What exactly does a non-resident have to hold and file before he can claim a treaty benefit, and can he ask the Indian Assessing Officer for a residence certificate?
A non-resident to whom a treaty applies is NOT entitled to claim any relief under it unless he obtains a certificate of his being a resident from the Government of the country or specified territory of residence — that is s.90(4), and s.90A(4) is its mirror for an agreement with a specified association. Section 90(5) requires him also to provide such other documents and information as may be prescribed, and Rule 21AB(1) prescribes five particulars to be furnished in Form No. 10F. The Indian Assessing Officer cannot supply a residence certificate to him: Rule 21AB(3) and (4) give the Form 10FA application and the Form 10FB certificate only to an assessee 'being a resident in India'.
Decided by the CBDT Circulars & Instructions (Not applicable — statutory text) on 2013-04-01, reported as Income-tax Rules 1962, Rule 21AB, as printed on the Income-tax Department's rule page (upload date 13 December 2025); Income-tax Act 1961, ss.90(4), 90(5), 90A(4) and 90A(5), text as reproduced in Assessing Officer Circle (International Taxation) 2(2)(2) New Delhi v. Nestle SA (Supreme Court, 19 October 2023) and in Kenneth Malcolm Holland v. DCIT (Punjab and Haryana High Court, 14 December 2021). The provisions govern the claiming of relief under any of India's Double Taxation Avoidance Agreements — the treaty and its Article are whatever the assessee relies on; the gate is the same for all of them.. It bears on section 90(4), section 90(5), section 90A(4), section 90A(5), section Rule 21AB, section 90, section 90A of the Income Tax Act 1961, in Residence & Treaty Benefit, How Tax Law Is Read and TDS Defaults matters.
Three things are commonly got wrong here and each of them loses the relief rather than merely delaying it. First, the sequence. Section 90(4) is worded as a bar on entitlement — 'shall not be entitled to claim any relief under such agreement unless' — so the certificate is a condition of the claim and not a document to be produced when asked. Second, the direction of travel. Rule 21AB(3) exists so that an INDIAN resident can get an Indian certificate for use in the other country; a non-resident who wants Indian treaty relief must get his certificate from his own government, and an application by him to the Indian Assessing Officer is misconceived. Third, the interaction of the TRC with Form 10F. Rule 21AB(2) dispenses with any particular in Form 10F that is already contained in the s.90(4) or s.90A(4) certificate, so where a foreign TRC carries the status, the tax identification number, the period and the address, the corresponding entries need not be repeated — but where, as with many countries' certificates, it does not, Form 10F must supply them. Rule 21AB(2A) then imposes a standing obligation to keep and maintain the documents substantiating what was stated in Form 10F, which an income-tax authority may call for in relation to any claim of relief under s.90(1) or s.90A(1). That sub-rule is the reason a treaty file must be built at the time of the payment and not at the time of the notice. Note what this entry does NOT decide: whether a valid TRC by itself concludes the questions of residence and beneficial ownership against the Revenue is genuinely contested and is the subject of separate decisions in this library, and the electronic filing of Form 10F on the e-filing portal, and the relaxations granted for filers without a PAN, are administrative matters governed by notifications of the DGIT (Systems) and not by the rule text set out here.
Binding on the department, not on the assessee or the courts. An assessee may rely on a circular that is beneficial to them.
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Not a case. The provisions apply to any assessee, not being a resident, who claims relief under an agreement referred to in s.90(1), and correspondingly to an assessee claiming relief under an agreement referred to in s.90A(1) with a specified association in a specified territory. They apply whatever the treaty and whatever the Article relied on — Article 5 and Article 7 in a permanent establishment dispute, Article 10, 11 or 12 in a withholding dispute, Article 13 in a capital gains dispute — because the certificate requirement attaches to the CLAIM to relief under the agreement and not to any particular Article of it. Rule 21AB also provides, in sub-rules (3) and (4), the converse machinery by which an assessee who IS resident in India obtains an Indian certificate of residence for the purposes of an agreement referred to in s.90 or s.90A.
