Summary: Safe Harbour Rules under Section 167 of the Income-tax Act, 2025 and Rules 86–102 provide a structured mechanism for accepting transfer pricing and income attribution without detailed scrutiny if specified conditions are met. These rules cover international transactions, specified domestic transactions, and income attribution for certain non-resident businesses. Once eligibility criteria and prescribed thresholds (such as operating profit margins or interest rates) are satisfied, tax authorities must accept the declared income or transfer price, eliminating litigation and uncertainty. The framework includes detailed definitions, eligibility conditions, and safe harbour margins for sectors like IT services, loans, guarantees, manufacturing, and data centres. It also prescribes procedural requirements through Form 49, timelines, and verification mechanisms, including deemed validity provisions. However, documentation obligations continue, and safe harbour is not available for transactions involving low-tax jurisdictions. While simplifying compliance, the scheme involves trade-offs such as restriction on adjustments and MAP relief.
Comprehensive Analysis of Safe Harbour Rules As Per New Income Tax Act, 2025 And Income Tax Rules, 2026
Section 167 of the Act | Rules 86 to 102 | Form No. 49
International Transactions | Specified Domestic Transactions | Income Attribution
PART I — OVERVIEW & LEGISLATIVE FRAMEWORK
1. Introduction to Safe Harbour Rules
Safe Harbour Rules in transfer pricing provide pre-determined, clear benchmarks — satisfaction of which results in mandatory acceptance of the declared transfer price or income by income-tax authorities without further scrutiny. They eliminate the uncertainty and litigation costs associated with traditional arm’s length price (ALP) determination.
Under the Income-tax Act, 2025 (‘the Act’) and Income-tax Rules, 2026 (‘the Rules’), the safe harbour framework is exhaustive and covers three distinct categories:
- Stream 1 — Safe Harbour for International Transactions (Rules 86–93)
- Stream 2 — Safe Harbour for Specified Domestic Transactions (Rules 94–98)
- Stream 3 — Safe Harbour for Income Attribution — Business & Profession (Rules 99–102)
2. Statutory Basis: Section 167 of the Income-tax Act, 2025
| S.167 | (1) The determination of — (a) income referred to in section 9(2); or (b) arm’s length price under section 165 or 166 — shall be subject to safe harbour rules.
(2) The Board may make rules for safe harbour. (3) ‘Safe harbour’ means circumstances in which the income-tax authorities SHALL ACCEPT — (a) the transfer price; or (b) the income, deemed to accrue or arise under section 9(2) — declared by the assessee. |
Three critical pillars flow from this definition:
- The word ‘shall’ makes acceptance mandatory — income-tax authorities have no discretion to recompute the ALP or income once the conditions are met
- Applies both to ALP (sections 165/166) and to income attribution for non-residents (section 9(2))
- Specific ‘circumstances’ are defined by Rules — giving taxpayers a bright-line test
3. Key Interconnected Provisions
| Section | Provision | Relevance to Safe Harbour |
| Sec. 9(2) | Income deemed to accrue in India — business connection, asset/property in India, transfer of capital asset | Safe harbour for income attribution of foreign companies (Rules 99–102) operating via India-based activities |
| Sec. 163 | International Transaction | Defines eligible international transactions covered by Rules 86–93; requires one party to be non-resident |
| Sec. 164 | Specified Domestic Transaction (threshold > ₹20 Cr) | Defines eligible specified domestic transactions under Rules 94–98 |
| Sec. 165 | Arm’s Length Price — Methods of Determination | Safe harbour exempts eligible transactions from ALP determination scrutiny; no comparability adjustment allowed |
| Sec. 166 | Reference to Transfer Pricing Officer | No TPO reference for eligible transactions with valid safe harbour; TPO verifies eligibility if AO doubts option |
| Sec. 167 | Safe Harbour — Enabling Provision | Statutory basis; empowers Board to make safe harbour rules; defines ‘safe harbour’ |
| Sec. 168 | Advance Pricing Agreement | Alternative to safe harbour for complex/bespoke transactions — bilateral option with MAP rights preserved |
| Sec. 171 | Maintenance of TP Documentation | Continues to apply even if safe harbour is exercised — documentation obligations NOT waived |
| Sec. 172 | Accountant’s Report (Form 48) | Continues to apply — must be obtained and filed irrespective of safe harbour election |
| Sec. 159 | DTAA / Mutual Agreement Procedure (MAP) | MAP CANNOT be invoked for transactions for which safe harbour is accepted (Rules 93, 102) |
| Sec. 176 | Notified Jurisdictional Areas (NJA) | Safe harbour categorically unavailable for transactions with AEs in NJAs (Rule 92) |
PART II — SAFE HARBOUR: INTERNATIONAL TRANSACTIONS (Rules 86–93)
4. Definitions — Rule 86
Rule 86 provides detailed definitions applicable to the entire Rules 86–93 cluster. These definitions are critical because eligibility, thresholds, and computations all turn on these precise meanings.
