Section 90 of the Income Tax Act

Income-tax Act, 2025: s.159

Section 90 of the Income-tax Act, 1961 corresponds to section 159 (Agreement with foreign countries or specified territories and adoption by Central Government of Agreement between Specified associations for double taxation relief) of the Income-tax Act, 2025.

Read section 159 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 90 is Engineering Analysis Centre of Excellence (P) Ltd. v. CIT (432 ITR 471), cited in 914 of the 1,075 judgments on BharatTax that turn on this section.

Leading authorities on Section 90

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.

Union of India v. Azadi Bachao Andolan
263 ITR 706 · 2003 · Supreme Court
691
citing judgments

A citizen is free to carry on business within the law, and mere tax planning without a motive to evade taxes through colorable devices is not frowned upon. The liability to taxation, for the purpose of tax treaty application, is a legal situation, not the fiscal fact of actual payment.

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.

PCIT v. State Bank of Patiala
391 ITR 218 · 2017 · High Court
228
citing judgments

Income from shares and securities held by banks as stock-in-trade constitutes business income, hence Section 14A disallowance is not attracted. Further, any disallowance under Section 14A cannot exceed the actual amount of exempt income earned by the assessee during the year.

CIT v. Eli Lilly & Co.(India) Pvt. Ltd.
178 Taxmann 505 · 2009 · Supreme Court
172
citing judgments
Gramaphone Co. of India Ltd. v. Birendra Bahadur Pandey
132 Taxmann 373 · 2003 · Supreme Court
146
citing judgments
Techno Shares and Stocks Ltd. v. CIT
327 ITR 323 · 2010 · Supreme Court
130
citing judgments

Membership rights and business contracts, as 'business or commercial rights of similar nature' to a license or franchise, qualify as intangible assets eligible for depreciation under Section 32(1)(ii) of the Income-tax Act.

CIT v. Visakhapatnam Port Trust
144 ITR 146 · 1983 · High Court
124
citing judgments

Sections 4 and 5 of the Income Tax Act, which define total income and chargeability, are subject to Section 90, meaning that Double Taxation Avoidance Agreements (DTAAs) override the Act's provisions in case of a conflict.

Wipro Ltd. v. DCIT
382 ITR 179 · 2016 · High Court
122
citing judgments

Foreign Tax Credit (FTC) is allowable even if no tax is paid in India on the corresponding income due to deductions under sections 10A or 10AA, or losses in other units. The scope of income eligible for deduction under Section 10AA includes interest on deposits and realized gains on forward contracts.

DCIT v. Total Oil India Pvt. Ltd.
149 Taxmann.com 332 · 2023 · ITAT
115
citing judgments

Judgments on Section 90

Prajosh Nanu, Mumbai-400022 vs. Asst. Dirctor of Income Tax, CPC, Bangalore

In the result, the appeal of the assessee is allowed

ITA 1169/MUM/2022[2019-20]Status: DisposedITAT Mumbai21 Oct 2022AY 2019-20

Bench: Shri B. R. Baskaran, Am & Shri Aby T. Varkey, Jm आयकर अपील सं/ I.T.A. No.1169/Mum/2022 (निर्धारण वर्ा / Assessment Years: 2019-20) Prajosh Nanu बिधम/ Acit, Cpc Room No. 3, Plot No. 265, Vs. Sanjoli Building, Sulochana Shetti, Marg Sion West, Mumbai-400022. स्थधयी लेखध सं./जीआइआर सं./Pan/Gir No. : Apkpk0260R (अपीलार्थी /Appellant) .. (प्रत्यर्थी / Respondent) Assessee By: Shri Ajit Jain & Siddhesh Chaugule Revenue By: Shri P. D. Chougule (Sr. Ar) सुनवाई की तारीख / Date Of Hearing: 06/10/2022 घोषणा की तारीख /Date Of Pronouncement: 21/10/2022 आदेश / O R D E R Per Aby T. Varkey, Jm: This Is An Appeal Preferred By The Assessee Against The Order Of The Ld. Commissioner Of Income Tax (Appeals) (Nfac), Delhi Dated 22.03.2022 For The Assessment Year 2019-20. 2. The Relevant Grounds Of Appeal Raised By The Assessee Are As Under: - “1. In The Facts & Circumstances Of The Case & In Law, The Learned Commissioner Of Income Tax (Appeals) Herein Referred As ‘The Ld. Cit (A)’ Has Erred In Not Granting The Credit Of Foreign Taxes Paid As Should Have Been Duly Allowed Under Article 24(2) Of The India-Uk Double Tax Avoidance Agreement (‘Dtaa’) Read With Section 90 Of The Act, Even Though The Appellant Was ‘Resident’ In India & Therefore, Had Offered His Global Income To Tax In India Including The Uk Sourced Income Which Had Suffered Tax In Uk As Well.

