2011 (11) TMI 505 - AT - Income Tax

Tribunal rules in favor of appellant on taxation issues - reduced rate, reassessment, interest levy

The Tribunal ruled in favor of the appellant on all three issues. It held that interest income on an income-tax refund should be taxed at a reduced rate ... India Netherland DTAA - Taxing of interest income on income-tax refund - @ 41% OR 10% as per assessee under Article 11 of DTAA - Held that:- As decided in ACIT v. Clough Engg. Ltd. [2011 (5) TMI 562 - ITAT, DELHI] & Hapag Lloyd Container Linie GmbH v. Asstt. DIT (2010 (12) TMI 282 - ITAT, MUMBAI) interest on income-tax refund cannot be considered as business profit but has to be covered under Article 11 - DR has not shown any difference in the language of the relevant DTAA vis-à-vis that considered by the tribunal in the aforenoted two cases on Article 11 - Decided in favour of the assessee Reopening of assessment - Held that:- There is no material to indicate as to how the inclusion of interest on income tax refund under Article 11 was incorrect which led the AO to issue notice u/s 148. It is an obvious case of change of opinion on the same set of facts which were available before the AO during the course of original assessment proceedings also - the interest on income-tax refund is liable to be taxed under Article 11 at the reduced rate - Decided in favor of the assessee. Interest u/s 234B for non-deposit of Advance tax - Held that:- Assessee in the instant case is a non-resident and by virtue of section 195 all the payments made to the assessee are subjected to deduction of tax at source. Under these circumstances, the assessee cannot be said to have committed any default in not paying the advance tax for which the liability to pay interest u/s 234B could be fastened on it - Decided in favor of assessee. Issues:1. Taxing of interest income on income-tax refund at a higher rate.2. Initiation of reassessment proceedings.3. Levy of interest u/s 234B.Issue 1: Taxing of interest income on income-tax refund at a higher rate:The appeal contested the taxing of interest income on an income-tax refund at a rate of 41% instead of the declared 10% under the India-Netherlands Double Taxation Avoidance Agreement. The Dispute Resolution Panel upheld the Assessing Officer's decision to tax the interest as business profits at 41%. However, the Tribunal referred to precedents and concluded that interest on income-tax refund falls under Article 11 and should be taxed at the reduced rate. The Tribunal overturned the order and allowed this ground of appeal.Issue 2: Initiation of reassessment proceedings:The reassessment proceedings were initiated based on the belief that income had escaped assessment due to the assessee not being taxed at the correct rate. The Tribunal found that the Assessing Officer had accepted the taxability of interest on income-tax refund under Article 11 during the original assessment. Therefore, initiating reassessment proceedings without fresh material was deemed a change of opinion, which was impermissible. Citing the Supreme Court judgment in CIT v. Kelvinator of India Ltd., the Tribunal held the initiation of reassessment proceedings as invalid and allowed this ground of appeal.Issue 3: Levy of interest u/s 234B:The Assessing Officer had levied interest u/s 234B on the non-resident assessee. The Tribunal noted that the assessee, being a non-resident, was subject to tax deduction at source under Section 195. As the assessee had no default in paying advance tax, the liability to pay interest u/s 234B was deemed unwarranted. Referring to relevant sections and precedents, the Tribunal ordered the deletion of the levy of interest u/s 234B, thereby partly allowing the appeal.In conclusion, the Tribunal ruled in favor of the appellant on all three issues, highlighting the correct tax treatment of interest income, the impermissibility of reassessment based on a change of opinion, and the unwarranted levy of interest u/s 234B on the non-resident assessee.