4.1 Accountant [Rule 86(a)]
An accountant for cost-certification purposes (required for LVAIGS — Rule 89(2), Sl. 8) means:
- Individual or valuer: Professional experience ≥ 10 years AND annual receipts in the preceding year exceeding ₹50 lakhs from the exercise of profession
- Member/partner in an entity: Annual receipts of the entity in the preceding year exceed ₹3 crore
- Foreign accountant: Same conditions, AND if in an entity, the entity or its affiliates must have presence in more than two countries
4.2 Contract R&D Services — Software [Rule 86(b)]
Means research and development producing or relating to software, including:
- Research producing new theorems and algorithms in theoretical computer science
- Development of IT at OS, programming language, data management, communications software, or software development tools level
- Development of internet technology
- Research into methods of designing, developing, deploying or maintaining software
- Software development producing advances in capturing, transmitting, storing, retrieving, manipulating or displaying information
- Experimental development to fill technology knowledge gaps necessary for developing a software programme or system
- R&D on software tools in specialised computing areas (image processing, geographic data, character recognition, artificial intelligence, etc.)
- Upgradation of existing products where source code made available by principal — EXCEPT where source code made available only for routine functions like debugging
4.3 Core Auto Components [Rule 86(c)]
- Engine and engine parts — pistons & rings, engine valves, cooling systems, power train components
- Transmission and steering — gears, wheels, steering systems, axles, clutches
- Suspension and braking — brake assemblies, brake linings, shock absorbers, leaf springs
- Lithium-ion batteries for use in electric or hybrid electric vehicles
4.4 Corporate Guarantee [Rule 86(d)]
Means an EXPLICIT corporate guarantee extended by a company to its WHOLLY OWNED SUBSIDIARY being a NON-RESIDENT in respect of short-term or long-term borrowing. Expressly EXCLUDES: letter of comfort, implicit corporate guarantee, performance guarantee, and any other guarantee of similar nature.
4.5 Data Centre & Data Centre Services [Rule 86(e)–(f)]
Data Centre: A dedicated secure space (within a building or centralised location) where computing and networking equipment is concentrated for collecting, storing, processing, distributing or allowing access to large amounts of data.
Data Centre Services: Services provided through physical infrastructure (land, buildings, mechanical/electrical power equipment, cooling systems, security) AND IT infrastructure (servers, computers, storage systems, operating systems, security solutions, networks and associated software platforms, networking equipment) AND human resources in India.
4.6 Generic Pharmaceutical Drug [Rule 86(g)]
A drug comparable to an already regulatory-authority-approved drug in dosage form, strength, route of administration, quality, performance characteristics, and intended use.
4.7 Information Technology Enabled Services (ITeS) [Rule 86(h)]
BPO services provided mainly with assistance/use of IT, including: back office operations, call/contact centre services, data processing and data mining, insurance claim processing, legal databases, medical transcription (excluding medical advice), translation services, payroll, remote maintenance or recovery, revenue accounting, support centres, website services, data search/integration/analysis, remote education (excluding content development), clinical database management services (excluding clinical trials).
| Note | ITeS explicitly EXCLUDES any R&D services, whether or not in the nature of contract R&D services. This categorical exclusion is important — R&D is a separate and higher-margin category. |
4.8 Intra-Group Loan [Rule 86(i)]
A loan advanced to an associated enterprise being a non-resident, satisfying both conditions:
- NOT advanced by a financial company (bank, financial institution, or enterprise engaged in lending/borrowing in the normal course of business)
- Does NOT include credit lines or any other loan facility with no fixed repayment term
4.9 Knowledge Process Outsourcing (KPO) Services [Rule 86(j)]
BPO services requiring application of knowledge and advanced analytical/technical skills: geographic information systems, human resources services, engineering and design services, animation/content development and management, business analytics, financial analytics, market research. EXCLUDES R&D services.
4.10 Low Value-Adding Intra-Group Services (LVAIGS) [Rule 86(k)]
Services by one or more MNE group members for other members that satisfy ALL six conditions:
(i) In the nature of support services
(ii) Not part of core business — neither profit-earning activities nor economically significant activities of the MNE group
(iii) Not shareholder services or duplicate services
(iv) Do not require use of, nor lead to creation of, unique and valuable intangibles
(v) Do not involve assumption or control of significant risk, nor give rise to creation of significant risk, for the service provider
(vi) Do not have reliable external comparable services for ALP determination
LVAIGS expressly EXCLUDES: R&D services; manufacturing/production; IT software development; KPO; BPO; purchasing of raw/other materials for manufacturing; sales, marketing and distribution; financial transactions; extraction/exploration/processing of natural resources; and insurance/reinsurance.
4.11 Non-Core Auto Components [Rule 86(l)]
All auto components other than core auto components — i.e., all components not falling in Rule 86(c).
4.12 No Tax or Low Tax Country or Territory [Rule 86(m)]
A country or territory in which the maximum rate of income-tax is less than 15%.
