2011 (5) TMI 562 - AT - Income Tax

Tax Court: Interest on tax refund not PE-connected; taxed at 15%. Bank interest linked to PE taxable separately.

Asstt. CIT Versus Clough Engineering Ltd.

The Special Bench concluded that the interest on income-tax refund is not effectively connected with the Permanent Establishment (PE) and is taxable under ... DTAA between India and Australia - Interest income - Business income or other sources - Refund - Net or gross basis - The AO is of the view that the indebtedness is effectively connected with the PE as tax has been deducted at source from the business receipts - Held that:- It cannot be urged that the bare fact that the assessee deposited money in the bank is by itself sufficient to show that the deposits were made with a view to carry on the business - The tax has been deducted by operation of law and, therefore, the indebtedness cannot be said to arise in the course of carrying on the business - It has been mentioned that interest on funds which are connected with operation of ships or aircraft in international traffic is covered within the ambit of paragraph (3) for assuming the character of profit from operation of ships or aircraft in international traffic. Thus if the assessee opts to be taxed under the DTAA, the classification of income is not required to be done under the five heads. In fact, no head of income has been prescribed under the treaty - tax was deducted at source from the business receipts of the PE - sense that it has arisen on account of tax deduction at source from the receipts of the PE - The bank interest in this case is an example of effective connection between the PE and the income as the indebtedness is closely connected with the funds of the PE - Appeal is partly allowed Issues Involved:1. Whether the CIT(A) erred in treating the interest income as business income directly connected with the Permanent Establishment (PE) and taxing the same.2. Whether the interest on income-tax refund and fixed deposits with the bank is liable to tax with reference to Article 7 read with paragraph no. 4 of Article 11 or paragraph no. 2 of Article 11 of the Indo-Australia Double Taxation Avoidance Agreement (DTAA).Issue-wise Detailed Analysis:1. Treatment of Interest Income as Business Income:The assessee contended that the CIT(A) erred in treating the interest income as business income directly connected with the PE, thereby ignoring the provisions of the Tax Treaty between India and Australia. The CIT(A) held that the interest income is taxable as business income under Article VII read with paragraph no. 4 of Article XI of the DTAA, as the interest was paid on the refund of tax deducted at source from business receipts, thus directly connected with the business receipt.2. Taxability of Interest on Income-Tax Refund and Fixed Deposits:The Special Bench was constituted to decide whether the interest on income-tax refund and fixed deposits with the bank is taxable under Article 7 read with paragraph no. 4 of Article 11 or paragraph no. 2 of Article 11 of the DTAA. The facts revealed that the assessee received interest on income-tax refund amounting to Rs. 61,04,944 and interest from the bank on fixed deposits amounting to Rs. 13,899. The bank interest was not disputed.The assessee argued that interest is normally taxable at 15% on a gross basis under Article XI of the DTAA, unless the indebtedness from which the interest arises is effectively connected with the PE, in which case Article VII applies, and the interest is taxable on a net basis at the rate applicable to a foreign company. The AO and CIT(A) concluded that the indebtedness is effectively connected with the PE as the tax was deducted from business receipts.Analysis Under Domestic Law:The assessee's counsel referred to section 90(2) of the Income-tax Act, which allows the provisions of the Act to apply to the extent they are more beneficial to the assessee. The counsel argued that interest is taxable under the head 'Income from other sources' unless the source of interest is the business of the assessee. Several case laws were cited to support this view, including Traco Cable Co. Ltd. v. CIT, Ernakulam, Atria Power Corpn. Ltd. v. Dy. CIT, and others, which held that interest on income-tax refunds is taxable under the residuary head and not as business income.Analysis Under DTAA:The DTAA's Article XI deals with the taxation of 'interest.' Paragraph no. 1 allows interest arising in India to be taxed in Australia. Paragraph no. 2 allows such interest to be taxed in India but not exceeding 15% of the gross amount. Paragraph no. 4 provides exceptions, stipulating that paragraphs nos. (1) and (2) do not apply if the interest is effectively connected with the PE, in which case Article VII applies.The assessee argued that the payment of tax is the responsibility of the foreign company and not the PE, hence the indebtedness is not effectively connected with the PE. The Revenue argued that the debt arose from tax deduction at source from business receipts, thus satisfying both asset-test and activity-test for effective connection with the PE.Conclusion:The Special Bench concluded that the interest on income-tax refund is not effectively connected with the PE. The debt arose due to tax deduction by operation of law, which is an appropriation of profit and not an expenditure for earning income. Therefore, such interest is taxable under paragraph no. 2 of Article XI at 15% on a gross basis. The bank interest, however, was effectively connected with the PE and taxable under Article VII.The order was pronounced in the open court on 6th May, 2011.