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Case lawCBDT Circulars & Instructions › 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
CBDT Circulars & InstructionsCuts both waysValidity unconfirmeds.90(4)s.90(5)s.90A(4)s.90A(5)Rule 21ABs.90s.90A

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

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?

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.

Validity check could not be completed. Validity check could not be completed and the label is deliberately conservative. Rule 21AB was read from the Department's own rule page, which carries an upload date of 13 December 2025 but NO 'Year:' stamp and NO amendment footnotes, so it cannot be shown from that page alone that the rule has not been amended since. The text of s.90(4) and s.90(5) is taken from two judgments reproducing it, the later of them dated 19 October 2023; no amendment to either sub-section after that date was searched for, because the Department's own s.90 page is an archived 2009 version that does not carry the sub-sections at all. A later pass should locate the CURRENT departmental page for s.90 — the numeric suffix could not be derived and the site's section index is script-driven and did not yield the link on this pass — and confirm both the present text and the amending footnotes. The s.90A page has the identical defect and is likewise archived at Year: 2009, so the same search is needed for both sections. The related administrative requirements for filing Form 10F electronically are governed by DGIT (Systems) notifications, which this entry does not state.

Why it 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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