4.13 Operating Expense [Rule 86(n)]
INCLUDES: costs incurred in the tax year in relation to the international transaction during normal operations, including ESOP/stock-based compensation provided by AEs to employees of the assessee; reimbursements to/from AEs at cost; depreciation and amortisation on assets used.
EXCLUDES: interest expense; provisions for unascertained liabilities; pre-operating expenses; foreign currency fluctuation losses; extraordinary expenses; losses on transfer of assets/investments (other than assets on which depreciation is included in operating expense); income-tax expense; and other expenses not relating to normal operations.
4.14 Operating Revenue [Rule 86(o)]
Revenue earned in the tax year in relation to the international transaction during normal operations (including ESOP costs). EXCLUDES: interest income; foreign currency fluctuation income; income on transfer of assets/investments (other than assets on which depreciation is included in operating expense); income-tax refunds; provisions written back; extraordinary incomes; and other incomes not relating to normal operations.
4.15 Operating Profit Margin [Rule 86(p)]
Ratio of operating profit (operating revenue in excess of operating expense) to operating expense, expressed as a percentage. This is the standard cost-plus margin measure: OPM = (OR − OE) / OE × 100%.
4.16 Relevant Tax Year [Rule 86(q)]
The tax year for which the option for safe harbour is validly exercised.
4.17 Software Development Services [Rule 86(r)]
Means: business application software and information system development using known methods and existing software tools; ancillary/support services for existing systems; converting/translating computer languages; adding user functionality to application programmes; debugging of systems; adaptation of existing software; preparation of user documentation. EXCLUDES R&D services.
5. Eligible Assessee for International Transactions — Rule 87
‘Eligible assessee’ is defined in Rule 87(1) as a person who has exercised a valid option under Rule 90 (or Rule 91 for IT services) and falls into one of the following categories:
| Cat. | Category | Key Eligibility Parameters |
| (a) | IT Services Provider | Engaged in providing software development services, ITeS, KPO services, or contract R&D services (software) — with INSIGNIFICANT RISK — to a non-resident associated enterprise (‘foreign principal’) |
| (b) | Intra-Group Lender | Has made any intra-group loan as defined in Rule 86(i) — loan to non-resident AE, not by a financial company, with fixed repayment term |
| (c) | Corporate Guarantor | Has provided a corporate guarantee — explicit guarantee by a company to its wholly owned non-resident subsidiary for short/long-term borrowings |
| (d) | Pharma R&D Provider | Engaged in providing contract R&D services wholly/partly relating to generic pharmaceutical drugs, with INSIGNIFICANT RISK, to a foreign principal |
| (e) | Auto Component Manufacturer | Engaged in manufacture and export of core or non-core auto components, where 90% or more of total turnover during the relevant tax year is OEM (Original Equipment Manufacturer) sales |
| (f) | LVAIGS Recipient | In receipt of low value-adding intra-group services from one or more members of its group |
| (g) | Data Centre Provider | Has provided data centre services to a foreign company |
5.1 Insignificant Risk — IT Services [Rule 87(2)]
The DGIT(Systems) shall have regard to the following five factors to determine ‘insignificant risk’ for IT services:
- Foreign principal performs most economically significant functions — conceptualization, product design, strategic direction — either through its own employees or other AEs; eligible assessee carries out assigned work
- Capital, funds, and economically significant assets (including intangibles) are provided by foreign principal or its AEs; eligible assessee is only remunerated for work
- Eligible assessee works under direct supervision of foreign principal or AE — which has capability and actually exercises control/supervision through strategic decisions and regular monitoring
- Eligible assessee does not assume or has no economically significant realised risks — contractual terms are NOT determinative if conduct shows otherwise
- Eligible assessee has NO ownership right — legal or economic — on any intangible generated or arising during rendering of services; all IPR vests with foreign principal as evident from both contract and conduct
| Key | The ‘conduct over contract’ principle is explicitly embedded in Rule 87(2)(d) and (e). If the contract says the foreign principal controls risk/IPR but the eligible assessee actually does so, the contractual terms are NOT the final determinant. Tax authorities will examine actual functional and risk profiles. |
5.2 Insignificant Risk — Pharma R&D [Rule 87(3)]
For pharma contract R&D (Rule 87(1)(d)), the same five factors apply — verified by DGIT(Systems), AO, or TPO. The principle of substance-over-form (conduct over contract) applies equally here.
