How does section 195, TDS under a DTAA on Indian payments work in practice?

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Answer

The rate comes from the Act or the treaty, whichever is more favourable, and the treaty rate requires the recipient's residency certificate and declaration. The mechanism is the answer; the paperwork is what makes the mechanism available.

How it works in practice

The rate comes from the Act or the treaty, whichever is more favourable, and the treaty rate requires the recipient's residency certificate and declaration. The remittance also needs the declaration and, in most cases, an accountant's certificate before the bank moves the money.

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When it does not bind you

India puts the duty to determine taxability of a foreign payment on the Indian payer, who is liable for the tax if the determination is wrong.

How does section 195, TDS under a DTAA on Indian payments work in practice?
ItemAmount
Income taxed in both countriesC$117,000
Tax paid abroad (assumed 20%)C$23,400
Home tax on the same income (assumed 35%)C$40,950
Credit available (lesser of the two)C$23,400
Home tax still payableC$17,550

The credit absorbs C$23,400 and leaves C$17,550 payable at home, because the home rate on this income is the higher of the two. The balance is real cash and it is due on the home timetable, which is why instalments get raised in the first meeting.

These amounts illustrate the mechanism only. The rates and thresholds are assumptions of the example, not your numbers: each is checked against the issuing authority for your specific tax year before any return is filed.

Where to go from here

The full treatment — who it binds, the deadline, the penalty and the fixed fee — is on Section 195 — TDS under a DTAA on Indian payments. If that describes your position, the next step is a short call — not a form.

Reviewed for the 2025 and 2026 filing seasons by Udit Gupta, Cross-Border Tax Expert, Legal Quotient Consultants. General information, not advice for your circumstances — call our 24-hour helpline to discuss your own position.

International tax practice — what this page covers

People reach this page searching for international tax practice. It is covered here as it applies to Section 195 — who it applies to, what has to be filed, and what it costs, at a fixed fee agreed before the work starts.

Files that look like this one

Case study 1

A flat purchase where the buyer was the payer and did not know

An individual buying a property from an NRI seller had agreed a price and a payment schedule with no mention of deduction at source. The seller expected the full amount. We set out the buyer's position as the payer who carries the duty to determine taxability, characterised the payment, and established the rate by comparing the Act with the treaty the seller could rely on, then assembled the seller's residency documentation and declaration. The engagement produced a documented determination, a deduction the buyer could defend, and an amended payment schedule both sides signed before completion rather than after.

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Case study 2

Determining taxability before a software licence remittance

An Indian company was about to remit a licence fee abroad and had been told by the supplier that no Indian tax applied. The determination was the company's to make and its liability if wrong. We examined the character of the payment against the treaty article the supplier was relying on, and against the rate the Act would impose if the article did not reach it. The engagement produced a written determination with the documents indexed behind it, the deduction applied on that basis, and the remittance paperwork the bank required, prepared in that order.

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Case study 3

Collecting residency documentation before the invoice fell due

A recurring payment to a treaty-resident service provider had been deducted at the higher rate for several remittances, purely because the recipient's residency certificate and declaration never arrived before the bank cut-off. Nothing was wrong with the position. We moved the document request into the contracting stage, set the renewal cycle against the certificate's validity, and prepared the standing file the accountant's certificate is drawn from. The engagement produced the treaty rate on the next remittance, and a process that does not depend on chasing documents in the week a payment is due.

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Case study 4

Rebuilding a determination the assessing officer had questioned

A company had remitted fees abroad on the view that the treaty prevented Indian taxation, and the basis for that view existed only in an email. When the determination was questioned, the exposure was the payer's own liability plus disallowance of the expenditure. We reconstructed the analysis properly, covering the character of the payment, the article, the rate comparison with the Act and the recipient's documentation, and presented it as a single position. The engagement produced that position paper and a template the finance team now completes before any remittance, so the determination exists in writing on the day it is made.

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Case study 5

One remittance process built for a company paying several countries

Payments abroad were handled by whoever raised them, so the rate, the documents and the accountant's certificate were assembled differently each time and sometimes not at all. We set out a single sequence. Characterise the payment, compare the Act rate with the treaty rate for that character, obtain the recipient's residency certificate and declaration, then the declaration and certificate the remittance needs, and only then instruct the bank. The engagement produced the written procedure, a checklist per recipient country, and a file for each recurring payee, which is what makes a later question answerable.