Statutory position — no holding is asserted; this entry reproduces statutory and rule text. Section 90(4): an assessee, not being a resident, to whom an agreement referred to in sub-section (1) applies, shall not be entitled to claim any relief under such agreement unless a certificate of his being a resident in any country outside India or specified territory outside India, as the case may be, is obtained by him from the Government of that country or specified territory. Section 90(5): the assessee referred to in sub-section (4) shall also provide such other documents and information, as may be prescribed. Rule 21AB(1): subject to sub-rule (2), for the purposes of s.90(5) and s.90A(5) the following information shall be provided by an assessee in Form No. 10F — (i) status (individual, company, firm, etc.) of the assessee; (ii) nationality (in the case of an individual) or country or specified territory of incorporation or registration (in the case of others); (iii) the assessee's tax identification number in the country or specified territory of residence and, if there is no such number, a unique number on the basis of which the person is identified by the Government of that country or specified territory; (iv) the period for which the residential status as mentioned in the certificate referred to in s.90(4) or s.90A(4) is applicable; and (v) the address of the assessee in the country or specified territory outside India during the period for which that certificate is applicable. Rule 21AB(2): the assessee may not be required to provide the information or any part of it if that information or part is contained in the certificate referred to in s.90(4) or s.90A(4). Rule 21AB(2A): the assessee shall keep and maintain such documents as are necessary to substantiate the information provided under sub-rule (1), and an income-tax authority may require the assessee to provide those documents in relation to a claim by that assessee of any relief under an agreement referred to in s.90(1) or s.90A(1). Rule 21AB(3): an assessee, being a resident in India, shall, for obtaining a certificate of residence for the purposes of an agreement referred to in s.90 and s.90A, make an application in Form No. 10FA to the Assessing Officer. Rule 21AB(4): the Assessing Officer, on receipt of such an application and being satisfied in this behalf, shall issue a certificate of residence in respect of the assessee in Form No. 10FB.
Not a judicial route. The legislative technique is to convert what had been a question of proof into a condition of entitlement. Before s.90(4), residence in the other contracting state was an ordinary question of fact on which any admissible evidence could be led, and treaty relief could be claimed and then defended on the material available. Section 90(4) removes that latitude by making the foreign government's own certificate the gateway, so that the Indian authority is not required to adjudicate foreign residence in the first instance. Section 90(5) then closes the gap that a bare certificate leaves — many foreign certificates say only that the holder is a resident, without the identifiers an Indian officer needs to match the claimant to the claim — by taking power to prescribe further information, which Rule 21AB(1) supplies as the five Form 10F particulars. Sub-rule (2) avoids duplication where the foreign certificate already carries a particular, and sub-rule (2A) shifts the evidentiary burden forward in time by requiring the substantiating documents to be kept from the outset. Sub-rules (3) and (4) are the reciprocal limb: India issues its own certificates, in Form 10FB on an application in Form 10FA, but only to a person who is resident in India, because that is the only residence India is in a position to certify.
Subject to the provisions of sub-rule (2), for the purposes of sub-section (5) of section 90 and sub-section (5) of section 90A, the following information shall be provided by an assessee in Form No. 10F, namely:—
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Handle my notice → Ask a CA on WhatsAppA non-resident to whom a treaty applies is NOT entitled to claim any relief under it unless he obtains a certificate of his being a resident from the Government of the country or specified territory of residence — that is s.90(4), and s.90A(4) is its mirror for an agreement with a specified association. Section 90(5) requires him also to provide such other documents and information as may be prescribed, and Rule 21AB(1) prescribes five particulars to be furnished in Form No. 10F. The Indian Assessing Officer cannot supply a residence certificate to him: Rule 21AB(3) and (4) give the Form 10FA application and the Form 10FB certificate only to an assessee 'being a resident in India'. This was decided by the CBDT Circulars & Instructions (Not applicable — statutory text) and bears on section 90(4), section 90(5), section 90A(4), section 90A(5), section Rule 21AB, section 90, section 90A of the Income Tax Act 1961. It is reported as Income-tax Rules 1962, Rule 21AB, as printed on the Income-tax Department's rule page (upload date 13 December 2025); Income-tax Act 1961, ss.90(4), 90(5), 90A(4) and 90A(5), text as reproduced in Assessing Officer Circle (International Taxation) 2(2)(2) New Delhi v. Nestle SA (Supreme Court, 19 October 2023) and in Kenneth Malcolm Holland v. DCIT (Punjab and Haryana High Court, 14 December 2021). The provisions govern the claiming of relief under any of India's Double Taxation Avoidance Agreements — the treaty and its Article are whatever the assessee relies