6. Eligible International Transactions — Rule 88
Rule 88 defines ‘eligible international transaction’ as a transaction between the eligible assessee and its associated enterprise, ONE OF WHICH IS NECESSARILY A NON-RESIDENT:
| Cl. | Eligible International Transaction | Sub-categories / Details |
| (a) | Provision of IT Services | Software development services; ITeS; KPO services; contract R&D services wholly/partly relating to software development |
| (b) | Advance of Intra-Group Loan | Loan to non-resident AE as defined in Rule 86(i) — not by a financial company; with fixed repayment term |
| (c) | Provision of Corporate Guarantee | (i) Amount guaranteed ≤ ₹100 crore; OR (ii) Amount > ₹100 crore AND credit rating of the AE by SEBI-registered agency is adequate to highest safety |
| (d) | Pharma Contract R&D | Contract R&D services wholly or partly relating to generic pharmaceutical drugs |
| (e) | Core Auto Components | Manufacture and export of core auto components as defined in Rule 86(c) |
| (f) | Non-Core Auto Components | Manufacture and export of non-core auto components as defined in Rule 86(l) |
| (g) | Receipt of LVAIGS | Receipt of low value-adding intra-group services from one or more members of its group |
| (h) | Provision of Data Centre Services | Data centre services as defined in Rule 86(f) provided to a foreign company |
7. Safe Harbour Thresholds — Eligible International Transactions (Rule 89)
Rule 89(1) provides that the transfer price declared by an eligible assessee shall be accepted by income-tax authorities if: (a) the option is not held invalid under Rule 90; and (b) the price is in accordance with the circumstances in Rule 89(2). These thresholds constitute the operative safe harbour.
7.1 Threshold Table [Rule 89(2)]
| Sl. | Eligible International Transaction | Safe Harbour Threshold / Circumstances |
| 1 | Provision of IT Services | OPM / OE ≥ 15.5%
Condition: Aggregate operating revenue from the transaction(s) ≤ ₹2,000 crore in the relevant tax year. Covers: Software Development Services + ITeS + KPO Services + Contract R&D (Software) |
| 2 | Intra-Group Loan — INR Denominated | Interest Rate ≥ SBI 1-year MCLR (as on 1st April of relevant tax year) PLUS:
(i) 175 bps — AE credit rating: AAA to A or equivalent (ii) 325 bps — AE credit rating: BBB-, BBB, BBB+ or equivalent (iii) 475 bps — AE credit rating: BB to B or equivalent (iv) 625 bps — AE credit rating: C to D or equivalent (v) 425 bps — No credit rating available AND total INR loans to all AEs ≤ ₹100 crore aggregate as on 31st March of relevant tax year |
| 3 | Intra-Group Loan — Foreign Currency | Interest Rate ≥ Reference Rate (as on 30th September of relevant tax year) PLUS:
(a) Aggregate FC loans to all AEs ≤ ₹250 crore equivalent as on 31st March:
(b) Aggregate FC loans to all AEs > ₹250 crore equivalent as on 31st March:
|
| 4 | Corporate Guarantee | Commission / Fee ≥ 1% per annum on the amount guaranteed
This flat rate applies irrespective of credit rating or amount (subject to Rule 88(c) eligibility). No graduated rate structure for guarantees. |
| 5 | Pharma Contract R&D — Generic Drugs | OPM / OE ≥ 24%
Condition: Aggregate operating revenue from such transactions ≤ ₹300 crore. Higher margin reflects R&D risk premium. |
| 6 | Manufacture & Export — Core Auto Components | OPM / OE ≥ 12%
No aggregate revenue cap. Applicable to OEM manufacturers with ≥90% OEM turnover. |
| 7 | Manufacture & Export — Non-Core Auto Components | OPM / OE ≥ 8.5%
No aggregate revenue cap. Lower threshold reflects lower value-addition vs. core components. |
| 8 | Receipt of LVAIGS | Total LVAIGS amount ≤ ₹10 crore (including mark-up not exceeding 5%)
PLUS — the following must be certified by an accountant:
|
| 9 | Provision of Data Centre Services | OPM / OE ≥ 15%
No aggregate revenue cap. New category introduced under the 2026 Rules. |
7.2 Reference Rates for Foreign Currency Loans [Rule 89(3)(a)]
The ‘reference rate’ for FC-denominated intra-group loans, determined as on 30th September of the relevant tax year:
| Currency | Benchmark / Rate | Administered By |
| US Dollar (USD) | 6-month Term SOFR + 45 basis points | Chicago Mercantile Exchange (CME) |
| Euro (EUR) | 6-month EURIBOR (no adjustment) | European Money Markets Institute (EMMI) |
| UK Pound Sterling (GBP) | 6-month Term SONIA + 30 basis points | ICE Benchmark Administration / Refinitiv |
| Japanese Yen (JPY) | 6-month TORF + 10 basis points | QUICK Benchmarks Inc. |
| Australian Dollar (AUD) | 6-month BBSW (no adjustment) | Australian Securities Exchange |
| Singapore Dollar (SGD) | 6-month Compounded SORA + 45 basis points | Monetary Authority of Singapore (MAS) |
7.3 Credit Rating Rules [Rule 89(3)(b)]
- Credit rating means the rating assigned by a SEBI-registered AND RBI-accredited credit rating agency, applicable for the relevant tax year
- AE with single rating → that rating is used
- AE with ratings from more than one agency → the LEAST (most conservative) of all such ratings is used
7.4 Block Period [Rule 89(4)]
| Block | The safe harbour thresholds in Rule 89(2) apply for a BLOCK PERIOD OF THREE TAX YEARS commencing from Tax Year 2026-27 (i.e., TY 2026-27, TY 2027-28, and TY 2028-29). The provisions continue to apply for subsequent block periods unless modified by the CBDT. This provides medium-term certainty for taxpayers planning their transfer pricing policy. |
7.5 No Comparability Adjustment [Rule 89(5)]
| Key | Once the declared transfer price is accepted under safe harbour, NO comparability adjustment and NO allowance under section 165(3)(a)(ii) (tolerance range / range concept) shall be made to the declared price. The declared price is accepted exactly as declared. |
7.6 TP Documentation and Accountant Report Continue [Rule 89(6)]
Sections 171 (TP documentation — mandatory maintenance and production) and 172 (accountant’s report in Form 48) apply irrespective of exercise of the safe harbour option. This is a critical compliance point — safe harbour reduces ALP litigation risk but does NOT waive documentation obligations.
