Treaty rate applies to refund interest, 234B interest is not leviable on non-residents, and forex contract loss is capital in nature.

Interest on an income-tax refund was treated as treaty "interest" under the India-USA DTAA and taxable only at the treaty rate, so domestic surcharge and cess could not be added; the matter was restored for application of that rate. For a non-resident whose income was subject to tax deduction at source, interest under section 234B was held not leviable merely because the payer failed to deduct tax, and the levy was directed to be deleted. Interest under section 234C required factual verification and was remitted for examination. Loss on rollover or cancellation of forward foreign exchange contracts was treated as capital loss, not income from other sources, and the Revenue's challenge failed.

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Issues: (i) Whether interest received on income-tax refund under section 244A is taxable at the concessional rate under Article 11 of the India-USA Double Taxation Avoidance Agreement; (ii) whether interest under section 234B is leviable on a non-resident assessee where tax was deductible at source on the relevant income; (iii) whether interest under section 234C is chargeable and required verification on the facts; and (iv) whether loss arising from rollover or cancellation of forward foreign exchange contracts is to be treated as capital loss.

Issue (i): Whether interest received on income-tax refund under section 244A is taxable at the concessional rate under Article 11 of the India-USA Double Taxation Avoidance Agreement.

Analysis: The refund interest was held to fall within the treaty definition of interest and the issue was treated as covered by the Special Bench decision in Clough Engineering Ltd. and the jurisdictional High Court decision in Credit Agricole Indosuez. On that footing, the rate applicable was to be taken from the treaty and not enhanced by domestic surcharge and cess over and above the treaty rate.

Conclusion: In favour of the assessee. The matter was restored to the Assessing Officer to apply the treaty rate under the India-USA DTAA.

Issue (ii): Whether interest under section 234B is leviable on a non-resident assessee where tax was deductible at source on the relevant income.

Analysis: The applicable law for the assessment year did not require advance tax from the non-resident assessee where the tax on the income was deductible at source. Following the jurisdictional High Court, failure of the payer to deduct tax at source could not fasten interest liability under section 234B on the payee assessee.

Conclusion: In favour of the assessee. The interest levied under section 234B was directed to be deleted.

Issue (iii): Whether interest under section 234C is chargeable and required verification on the facts.

Analysis: The assessee's case was that no advance tax was payable and that the working of tax due on returned income needed factual verification. The issue was therefore not finally decided on merits and was sent back for examination in accordance with law.

Conclusion: No final adjudication on merits was recorded. The issue was restored to the Assessing Officer for verification.

Issue (iv): Whether loss arising from rollover or cancellation of forward foreign exchange contracts is to be treated as capital loss.

Analysis: The issue had already been decided in the assessee's own earlier years and the same reasoning was followed. The foreign exchange contract loss was treated as arising on capital account and not as income from other sources.

Conclusion: In favour of the assessee. The Revenue's challenge was rejected.

Final Conclusion: The assessee obtained relief on the principal tax issues, the Revenue's appeal failed, and the cross-objection did not survive independently.

Ratio Decidendi: Interest on income-tax refund may fall within treaty "interest" and be taxed only at the treaty rate, and where tax is deductible at source from a non-resident's income, failure of deduction by the payer does not by itself attract interest under section 234B.

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