on; the gate is the same for all of them.. Three things are commonly got wrong here and each of them loses the relief rather than merely delaying it. First, the sequence. Section 90(4) is worded as a bar on entitlement — 'shall not be entitled to claim any relief under such agreement unless' — so the certificate is a condition of the claim and not a document to be produced when asked. Second, the direction of travel. Rule 21AB(3) exists so that an INDIAN resident can get an Indian certificate for use in the other country; a non-resident who wants Indian treaty relief must get his certificate from his own government, and an application by him to the Indian Assessing Officer is misconceived. Third, the interaction of the TRC with Form 10F. Rule 21AB(2) dispenses with any particular in Form 10F that is already contained in the s.90(4) or s.90A(4) certificate, so where a foreign TRC carries the status, the tax identification number, the period and the address, the corresponding entries need not be repeated — but where, as with many countries' certificates, it does not, Form 10F must supply them. Rule 21AB(2A) then imposes a standing obligation to keep and maintain the documents substantiating what was stated in Form 10F, which an income-tax authority may call for in relation to any claim of relief under s.90(1) or s.90A(1). That sub-rule is the reason a treaty file must be built at the time of the payment and not at the time of the notice. Note what this entry does NOT decide: whether a valid TRC by itself concludes the questions of residence and beneficial ownership against the Revenue is genuinely contested and is the subject of separate decisions in this library, and the electronic filing of Form 10F on the e-filing portal, and the relaxations granted for filers without a PAN, are administrative matters governed by notifications of the DGIT (Systems) and not by the rule text set out here. If it applies to you, the first step is this: Obtain the residence certificate from the foreign government BEFORE the income is paid or the return is filed; s.90(4) bars the claim, it does not merely postpone it.
Not a case. The provisions apply to any assessee, not being a resident, who claims relief under an agreement referred to in s.90(1), and correspondingly to an assessee claiming relief under an agreement referred to in s.90A(1) with a specified association in a specified territory. They apply whatever the treaty and whatever the Article relied on — Article 5 and Article 7 in a permanent establishment dispute, Article 10, 11 or 12 in a withholding dispute, Article 13 in a capital gains dispute — because the certificate requirement attaches to the CLAIM to relief under the agreement and not to any particular Article of it. Rule 21AB also provides, in sub-rules (3) and (4), the converse machinery by which an assessee who IS resident in India obtains an Indian certificate of residence for the purposes of an agreement referred to in s.90 or s.90A. The matter was decided on 2013-04-01 by the CBDT Circulars & Instructions (Not applicable — statutory text). On those facts the CBDT Circulars & Instructions held as follows. Statutory position — no holding is asserted; this entry reproduces statutory and rule text. Section 90(4): an assessee, not being a resident, to whom an agreement referred to in sub-section (1) applies, shall not be entitled to claim any relief under such agreement unless a certificate of his being a resident in any country outside India or specified territory outside India, as the case may be, is obtained by him from the Government of that country or specified territory. Section 90(5): the assessee referred to in sub-section (4) shall also provide such other documents and information, as may be prescribed. Rule 21AB(1): subject to sub-rule (2), for the purposes of s.90(5) and s.90A(5) the following information shall be provided by an assessee in Form No. 10F — (i) status (individual, company, firm, etc.) of the assessee; (ii) nationality (in the case of an individual) or country or specified territory of incorporation or registration (in the case of others); (iii) the assessee's tax identification number in the country or specified territory of residence and, if there is no such number, a unique number on the basis of which the person is identified by the Government of that country or specified territory; (iv) the period for which the residential status as mentioned in the certificate referred to in s.90(4) or s.90A(4) is applicable; and (v) the address of the assessee in the country or specified territory outside India during the period for which that certificate is applicable. Rule 21AB(2): the assessee may not be required to provide the information or any part of it if that information or part is contained in the certificate referred to in s.90(4) or s.90A(4). Rule 21AB(2A): the assessee shall keep and maintain such documents as are necessary to substantiate the information provided under sub-rule (1), and an income-tax authority may require the assessee to provide those documents in relation to a claim by that assessee of any relief under an agreement referred to in s.90(1) or s.90A(1). Rule 21AB(3): an assessee, being a resident in India, shall, for obtaining a certificate of residence for the purposes of an agreement referred to in s.90 and s.90A, make an application in Form No. 10FA to the Assessing Officer. Rule 21AB(4): the Assessing Officer, on receipt of such an application and being satisfied in this behalf, shall issue a certificate of residence in respect of the assessee in Form No. 10FB.
