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

Ashok Sethi, Delhi vs. ACIT Circle- 70(1), New Delhi

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

ITA 5526/DEL/2025[2018-19]Status: DisposedITAT Delhi02 Feb 2026AY 2018-19

Bench: Shri Satbeer Singh Godara & Shri Naveen Chandraassessment Year: 2018-19 Sh. Ashok Sethi, Vs. Acit, 18, Sunder Nagar, Circle-70(1), Delhi New Delhi Pan: Bqqps1160L (Appellant) (Respondent) Assessee By Sh. Shailendra Mohan, Adv. Department By Ms. Harpreet Kaur Hansra, Sr. Dr Date Of Hearing 02.02.2026 Date Of Pronouncement 02.02.2026 Order Per Satbeer Singh Godara, Jm This Assessee’S Appeal For Assessment Year 2018-19, Arises Against The Commissioner Of Income Tax (Appeals)/Addl. Jcit(A)- 2, Chennai’S Din & Order No. Itba/Apl/S/250/2025- 26/1078504613(1), Dated 15.07.2025, Involving Proceedings Under Section 154 Of The Income-Tax Act, 1961 (Hereinafter Referred To As ‘The Act’). Heard Both The Parties. Case File Perused. 2. Suffice To Say, It Transpires During The Course Of Hearing That Both The Learned Lower Authorities Have Denied The Assessee’S Foreign Tax Credit Claim Of Rs.1,28,946/- Under Section 90 R.W.S. 90A Of The Act For The Sole Reason That He Had Not Filed/Uploaded His Corresponding Form 67 On Or Before The Prescribed “Due” Date In The Course Of Section 154 “Rectification”, Dated 18Th August, 2022 & Upheld In The Lower Appellate Discussion. This Is What Leaves The Assessee Aggrieved. 4. We Have Given Our Thoughtful Consideration To The Assessee’S & Department’S Vehement Arguments Reiterating Their Respective Stands. It Further Emerges That The Assessee Had Subsequently Complied With The Above Form 67 Filing/Uploading Post Facto The Due Date Thereof As Admitted By Both The Parties. & Also, That Instant Identical Issue Has Been Decided By This Tribunal In Gurcharan Singh Vs. Ito

Section 139Section 139(1)Section 154Section 90