so may warrant setting aside the assessment with a direction for compliance.

Trib.). 13. DCIT v. Forum Homes (P.) Ltd.
192 ITD 184 · 2022 · ITAT
8
citing judgments

Judgments on Section 44DA