Not a judicial route. The legislative technique is to convert what had been a question of proof into a condition of entitlement. Before s.90(4), residence in the other contracting state was an ordinary question of fact on which any admissible evidence could be led, and treaty relief could be claimed and then defended on the material available. Section 90(4) removes that latitude by making the foreign government's own certificate the gateway, so that the Indian authority is not required to adjudicate foreign residence in the first instance. Section 90(5) then closes the gap that a bare certificate leaves — many foreign certificates say only that the holder is a resident, without the identifiers an Indian officer needs to match the claimant to the claim — by taking power to prescribe further information, which Rule 21AB(1) supplies as the five Form 10F particulars. Sub-rule (2) avoids duplication where the foreign certificate already carries a particular, and sub-rule (2A) shifts the evidentiary burden forward in time by requiring the substantiating documents to be kept from the outset. Sub-rules (3) and (4) are the reciprocal limb: India issues its own certificates, in Form 10FB on an application in Form 10FA, but only to a person who is resident in India, because that is the only residence India is in a position to certify. In the words reproduced by the source cited on this page: "Subject to the provisions of sub-rule (2), for the purposes of sub-section (5) of section 90 and sub-section (5) of section 90A, the following information shall be provided by an assessee in Form No. 10F, namely:—"
It was decided by the CBDT Circulars & Instructions on 2013-04-01 and is reported as Income-tax Rules 1962, Rule 21AB, as printed on the Income-tax Department's rule page (upload date 13 December 2025); Income-tax Act 1961, ss.90(4), 90(5), 90A(4) and 90A(5), text as reproduced in Assessing Officer Circle (International Taxation) 2(2)(2) New Delhi v. Nestle SA (Supreme Court, 19 October 2023) and in Kenneth Malcolm Holland v. DCIT (Punjab and Haryana High Court, 14 December 2021). The provisions govern the claiming of relief under any of India's Double Taxation Avoidance Agreements — the treaty and its Article are whatever the assessee relies on; the gate is the same for all of them.. Binding on the department, not on the assessee or the courts. An assessee may rely on a circular that is beneficial to them. A CBDT circular or instruction binds officers of the department but not the assessee and not the courts. Where a circular helps you, you may hold the department to it. Where it hurts you, it cannot override the Act or a judgment. On section 90(4), section 90(5), section 90A(4), section 90A(5), section Rule 21AB, section 90, section 90A, the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It cuts both ways and is cited by both sides. Statutory position — no holding is asserted; this entry reproduces statutory and rule text. Section 90(4): an assessee, not being a resident, to whom an agreement referred to in sub-section (1) applies, shall not be entitled to claim any relief under such agreement unless a certificate of his being a resident in any country outside India or specified territory outside India, as the case may be, is obtained by him from the Government of that country or specified territory. Section 90(5): the assessee referred to in sub-section (4) shall also provide such other documents and information, as may be prescribed. Rule 21AB(1): subject to sub-rule (2), for the purposes of s.90(5) and s.90A(5) the following information shall be provided by an assessee in Form No. 10F — (i) status (individual, company, firm, etc.) of the assessee; (ii) nationality (in the case of an individual) or country or specified territory of incorporation or registration (in the case of others); (iii) the assessee's tax identification number in the country or specified territory of residence and, if there is no such number, a unique number on the basis of which the person is identified by the Government of that country or specified territory; (iv) the period for which the residential status as mentioned in the certificate referred to in s.90(4) or s.90A(4) is applicable; and (v) the address of the assessee in the country or specified territory outside India during the period for which that certificate is applicable. Rule 21AB(2): the assessee may not be required to provide the information or any part of it if that information or part is contained in the certificate referred to in s.90(4) or s.90A(4). Rule 21AB(2A): the assessee shall keep and maintain such documents as are necessary to substantiate