For Appellant: Shri Ajit Jain & SiddheshFor Respondent: Shri P. D. Chougule (Sr. AR)
Section 143(1)Section 154Section 234CSection 90

Tashi Air Private Limited, Kolkata vs. Deputy Commissioner of Income Tax, Circle-2(1), International Taxation, Kolkata

The appeal of the assessee is allowed, whereas the appeal of the revenue is hereby dismissed

ITA 314/KOL/2022[2018-19]Status: DisposedITAT Kolkata12 Oct 2022AY 2018-19

Bench: Shri Sanjay Garg & Dr. Manish Boradi.T.A No.297/Kol/2021 Assessment Year: 2017-18 Dcit, International Taxation, Circle-2(1), Kolkata .......….…..…..........….. Revenue Vs. M/S Tashi Air Pvt. Ltd..................…………..............................................…… Assessee 38, Tivoli Court, 1A, Ballygunge Circular Road, Beckbagan, Kolkata-700019. [Pan: Aaect9735E] I.T.A No.314/Kol/2022 Assessment Year: 2018-19 M/S Tashi Air Pvt. Ltd..................…………..............................................…… Assessee 38, Tivoli Court, 1A, Ballygunge Circular Road, Beckbagan, Kolkata-700019. [Pan: Aaect9735E] Vs. Dcit, International Taxation, Circle-2(1), Kolkata .......….…..…..........….. Revenue Appearances By: Shri Manish Kanojia, Cit & Smt. Ranu Biswas, Addl. Cit, Appeared On Behalf Of The Revenue. Shri Dipayan Basu, Ar, Appeared On Behalf Of The Assessee. Date Of Concluding The Hearing : September 19, 2022 Date Of Pronouncing The Order : October 12, 2022 आदेश / Order संजय गग", "या"यक सद"य "वारा / Per Sanjay Garg: The Captioned Are The Cross-Appeals One Filed By The Revenue & The Other By The Assessee. The Appeal Filed By The Revenue Is Directed Against The Order Dated 21.05.2021 Of The Commissioner Of Income Tax (Appeals)-22, Kolkata [Hereinafter Referred To As The ‘Cit(A)] Whereas The Appeal Filed By The Assessee Is Against The Order Dated 30.03.2022 Of The Assessing Officer Pursuant To The Directions Of The Dispute Resolution Panel (Hereinafter Referred To As The ‘Drp’).

Section 144CSection 9Section 90

DCIT, International Taxation, Cir. 2(1), Kolkata vs. M/S Tashi Air Pvt. Ltd., Kolkata

The appeal of the assessee is allowed, whereas the appeal of the revenue is hereby dismissed

ITA 297/KOL/2021[2017-18]Status: DisposedITAT Kolkata12 Oct 2022AY 2017-18

Bench: Shri Sanjay Garg & Dr. Manish Boradi.T.A No.297/Kol/2021 Assessment Year: 2017-18 Dcit, International Taxation, Circle-2(1), Kolkata .......….…..…..........….. Revenue Vs. M/S Tashi Air Pvt. Ltd..................…………..............................................…… Assessee 38, Tivoli Court, 1A, Ballygunge Circular Road, Beckbagan, Kolkata-700019. [Pan: Aaect9735E] I.T.A No.314/Kol/2022 Assessment Year: 2018-19 M/S Tashi Air Pvt. Ltd..................…………..............................................…… Assessee 38, Tivoli Court, 1A, Ballygunge Circular Road, Beckbagan, Kolkata-700019. [Pan: Aaect9735E] Vs. Dcit, International Taxation, Circle-2(1), Kolkata .......….…..…..........….. Revenue Appearances By: Shri Manish Kanojia, Cit & Smt. Ranu Biswas, Addl. Cit, Appeared On Behalf Of The Revenue. Shri Dipayan Basu, Ar, Appeared On Behalf Of The Assessee. Date Of Concluding The Hearing : September 19, 2022 Date Of Pronouncing The Order : October 12, 2022 आदेश / Order संजय गग", "या"यक सद"य "वारा / Per Sanjay Garg: The Captioned Are The Cross-Appeals One Filed By The Revenue & The Other By The Assessee. The Appeal Filed By The Revenue Is Directed Against The Order Dated 21.05.2021 Of The Commissioner Of Income Tax (Appeals)-22, Kolkata [Hereinafter Referred To As The ‘Cit(A)] Whereas The Appeal Filed By The Assessee Is Against The Order Dated 30.03.2022 Of The Assessing Officer Pursuant To The Directions Of The Dispute Resolution Panel (Hereinafter Referred To As The ‘Drp’).

Section 144CSection 9Section 90