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Case study 6

A nil determination declined and the deduction that followed

The client wanted a nil determination on a payment abroad and the facts did not support one. The article relied on did not cover the character of the payment, and the recipient's documentation was incomplete. We explained that the determination is the payer's and the liability follows it, and advised deduction at the rate the comparison produced. The engagement produced a documented determination supporting the deduction, and a note of what would have to change, in the contract and in the recipient's paperwork, before a different conclusion could be reached on the next remittance.

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Case study 7

An Indian Company Paying a Foreign Supplier

Payments abroad carry deduction at source and a certification filed before the money moves. Whether the treaty reduces the rate depends on what is being bought, and the classification is the decision the whole filing rests on.

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Case study 8

Indian Rent Collected While Resident Somewhere Else

Rent from Indian property is taxed in India and again where you live, with relief on one side only. The file gets the Indian deduction right first, then claims the credit on the home return against what was actually paid.

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Questions that come up on Section 195 — TDS under a DTAA on Indian payments

I am buying a flat from an NRI, must I deduct tax?

Almost certainly. Any Indian payer remitting a sum chargeable to tax to a non-resident falls within section 195, and that includes an individual buying property from an NRI seller. Buyers are usually startled by this, because nothing about a domestic purchase prepares them for it. The duty to determine whether the payment is chargeable sits on you as payer, and if the determination is wrong the liability is yours, not the seller's. In practice this needs settling before the sale agreement is signed, because the seller's cash expectation and the deduction have to be reconciled somewhere.

Who is liable if the wrong rate is deducted on a payment abroad?

The payer. India puts the duty to determine the taxability of a foreign payment on the Indian payer, who is liable for the tax if the determination is wrong, and who can also face disallowance of the expenditure. That combination is what makes section 195 different from a routine deduction. You are being asked to reach a conclusion about someone else's tax position, and you carry the consequence of getting it wrong. It is why the determination should be written down at the time, with the treaty article, the rate and the documents relied on set out, rather than assumed.

Can I apply the treaty rate without a residency certificate?

Not safely. The rate comes from the Act or the treaty, whichever is more favourable, but the treaty rate depends on the recipient's residency certificate and declaration being in hand. Without them the payer has no basis for the lower rate, and since the payer carries the liability, the payer is the one exposed if it is applied anyway. Recipients often supply the certificate late, after the invoice is due and the remittance is being pressed. Asking for it when the contract is signed, rather than when the payment is ready to go, avoids deducting at the higher rate for timing reasons alone.

Why will my bank not remit the payment without a certificate?

Because the remittance route itself requires documentation, separately from the deduction. Alongside the payer's declaration, most remittances need an accountant's certificate before the bank will move the money, and a bank with an incomplete file will simply hold the transfer. This catches people who have the tax question right and have left the paperwork until the day of payment. The sequence that works is the reverse. Settle the characterisation and the rate, collect the recipient's residency certificate and declaration, obtain the certificate the remittance needs, and then instruct the bank.

Is the treaty rate always better than the rate in the Act?

Not always, which is why the comparison has to be made rather than assumed. The rate comes from the Act or the treaty, whichever is more favourable, so for some payments the domestic rate is already the lower of the two and the treaty adds nothing but paperwork. Where the treaty does help, it helps only if the recipient's residency certificate and declaration support the claim. The work is the same either way. Characterise the payment, compare the two rates for that character of income, and record which one you applied and why.

What if we decide a payment abroad is not taxable and are wrong?

That is the risk the section is built around. The duty to determine taxability sits with the payer, so a determination that a remittance is not chargeable is your conclusion, and if it does not hold, the tax becomes your liability, with disallowance of the expenditure alongside it. A nil or reduced determination is defensible when it rests on the treaty article, the character of the payment and the recipient's documentation, all recorded at the time. It is not defensible as a view formed at the point of payment because the recipient said tax did not apply.

Do I have to declare my dual citizenship?

A tax return does not generally ask you to declare which passports you hold; it asks about residence, and in the US case it applies to citizens by definition. What does ask is your bank. Account-opening self-certification under FATCA and the Common Reporting Standard asks which countries you are a tax resident or citizen of, and the answer is reported onward to the tax authority. So the practical answer is that the information arrives either way. See FATCA reporting.

Is my foreign pension taxable?

Usually in at least one country, and which one depends on the treaty article covering pensions — some give the taxing right to the country paying it, others to where you live, and several treat government service pensions differently again. Withholding at source is common and often reducible by treaty, with an elective return recovering an over-deduction. See the pensions article.

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