the information provided under sub-rule (1), and an income-tax authority may require the assessee to provide those documents in relation to a claim by that assessee of any relief under an agreement referred to in s.90(1) or s.90A(1). Rule 21AB(3): an assessee, being a resident in India, shall, for obtaining a certificate of residence for the purposes of an agreement referred to in s.90 and s.90A, make an application in Form No. 10FA to the Assessing Officer. Rule 21AB(4): the Assessing Officer, on receipt of such an application and being satisfied in this behalf, shall issue a certificate of residence in respect of the assessee in Form No. 10FB. It arises in Residence & Treaty Benefit, How Tax Law Is Read and TDS Defaults matters, on section 90(4), section 90(5), section 90A(4), section 90A(5), section Rule 21AB, section 90, section 90A of the Income Tax Act 1961, and was decided by Not applicable — statutory text. Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. Read the foreign certificate against the five particulars in Rule 21AB(1) — status; nationality or country of incorporation or registration; tax identification number in the country of residence, or the unique identifying number if there is none; the period for which the residential status in the certificate applies; and the address in the country of residence during that period — and supply in Form 10F only what the certificate does not already contain, which is what Rule 21AB(2) permits. Build and retain, at the time of the payment, the documents that substantiate each of those particulars; Rule 21AB(2A) makes keeping them a standing obligation and an income-tax authority can call for them later. Never file a Form 10FA application to the Indian Assessing Officer for a non-resident client; Rule 21AB(3) confines that route to 'an assessee, being a resident in India', and the refusal that follows is a matter of the rule and not of discretion. For a RESIDENT Indian client who needs to prove Indian residence to a foreign tax authority, do use Rule 21AB(3): apply in Form No. 10FA to the Assessing Officer, who issues the certificate in Form No. 10FB under sub-rule (4). Where the agreement relied on is one with a specified association rather than a country, work from s.90A(4) and s.90A(5), which Rule 21AB addresses in the same breath as s.90(4) and s.90(5). Check separately, for the year in question, the mode and timing of filing Form 10F, which is governed by notifications of the DGIT (Systems) and has changed more than once; the rule tells you what must be furnished, not how it must be filed.
Still good law. Rule 21AB stands as the entry states it: sub-rule (1) lists the Form 10F particulars for s.90(5)/90A(5), and sub-rule (2) excuses the assessee from giving any particular already contained in the s.90(4)/90A(4) certificate. The rule has been amended once. Sub-rules (1) and (2) are in their substituted form, sub-rule (2A) (the obligation to keep documents substantiating the Form 10F information, producible on demand by an income-tax authority) was inserted, and Form 10F itself was inserted in Appendix II, by the Income-tax (11th Amendment) Rules, 2013 - Notification No. 57/2013, S.O. 2331(E), dated 1 August 2013, with effect from 1 April 2013. No footnote block accompanies the rule, so that history is taken from the notification itself. No later notification amending the rule is recorded. What has changed since is the manner of furnishing, not the rule. No source could be cited for that finding. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
This is a statutory entry, not a decision, and the decided_on date is the date from which s.90(4) and s.90(5) in their present form operate, not a decision date. PROVENANCE, stated fully because it is imperfect. Rule 21AB is set out verbatim from the Department's own text of the rule, which carries no year of currency and no amendment footnote, so the rule's own amendment history cannot be established from it. The text of s.90(4) and s.90(5) could NOT be taken from a consolidated text of section 90: the copies available print only sub-sections (1) to (3) with two Explanations and carry no sub-section (2A), (4) or (5) at all, so they are superseded and must not be used. The current text of s.90(4) and s.90(5) reproduced in this entry is therefore taken from judgments reproducing it after the amendment: the Supreme Court's judgment in Assessing Officer Circle (International Taxation) 2(2)(2) New Delhi v. Nestle SA, 19 October 2023, and the Punjab and Haryana High Court's judgment in Kenneth Malcolm Holland v. DCIT, 14 December 2021, which sets out the whole of s.90 at its