2011 (9) TMI 1006 - AT - Income Tax

Mistake apparent from records under section 154 - rectification of mistake - change in taxability of interest of income tax refund - assessee was deemed to have a PE in India - Held that - We hold that the interest on income-tax refund is not effectively connected with permanent establishment either on the basis of asset-test or activity-test. Accordingly it is held that this part of the interest is taxable under para 2 of Article 11. Ground No. 2 raised by the assessee is accordingly allowed. Since the assessee succeeds on ground No. 2, the other grounds are not being adjudicated being academic in nature.

Summary

Issues:
1. Taxability of interest on income tax refund under section 154 of Income Tax Act, 1961.
2. Connection of interest on income tax refund to Permanent Establishment (PE).
3. Method of taxation for interest on income tax refund connected to PE.

Analysis:

Issue 1:
The appeal was filed against the order of the CIT(A)-10, Mumbai, related to the assessment year 2003-04, challenging the taxability of interest on income tax refund under section 154 of the Income Tax Act, 1961. The appellant contended that the change in taxability was not a mistake apparent from the records.

Issue 2:
The Assessing Officer (A.O.) held that the interest income on the tax refund was effectively connected to the alleged PE in India, leading to its taxation at a higher rate applicable to business income under the India-Netherlands tax treaty. The CIT(A) upheld this decision, attributing the interest to the business activity of the assessee as per the treaty's provisions.

Issue 3:
The appellant argued that the interest on income tax refund connected to the PE should be taxable on a net basis, challenging the application of a higher tax rate on the gross amount of interest income. The Tribunal referred to a Special Bench decision regarding the taxability of interest on income-tax refund and concluded that such interest was not effectively connected with the PE, thus allowing the appellant's appeal on this ground.

The Tribunal held that the interest on income-tax refund was not effectively connected with the PE based on the asset-test and activity-test, thereby ruling that this part of the interest should be taxable under a specific article of the treaty. As the appellant succeeded on this ground, the other issues were not adjudicated. Consequently, the appeal filed by the assessee was allowed, and the decision was pronounced on September 21, 2011.