Why these payment categories get specific treatment

Royalty and Fees for Technical Services (FTS) payments to non-residents are treated as income deemed to accrue in India under domestic law, and are subject to withholding tax at source — with the applicable rate often reduced under the relevant DTAA, if the conditions for treaty relief are met.

What typically counts as royalty

Payments for the use of (or right to use) intellectual property — patents, trademarks, copyrights, know-how, and increasingly, software licensing arrangements, which have generated considerable interpretive debate over the years as to whether they constitute royalty or a business income sale.

What typically counts as FTS

Payments for managerial, technical, or consultancy services — though many DTAAs include a "make available" test, requiring that the services actually transfer technical knowledge or skill to the recipient in a way they can apply independently in future, not just deliver a one-off service outcome. This distinction genuinely changes the tax outcome and is worth analysing carefully rather than assuming.

Where DTAA relief comes in

Many treaties provide a reduced withholding rate for royalty and FTS payments compared to the domestic rate, and some treaties (depending on the specific "make available" language) can exclude certain service payments from FTS treatment entirely — making the specific treaty article and its precise wording genuinely consequential to the tax outcome.

Practical steps for Indian payers

This article provides general guidance for educational purposes and reflects our understanding of the law as of the publication date. It is not a substitute for professional advice tailored to your specific facts. Tax and regulatory provisions change, and thresholds/deadlines should always be verified at the time of action. Please speak with our team before relying on this for a specific decision.
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CR
CA Rajesh Bhagat
International Tax Partner · VRKSJP & Co

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