THIS IS NOT A LEGAL OPINION NO RESPONSIBILITY IS ACCEPTED TOWARDS ANY PARTYFOR PLACING RELIANCE ON IT.As per section 194 J of the Income Tax Act 1961 all foreign payments underhead u201cFees for Professional and Technical Servicesu201d are taxed at 10 if therecipient have Indian PAN which is most unlikely for Individual and SMEservice providers of various countries and at 20 rate in case Indian PAN isnot available. By an amendment to section 206AA the requirement of PAN in caseof nonresidents and foreign companies has been done away with.Further the Government has entered into Double Taxation Avoidance AgreementsDTAAu2019s with various Countries including USA which prescribes reduced ratesof tax for residents of the other contracting state 1015 in most cases oreven NIL in some cases for fees for professional and technical services orIndependent Personal Services or other payments also.As per section 90 2 of the Income Tax Act 1961 to whomsoever DTAA isapplicable tax liability shall be the beneficial rate between the Income TaxAct and DTAA. Accordingly in cases of payments to NonResidents to whom theDTAA is applicable if the rate of tax as per DTAA is lower than the Incometax Act the lower rate of taxes should be applicable and if the rate as perDTAA is higher than rate of 10 as prescribed by the Income tax Act 1961 willbe applicable.From a casual look at Form W8 BEN it appears that you can give the referenceof Article 15 of DTAA and section 192J of the I.T.Act 1961. Since the lowerof rates prescribed under DTAA and I.T.Act will be applicable the withholdingtax cannot exceed 10 which is the rate prescribed by the section 194J of theI.T.Act.It is advisable to seek a legal opinion on the subject from an expert who willtake all the facts into consideration before giving an opinion.