8. Procedure for Safe Harbour — Non-IT Services (Rule 90)
Rule 90 governs the procedure for exercising safe harbour for all eligible international transactions EXCEPT provision of IT services (which has a separate procedure under Rule 91).
8.1 Filing Requirement [Rule 90(1)]
- Assessee shall furnish Form No. 49 (complete in all respects) to the Assessing Officer on or before the due date for furnishing return of income under section 263(1)(c)
- Return of income must be furnished on or before the date of furnishing Form No. 49 — the return must be filed first or simultaneously with Form 49
8.2 AO’s Verification [Rule 90(2)]
The AO verifies: (a) whether the assessee is an eligible assessee; and (b) whether the transaction is an eligible international transaction — before the option is treated as validly exercised.
8.3 Reference to TPO [Rule 90(3)–(5)]
Where the AO DOUBTS the valid exercise of the option, the AO shall make a reference to the Transfer Pricing Officer (TPO) for determination of eligibility. The TPO may require information/documents by notice in writing. The TPO, after giving a reasonable opportunity of hearing, may declare the option INVALID by order in writing if: (a) assessee does not furnish required information; (b) assessee is not an eligible assessee; or (c) transaction is not an eligible international transaction.
8.4 Objection to Commissioner [Rule 90(6)–(7)]
Assessee may file objections with the Commissioner (to whom TPO is subordinate) within 15 DAYS of receipt of TPO’s order. The Commissioner, after providing reasonable opportunity of hearing, shall pass appropriate orders on validity of the option.
8.5 Action After Validation [Rule 90(8)]
Where option is held valid, the AO shall verify whether the declared transfer price meets the circumstances in Rule 89(2). If it does NOT meet the thresholds, the AO shall adopt the operating profit margin/interest rate/commission specified in Rule 89(2).
8.6 Time Limits and Deemed Validity [Rule 90(9)–(10)]
| Authority / Action | Time Limit |
| AO — Reference to TPO [Rule 90(3)] | Within 2 months from end of month in which Form 49 received |
| TPO — Order on eligibility [Rule 90(5)] | Within 2 months from end of month in which AO’s reference received |
| Commissioner — Order on assessee’s objection [Rule 90(7)] | Within 2 months from end of month in which objection received |
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| Deeming | DEEMED VALIDITY [Rule 90(10)]: If the AO, TPO, or Commissioner fails to make a reference or pass an order within the specified time limits, the option exercised by the assessee shall be TREATED AS VALID. This deeming provision protects taxpayers from administrative delay. |
8.7 Electronic Filing [Rule 90(11)]
Form No. 49 must be furnished electronically — either under digital signature or through Electronic Verification Code (EVC) — and verified by the person authorised to verify the return of income under section 265.
8.8 Non-Eligible Transactions [Rule 90(12)]
The AO may make a reference under section 166 (TPO reference) in respect of international transactions OTHER THAN the eligible international transaction. Safe harbour protection is transaction-specific — not a blanket shield.
9. Special Procedure for IT Services — 5-Year Block (Rule 91)
Rule 91 provides a distinct and significantly more taxpayer-friendly procedure for IT services safe harbour. The most critical feature is that a single filing in Year 1 covers five consecutive tax years.
9.1 Five-Consecutive-Year Validity [Rule 91(1)]
| Key Feature | Once validly exercised, the safe harbour option for IT services remains in force for a CONTINUOUS PERIOD OF FIVE CONSECUTIVE TAX YEARS. The assessee need not re-file the option for Years 2 through 5 — a single valid exercise in Year 1 covers the entire block. |
9.2 Revenue Threshold Tested in Year 1 Only [Rule 91(2)]
The ₹2,000 crore aggregate operating revenue threshold is tested for the FIRST of the five consecutive tax years only. If it is within the threshold in Year 1, no re-testing occurs in Years 2–5, even if revenues grow.
9.3 Filing — DGIT(Systems), Year 1 Only [Rule 91(3)]
Form No. 49 for IT services safe harbour is filed with the DIRECTOR GENERAL OF INCOME-TAX (SYSTEMS) (not the AO — unlike Rule 90). It must be filed on or before the due date for return of income for Year 1. The electronic verification and processing is entirely system-driven.
