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Electronic Form 10F Filing for Non-Residents Without PAN

Treaty Documentation Without PAN: Form 10F and Its Successor Form 41

Choose the correct treaty-information form, obtain a tax residency certificate, and use the non-PAN e-Filing route when eligible. Four examples distinguish treaty eligibility from withholding and remittance compliance.

By Team assureOffice6 min read

Reviewed by CA Naveen Saraswat · Chartered Accountant | 5+ years in corporate audit & tax compliance | Ex-Big4

Director signs important corporate documents

Choose the form for the tax period

Treaty documentation supports a claim under the applicable agreement; it does not establish a tax rate on its own. Obtain a tax residency certificate (TRC) issued by the relevant foreign government for the relevant period, determine the legal character of the payment and check the treaty conditions. These can include residence, beneficial ownership, permanent establishment (PE), attribution, limitation of benefits and other treaty anti-abuse rules.

PeriodRequirements
Legacy period under the Income-tax Act, 1961Sections 90(4)–(5) or 90A(4)–(5) and rule 21AB apply. The five prescribed particulars are status; nationality or country or specified territory of incorporation or registration; the foreign tax ID or prescribed alternative unique ID; the residency period; and foreign address. Rule 21AB(2) does not require the information to be furnished again to the extent it is already in the TRC. Use Form 10F for the remaining particulars. Keep supporting records.
Tax years starting from 1 April 2026 under the Income-tax Act, 2025Apply section 159(8) and rule 75 of the 2026 Rules. Form 41 is the prescribed form for the other documents and information supporting treaty relief. Keep the TRC and supporting records. Rule 75 does not reproduce the old rule 21AB(2) wording, so do not simply carry over the old waiver.

For example, FY 2024–25 relates to AY 2025–26 under the 1961 Act; tax year 2026–27 uses the new framework. Select the form by the applicable legal period and the savings rules, rather than by the calendar date on which the form is uploaded.

Electronic filing and PAN are separate questions

DGIT (Systems) Notification 3/2022 dated 16 July 2022 listed Form 10F for electronic filing. An initial relaxation for non-residents who did not have PAN and were not required to have it ran through 31 March 2023; the order dated 28 March 2023 extended that relief through 30 September 2023. That extension was not a launch notification for a portal facility. A manual form cannot be relied on under that expired relaxation where electronic Form 10F is required.

Check whether the recipient has PAN or must obtain one independently. Legacy rule 37BC relaxes section 206AA higher withholding for specified interest, royalty, technical fees, dividends or capital asset transfer payments to an eligible non-resident without PAN, if the required documents are given to the deductor. Provide name, email, contact number, foreign address, residence certificate where the foreign law provides for issuance, and foreign tax ID or the prescribed government-issued alternative. For the newer periods check section 397(2) and rule 217, including the distinct rule 217(3) treatment for a person not required to apply for PAN under section 262 and the relevant rules. The withholding relaxation is not a general exemption from PAN registration and does not replace a treaty TRC requirement.

Use the appropriate e-Filing login

  1. If the non-resident has PAN, use the corresponding account. If it does not hold PAN and is not required to hold it, use the specific non-resident registration route and the issued non-resident user ID. Use the real government-issued tax identifier or permitted alternative where the portal requests it, and verify the authorised signatory and contact information.
  2. In the e-Filing account, open the income tax forms service, select the applicable Act and the available Form 10F or Form 41, and select the correct period. Complete the prescribed particulars, verify the residency dates and provide the certificate or evidence as requested.
  3. Review the submission and use the verification method the portal offers and the law permits for that user. Retain the verified form, acknowledgement, TRC and supporting analysis. Portal methods, file limits and acknowledgement formats can change; use the current manual and on-screen directions.
  4. Share the supporting documentation with the Indian payer. The payer separately determines chargeability, withholding, any necessary remittance information or certificate and the authorised dealer's documentary checks. Forms 15CA and 15CB are the legacy names and do not both apply to every payment; use the applicable provisions and form for the period.

Four worked legacy-period scenarios

  1. US software subscription: An Indian company pays USD 180,000. At an assumed ₹83 per USD the gross amount is ₹1,49,40,000. A purely illustrative domestic section 115A calculation, if the payment qualifies as royalty and the rate components are 20% base, 2% surcharge and 4% cess, is 21.216%, or ₹31,69,670.40 before rounding. The surcharge assumption requires the applicable total-income band and period. Engineering Analysis addresses the copyright rights in the agreements considered; it is not a blanket rule for cloud services. If on the actual facts the US vendor is treaty-eligible, the payment is neither royalty nor fees for included services under the treaty, and the profits are not attributable to an Indian PE, article 7 may yield nil Indian withholding. A TRC, Form 10F where required and a documented contract and PE analysis support that conclusion.
  2. Italian engineering service: EUR 80,000 at ₹90 equals ₹72 lakh. Assume a qualifying beneficial owner and technical fees covered by article 13(2) of the operative India–Italy text, without an applicable PE exception or other rate relief. Its published treaty ceiling is 20%, or ₹14.40 lakh. The 2006 announcement of a signed protocol proposing 10% is not by itself proof of operative rate relief. On a historical section 115A comparison with 20% base, no surcharge and 4% cess, the domestic amount is ₹14,97,600; the arithmetic difference is ₹57,600. Check the actual rate, documents, phone and other rule 37BC particulars, and supply missing TRC information through Form 10F if required.
  3. Singapore advisory and software: USD 60,000 at an assumed ₹83 gives ₹49.80 lakh. Check that the particular entity or partners qualify for treaty residence and benefits; a registration number and absence of Indian premises are insufficient. Determine whether the fee falls under article 12 and examine the entire article 5 PE test. If a treaty-eligible recipient's payment is business profits outside article 12 and it has no Indian PE, the conditional article 7 withholding is nil. Match the certificate's stated dates to the transaction, rather than equating a foreign year-of-assessment label to the Indian financial year.
  4. German technical service and a missing electronic form: In November 2023 a payer remits ₹85 lakh and withholds ₹8.50 lakh, assuming the recipient qualifies for the 10% article 12 ceiling. The TRC is present but required supplemental information was supplied only on paper after the relaxation ended. Obtain proper electronic documentation and assess the legal effect and tax position from the actual record. Neither the missing form alone nor its later upload automatically decides disallowance under section 40(a)(i). If the full ₹85 lakh were disallowed on independently established facts and a 25.168% effective rate applied with no offset, the illustrative tax effect would be ₹21,39,280. Check the deduction/payment facts, the applicable tax-audit reporting and any available remedy.

Frequently asked questions

Does registration create a PE?

Portal registration by itself does not establish a PE. Apply the treaty to the actual business activities, facilities, agents and other facts.

Can the payer sign on the vendor's behalf?

Do not use the payer's credentials or signature as a substitute. The submission must be made and verified by the non-resident or a person validly authorised to act for it under the applicable law and portal requirements.

Does the certificate cover later payments?

Check the actual residency period, the tax period for the filing and any changes in circumstances. Keep evidence covering each relevant payment or credit.

What if the payee does not supply the documents?

Record what is missing, check whether the payment is chargeable under domestic law, and apply only relief supported under the law and agreement. Do not default every payment to the royalty rate. Where the payer bears tax, assess any gross-up separately under the applicable provisions and contract.

Sources

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