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Non-Resident Taxation: Computation of Income, Withholding Tax and DTAA Benefits

Non-residents are taxed in India only on India-sourced income. Learn the key DTAA concepts (PE, business profits, royalty, FTS), Section 195 withholding tax obligations, and how...

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International Tax
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May 13, 2026
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May 13, 2026
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Last updated: May 2026Verified against: Government sources

India taxes non-residents only on India-sourced income under Section 5(2) of the Income Tax Act 2025 (ITA 2025). However, the interaction of domestic tax law with 90+ Double Taxation Avoidance Agreements (DTAAs) creates a complex but structured framework that non-residents must navigate.

Scope of Non-Resident Taxation (Section 5(2))

A non-resident is taxable in India on:

  • Income received (or deemed received) in India during the tax year
  • Income that accrues or arises in India (or deemed to accrue/arise)

Specifically, income is deemed to accrue/arise in India (Section 9) when it arises from:

  • Business connection in India
  • Property situated in India
  • Asset or source of income in India
  • Salary for services rendered in India
  • Dividends from Indian company
  • Interest paid by Indian resident/PE
  • Royalty/FTS paid by Indian resident/PE

Double Taxation Avoidance Agreement (DTAA) — Key Articles

ArticleTitleKey Provision
Article 4ResidentTie-breaker rules for dual residency (PoEM, habitual abode)
Article 5Permanent EstablishmentDefinition of PE; construction PE (6+ months); service PE
Article 7Business ProfitsNon-resident business profits taxable in India only if through PE
Article 10DividendsSource state WHT limited (e.g., 5%/15% in most DTAAs)
Article 11InterestWHT limited (10%/15%); may exempt certain interest
Article 12Royalties and FTSWHT 10%-15% typically; India often insists on 10% with FTS article
Article 13Capital GainsSome DTAAs allow CG only in residence country; some allow source taxation
Article 15Income from EmploymentSalary taxable where services rendered (183-day rule exception)

Permanent Establishment (PE) Types

  • Fixed place PE: Office, factory, branch, workshop, mine, construction site (if > 6/12 months)
  • Agency PE: Person habitually concluding contracts on behalf of the enterprise in India
  • Service PE: Employees providing services in India for > 90 or 183 days (depending on DTAA)
  • BEPS additions (via MLI): Anti-fragmentation — cannot split a single project to stay below PE threshold

Section 195 — Withholding Tax on Non-Resident Payments

  • Every person paying any sum to a non-resident which is chargeable to tax in India must deduct TDS at source
  • Applicable rate: Higher of DTAA rate (with Form 10F + TRC) or domestic rate under ITA 2025
  • If payment is not taxable in India: No TDS (but Form 15CA/15CB filing required for cross-border payments)
  • Payor can apply to AO for NIL/Lower TDS certificate (Section 197A equivalent)

Common Section 195 TDS Rates

Payment TypeDomestic RateTypical DTAA Rate
Royalty / FTS20%10%-15%
Interest20%10%-15%
Dividends20%5%-15%
Capital gains (LTCG equity)12.5%Per Article 13

How to Claim DTAA Benefits in India

  1. Obtain Tax Residency Certificate (TRC) from country of residence
  2. File Form 10F with Indian deductor (or on income tax portal)
  3. Submit TRC + Form 10F to Indian payer before payment
  4. Payer deducts TDS at DTAA rate (not domestic rate)
  5. Non-resident files India ITR (if applicable) claiming DTAA relief and FTC for taxes paid in residence country

GAAR and Anti-Avoidance

  • GAAR (General Anti-Avoidance Rules) — Section 96 ITA 2025: Can override DTAA benefits if arrangement is impermissible avoidance arrangement
  • MLI Principal Purpose Test (PPT): Treaty benefits denied if obtaining the benefit was one of the principal purposes of an arrangement
  • Beneficial ownership required for WHT reduction under DTAA

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Quick recapKey facts & short answers

Key Facts About Non-Resident Taxation

  • Applies in: All states across India, under the relevant central law.
  • Mode: Mostly online via the official government portal.
  • Typical timeline: Ranges from a few days to a few weeks depending on the case.
  • Non-compliance: May attract penalties, interest or late fees.
  • Expert help: TaxClue completes Non-Resident Taxation end to end for you.

How are non-residents taxed in India?

Non-residents are taxed under ITA 2025 only on income that accrues or arises in India, or is received in India, or is deemed to accrue or arise in India (Section 5(2)). India-source income includes: salary for India services, property income, capital gains on India assets, and business profits through PE in India.

What is a Permanent Establishment (PE)?

PE under DTAA Article 5 is a fixed place of business (office, factory, branch, construction site >6 months) through which business is carried on. Business profits of non-resident are taxable in India only if attributable to a PE. Profits not attributable to PE are taxable only in country of residence.

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Non-Resident Taxation: a key compliance topic in Indian tax and corporate law that businesses and individuals must understand to remain compliant.

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Disclaimer: This article is for general informational purposes only and does not constitute professional tax, legal or financial advice. Laws, rates and due dates change and can vary by individual case — always verify with the relevant government source (e.g. mca.gov.in, incometax.gov.in) or consult a qualified professional before acting. TaxClue accepts no liability for decisions taken based on this content.

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Questions, answered

Short, direct answers to the 6 questions readers ask most on this topic.

Non-residents are taxed under ITA 2025 only on income that accrues or arises in India, or is received in India, or is deemed to accrue or arise in India (Section 5(2)). India-source income includes: salary for India services, property income, capital gains on India assets, and business profits through PE in India.

PE under DTAA Article 5 is a fixed place of business (office, factory, branch, construction site >6 months) through which business is carried on. Business profits of non-resident are taxable in India only if attributable to a PE. Profits not attributable to PE are taxable only in country of residence.

Section 195: Any person making payment to a non-resident that is taxable in India (salary, royalty, FTS, interest, capital gains, dividends) must deduct TDS. Rate is DTAA rate or ITA rate (whichever is lower if NR provides TRC + Form 10F). No TDS if income not taxable in India.

Royalty (Article 12): Payments for use of copyright, patent, trademark, trade secret. FTS (Fees for Technical Services, Article 12A or special Article): Payments for managerial, technical, or consultancy services. India typically taxes royalty/FTS at 10-15% in DTAAs.

DTAA benefits (lower withholding tax rates) are available only to the beneficial owner of the income. A conduit company that merely passes on income is not the beneficial owner. Anti-treaty shopping provisions require the recipient to be the true owner with full right to enjoy the income.

OECD Multilateral Convention to Implement BEPS Tax Treaty Measures (MLI) modifies existing DTAAs to include anti-avoidance provisions: Principal Purpose Test (PPT), Limitation on Benefits (LoB), PE anti-fragmentation rules. India ratified MLI in 2019; applies to covered tax agreements.