9.4 System-Based Verification and Intimation [Rule 91(4)–(5)]
After filing, verification of eligibility — eligible assessee, eligible transaction, and valid exercise — is done electronically. The DGIT(Systems) must intimate acceptance or rejection within 2 months from the end of the month in which the option is exercised.
9.5 Rejection Requires Opportunity [Rule 91(6)–(7)]
The option shall not be rejected unless the assessee is given an opportunity to remove defects. Where rejected electronically, written reasons must be provided.
9.6 Annual Compliance — Years 2 to 5 [Rule 91(8) & (13)]
- For each of the five tax years, the assessee must file the return of income in accordance with safe harbour provisions on or before the due date
- For Years 2, 3, 4 and 5: a STATEMENT must be filed on or before the return due date, providing details of eligible transactions, their quantum, and profit margins
9.7 Withdrawal — Limited Window [Rule 91(9)–(12)]
- Withdrawal is by furnishing a declaration — the option ceases to operate for that year and all subsequent years of the 5-year block
- Withdrawal must be made WITHIN 6 MONTHS from the end of the FIRST tax year — after this window, withdrawal is not permitted
- Post-withdrawal, the assessee cannot re-exercise the option until the expiry of the entire five consecutive tax years — effectively barred for the remainder of the block
9.8 CEO / CMD Certification [Rule 91(16)]
| Certification | Form No. 49 for IT services MUST be certified by the CHIEF EXECUTIVE OFFICER or CHAIRMAN AND MANAGING DIRECTOR of the assessee — in addition to verification by the person authorised to verify the return. This dual-layer certification is specific to IT services and does not apply to other safe harbour transactions. |
9.9 DGIT(Systems) Role [Rule 91(17)]
The DGIT(Systems), with Board approval, lays down the data structure, standards, format and procedure for furnishing and verification of Forms, statements, orders, and declarations under Rule 91, including any modifications.
9.10 Non-Eligible Transactions [Rule 91(14)]
AO may still make a reference under section 166 for international transactions other than the eligible IT services transaction.
10. Exclusions from Safe Harbour — Rule 92
| Critical | Rule 92 provides an absolute categorical exclusion:
NOTHING in Rules 86 to 91 shall apply in respect of eligible international transactions entered into with an associated enterprise located in: (a) Any country or territory NOTIFIED UNDER SECTION 176 (Notified Jurisdictional Area — countries with lack of effective exchange of information); OR (b) A NO TAX OR LOW TAX COUNTRY OR TERRITORY (maximum income-tax rate < 15%) This exclusion overrides all other eligibility conditions — even if every other condition is satisfied, safe harbour is unavailable if the AE is in a NJA or low/no-tax jurisdiction. |
11. MAP Exclusion — Rule 93
Where the transfer price in relation to an eligible international transaction is accepted by income-tax authorities under section 167, the assessee shall NOT be entitled to invoke the Mutual Agreement Procedure (MAP) under any Double Taxation Avoidance Agreement under section 159, in respect of that transaction.
| Practical | The MAP exclusion is transaction-level — it applies only to the specific transaction for which safe harbour was accepted. The assessee may still invoke MAP for other non-safe-harbour transactions. However, if the AE’s home country makes a corresponding adjustment on the same transaction, the assessee cannot seek Indian competent authority assistance through MAP. |
PART III — SAFE HARBOUR: SPECIFIED DOMESTIC TRANSACTIONS (Rules 94–98)
12. Definitions — Rule 94
Rule 94 defines two terms for Rules 94–98:
- ‘Appropriate Commission’ — same meaning as section 2(4) of the Electricity Act, 2003 — Central Electricity Regulatory Commission (CERC) or State Electricity Regulatory Commission (SERC), as applicable
- ‘Government company’ — same meaning as section 2(45) of the Companies Act, 2013 — company in which ≥51% paid-up share capital is held by the Central/State Government, or a subsidiary of such company
13. Eligible Assessee — Specified Domestic Transactions (Rule 95)
An ‘eligible assessee’ means a person who has exercised a valid option under Rule 97 and is:
| Category | Description |
| Category (a) | A Government company engaged in the business of generation, supply, transmission or distribution of electricity |
| Category (b) | A co-operative society engaged in the business of procuring and marketing milk and milk products |
–
| Observation | The eligible assessee scope for specified domestic transactions is deliberately narrow — limited to government electricity entities and dairy co-operatives. These are sectors where pricing is regulated by statute or regulator, rendering ALP determination redundant. |
14. Eligible Specified Domestic Transactions — Rule 96
An ‘eligible specified domestic transaction’ means a specified domestic transaction by an eligible assessee comprising of:
- Supply of electricity
- Transmission of electricity
- Wheeling of electricity
- Purchase of milk or milk products by a co-operative society from its members
15. Safe Harbour Thresholds — Specified Domestic Transactions (Rule 97)
| Sl. | Eligible Specified Domestic Transaction | Safe Harbour Circumstances |
| 1 | Supply / Transmission / Wheeling of Electricity | Tariff determined OR methodology for determination approved by the Appropriate Commission
The Appropriate Commission determination or approval must be in accordance with the Electricity Act, 2003. The regulator’s determination substitutes ALP analysis — regulatory pricing IS the arm’s length price for these entities. |
| 2 | Purchase of Milk / Milk Products by Co-operative from Members | ALL of the following conditions must be simultaneously satisfied:
Price fixed on the basis of QUALITY — fat content AND Solid Not Fat (SNF) content of milk The said rate is IRRESPECTIVE OF: (i) Quantity of milk procured (ii) Percentage of shares held by members in the co-operative society (iii) Voting power held by members in the co-operative society Rates are routinely declared by the co-operative in a TRANSPARENT manner and are AVAILABLE IN PUBLIC DOMAIN |
15.1 No Comparability Adjustment [Rule 97(3)]
No comparability adjustment and no allowance under section 165(3)(a)(ii) shall be made to the transfer price declared by the eligible assessee and accepted under the safe harbour provisions.