paragraph 11 including sub-sections (2A), (4) and (5) and Explanations 1 to 4. The Holland judgment reproduces Explanation 4 under a commentary-style rubric ('Following Explanation 4 shall be inserted... by the Finance Act, 2017, w.e.f. 1-4.2018'), which indicates the source it was copied from and is noted rather than relied on. The commencement dates of s.90(4) and s.90(5) are NOT verified here against any footnote to the section, and no commencement date is asserted in the body of the entry, which states the present position without reference to an assessment year. The decided_on value of 1 April 2013 is carried on the understanding that s.90(4) was inserted by the Finance Act 2012 and that both sub-sections took their present form from 1 April 2013; that date is itself UNVERIFIED and should be established from the Finance Act 2012 and Finance Act 2013 texts before it is relied on. The available copies of s.90A have the same defect — they print only sub-sections (1) to (3) with two Explanations and carry no sub-section (4) or (5) — so the text of s.90A(4) and s.90A(5) is NOT set out here from any source, and the statement that s.90A(4) mirrors s.90(4) is not text-verified. Nothing in this entry states a position under the Income-tax Act 2025. And this entry deliberately carries NO treaty Article tag and names no country pair, because it construes no Article of any treaty: s.90(4) is the gate in front of every Article of every Indian DTAA, as the facts field states. This library shows the verification state of every entry openly. This entry has not yet been read in full by a chartered accountant. The summary reflects the sources listed on this page. Read the source before you rely on it in a reply to an Assessing Officer or in an appeal before the Commissioner (Appeals) or the Income Tax Appellate Tribunal.
Statutory position — no holding is asserted; this entry reproduces statutory and rule text. Section 90(4): an assessee, not being a resident, to whom an agreement referred to in sub-section (1) applies, shall not be entitled to claim any relief under such agreement unless a certificate of his being a resident in any country outside India or specified territory outside India, as the case may be, is obtained by him from the Government of that country or specified territory. Section 90(5): the assessee referred to in sub-section (4) shall also provide such other documents and information, as may be prescribed. Rule 21AB(1): subject to sub-rule (2), for the purposes of s.90(5) and s.90A(5) the following information shall be provided by an assessee in Form No. 10F — (i) status (individual, company, firm, etc.) of the assessee; (ii) nationality (in the case of an individual) or country or specified territory of incorporation or registration (in the case of others); (iii) the assessee's tax identification number in the country or specified territory of residence and, if there is no such number, a unique number on the basis of which the person is identified by the Government of that country or specified territory; (iv) the period for which the residential status as mentioned in the certificate referred to in s.90(4) or s.90A(4) is applicable; and (v) the address of the assessee in the country or specified territory outside India during the period for which that certificate is applicable. Rule 21AB(2): the assessee may not be required to provide the information or any part of it if that information or part is contained in the certificate referred to in s.90(4) or s.90A(4). Rule 21AB(2A): the assessee shall keep and maintain such documents as are necessary to substantiate the information provided under sub-rule (1), and an income-tax authority may require the assessee to provide those documents in relation to a claim by that assessee of any relief under an agreement referred to in s.90(1) or s.90A(1). Rule 21AB(3): an assessee, being a resident in India, shall, for obtaining a certificate of residence for the purposes of an agreement referred to in s.90 and s.90A, make an application in Form No. 10FA to the Assessing Officer. Rule 21AB(4): the Assessing Officer, on receipt of such an application and being satisfied in this behalf, shall issue a certificate of residence in respect of the assessee in Form No. 10FB.
TaxSphere, “Statutory position — s.90(4), s.90(5) and Rule 21AB: the TRC and Form 10F a non-resident must have before any treaty relief, and the Form 10FA route that is closed to him”, https://taxnotice.vittsphere.com/caselaw/case/statutory-position-section-90-4-90-5-rule-21ab-trc-and-form-10f/ (validity last checked 2026-09-08)
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