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2011 (11) TMI 505 - AT - Income TaxIndia 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-ŕ-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.
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