15.2 Sections 171 and 172 Continue [Rule 97(4)]
TP documentation (section 171) and accountant’s report (section 172) obligations continue to apply for specified domestic transactions even if safe harbour is exercised.
16. Procedure — Specified Domestic Transactions (Rule 98)
16.1 Filing [Rule 98(1)]
- Form No. 49 to the Assessing Officer on or before return due date under section 263(1)(c)
- Return of income must be furnished on or before the date of furnishing Form No. 49
16.2 AO Verification [Rule 98(2)]
AO verifies: (a) eligible assessee status; and (b) eligible specified domestic transaction status — before the option is treated as validly exercised.
16.3 AO’s Direct Verification Power [Rule 98(3)]
Unlike international transactions (where doubts are referred to the TPO), for specified domestic transactions the AO ITSELF can require the assessee to furnish information, documents or other evidence by written notice. There is no TPO reference mechanism for SDTs.
16.4 Grounds for Invalidity [Rule 98(4)]
AO shall declare option invalid after giving reasonable opportunity of hearing if:
- Assessee fails to furnish required information/documents/evidence
- Assessee is not an eligible assessee
- Transaction is not an eligible specified domestic transaction
- The tariff is not in accordance with the circumstances specified under Rule 97 (additional ground specific to SDTs)
16.5 Appeal to PC/Commissioner [Rule 98(5)–(6)]
Assessee may file objections with the Principal Commissioner or Commissioner (to whom AO is subordinate) within 15 DAYS of receipt of AO’s order. PC/Commissioner shall pass appropriate orders after providing opportunity of hearing.
16.6 Time Limits [Rule 98(7)–(8)]
| Authority / Action | Time Limit |
| AO — Declaring option invalid [Rule 98(4)] | Within 3 months from end of month in which Form 49 received (longer than IT international transactions) |
| PC/Commissioner — Order on objection [Rule 98(6)] | Within 2 months from end of month in which objection received |
–
| Deeming | DEEMED VALIDITY [Rule 98(8)]: If the AO or PC/Commissioner fails to pass an order within the specified time, the option is treated as VALID. |
16.7 Electronic Filing [Rule 98(9)]
Form No. 49 to be furnished electronically — under digital signature or EVC — and verified by the person authorised to verify the return under section 265.
16.8 Non-Eligible Transactions [Rule 98(10)]
AO may refer other specified domestic transactions (not covered by safe harbour) to the TPO under section 166.
PART IV — SAFE HARBOUR: INCOME ATTRIBUTION — BUSINESS & PROFESSION (Rules 99–102)
17. Context
Rules 99–102 provide a safe harbour for income attribution for two specific businesses of non-resident foreign companies that carry on limited activities in India — activities which may constitute a ‘business connection’ under section 9(2) but not a full permanent establishment. The safe harbour eliminates disputes on the quantum of income attributable to Indian activities for these specific foreign entities.
This directly connects to section 9(2) of the Act — income accruing or arising through business connection in India is deemed to accrue/arise in India. For the two categories below, section 9(2) income attribution is ‘safe harboured’ by a minimum profit percentage of gross receipts.
18. Definitions — Rule 99
18.1 Contract Manufacturer [Rule 99(a)]
An Indian company that produces specified electronic goods on behalf of any foreign company in a CUSTOM BONDED AREA.
18.2 Custom Bonded Area [Rule 99(b)]
A warehouse as referred to in section 65 of the Customs Act, 1962.
18.3 Eligible Assessee [Rule 99(c)]
| Category | Description |
| (i) Diamond Mining | A FOREIGN COMPANY engaged in the business of diamond mining that has exercised an option for safe harbour in accordance with Rule 100 |
| (ii) Electronics Storage | A FOREIGN COMPANY that stores components in a warehouse in a custom bonded area for providing them to a contract manufacturer to be used for manufacturing of specified electronic goods |
18.4 Eligible Business [Rule 99(d)]
| Category | Description |
| (i) Diamond | Business of selling raw diamonds in any notified special zone as referred to in section 9(9)(c)(ii)(C) of the Act |
| (ii) Electronics | Business activity of storage of components in a warehouse in a custom bonded area for sale to a contract manufacturer for manufacturing specified electronic goods |
18.5 Gross Receipts [Rule 99(e)]
- Diamond: Aggregate of amounts paid/payable and received/deemed received on account of sale of raw diamonds by the eligible assessee
- Electronics: Aggregate of amounts paid/payable and received/deemed received on account of sale of components in the custom bonded area to the contract manufacturer
18.6 Raw Diamonds [Rule 99(f)]
Diamonds that satisfy ALL of the following:
- Uncut or unpolished
- Unassorted
- Unworked or simply sawn, cleaved or bruted
- Not conflict diamonds as defined by the Kimberley Process
- Accompanied by Kimberley Process Certificate issued by the Kimberley Process authority in the exporting country
- Falling under Tariff Heading 7102 of the First Schedule to the Customs Tariff Act, 1975
18.7 Relevant Tax Year [Rule 99(g)]
The tax year in which the option for safe harbour is exercised (annual — unlike the 5-year IT services option under Rule 91).
18.8 Specified Electronic Goods [Rule 99(h)]
- Mobile phones
- Laptops, all-in-one personal computers, and tablets
- Servers and ultra small form factor (USSF) devices
- Sub-assemblies to the above finished goods
- Hearables and wearables and accessories related to mobile phones, laptops, PCs, tablets, and servers
19. Safe Harbour Thresholds — Income Attribution (Rule 100)
Rule 100(1): Income-tax authorities shall accept the safe harbour option where the income declared from an eligible business is in accordance with the thresholds below, unless declared invalid under Rule 101(3).
| Sl. | Eligible Business | Safe Harbour Threshold |
| 1 | Selling of Raw Diamonds in Special Zone | Profits and Gains of Eligible Business ≥ 4% of Gross Receipts
Profits chargeable to tax under ‘Profits and gains of business or profession’. Higher threshold reflects the higher value/margin business of diamond trading. |
| 2 | Storage of Components in Custom Bonded Area for Sale to Contract Manufacturer | Profits and Gains of Eligible Business ≥ 2% of Gross Receipts
Profits chargeable to tax under ‘Profits and gains of business or profession’. Lower threshold reflects the storage/warehousing nature of the activity. |
19.1 Consequential Tax Treatment — Important Restrictions [Rule 100(3)]
| Restrictions | Where the eligible assessee has validly exercised the safe harbour option, the following restrictions apply — the eligible assessee CANNOT claim any further deductions or set-offs from the income from the eligible business:
(a) No further deductions under sections 28 to 34, 44 to 49, 51, 52, Schedule IX and Schedule X — deemed to have been fully given effect to already (b) Written Down Value (WDV) of assets calculated as if depreciation had been claimed and allowed for the relevant tax year (c) No set-off of unabsorbed depreciation (section 33(11)) or carried forward business loss (section 112(1)) (d) No set-off of loss from other business (section 108(1)) or from other head of income (section 109) against income from this eligible business (e) This ‘ring-fencing’ of income is a significant trade-off that taxpayers must evaluate before exercising the option. |
19.2 TP Provisions Continue [Rule 100(4)]
If the eligible assessee also enters into international transactions or specified domestic transactions while carrying on the eligible business, sections 171 and 172 (TP documentation and accountant’s report) continue to apply for those transactions.
20. Procedure — Income Attribution Safe Harbour (Rule 101)
20.1 Filing — BEFORE Return [Rule 101(1)]
| Important | Form No. 49 must be furnished to the Assessing Officer BEFORE (not simultaneously with) the return of income under section 263 for the relevant tax year. This is a stricter timing requirement than Rules 90 and 98, which allow filing on or before the return due date. |
20.2 Default Without Election [Rule 101(2)]
If the assessee does NOT exercise the safe harbour option, income from eligible business is determined under the normal provisions of the Act (without Rule 100(2) thresholds) — i.e., normal scrutiny and ALP/attribution analysis.
20.3 AO’s Power to Declare Invalid [Rule 101(3)]
The AO may declare the option invalid by written order if the assessee has:
- Availed the safe harbour by furnishing INCORRECT FACTS; or
- CONCEALED facts related to the business
These are stronger grounds than mere non-eligibility — implying deliberate misstatement. The AO must provide reasonable opportunity of hearing before declaring the option invalid, and must serve a copy of the order.
20.4 Electronic Filing [Rule 101(6)]
Form No. 49 furnished electronically under digital signature or EVC; verified by person authorised to verify return under section 265.
21. MAP Exclusion — Income Attribution (Rule 102)
The assessee shall NOT be entitled to invoke the Mutual Agreement Procedure under any DTAA (section 159) in relation to an eligible business, if the assessee has exercised the option for safe harbour under Rule 101 AND the option has not been declared invalid.
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