Chandra Poojari, Accountant Member - These appeals by the assessee are directed against the common order of the Commissioner of Income-tax(Appeals) dated 25.3.2014 for the assessment years 2000-01, 2001-02 and 2002-03, respectively.

2. The facts of the case are that the assessee is a company registered under the laws of Italy. The assessee is a non-resident as per the Income-tax Act. It is engaged in the business of designing, building and supplying full range of plant solutions on different types of packages such as turnkey, engineering and individual components, worldwide and is a global power generation player and covers the entire power generation spectrum.

2.1 The assessee and its subsidiary company Ansaldo Services Pvt. Limited (ASPL) entered into separate contracts with NLC and executed them during the assessment years under consideration.
2.2 The CIT(A) passed an order on 29/09/2011 u/s. 251 of the I.T. Act upholding the additions made by the AO to the income of the assessee from NLC contracts. The CIT(A) also held that profit and tax should be determined by following the judgment dated 11.05.2001 of the ITAT, Chennai in ITA No. 411/Mds/2006. Accordingly, the assessment orders dated 27.02.2004, 31.03.2005 and 24.03.2006 were modified and corresponding fresh orders were passed by the AO on 25.07.2012, determining therein Rs. 24,83,630/- (including interest of Rs. 4,13,938/- u/s. 244A, Rs. 12,25,09,487/- including interest of Rs. 4,09,30,215/- u/s. 244A and Rs. 4,29,85,321/- including interest Rs. 1,66,32,532/- u/s. 244A, respectively as refund payable to the assessee. However, the AO deducted tax at source u/s. 195(1) of the Act @ 42.024% on the amount of 244A interest to the tune of Rs. l,73,953/-, Rs. l,72,00,513/- and Rs. 69,89,655/-, respectively. Against this, the assessee carried the matter before the CIT(A) challenging the deduction of tax at source u/s.195(1) of the Act in respect of refund including the interest u/s. 244A while giving effect to the Tribunal's order.

3. The CIT(Appeals) observed that Article 12 of the DTAA, elaborated this type of interest. In the instant case, interest involved emanates from the income-tax refund payable to the assessee. This kind of interest is not covered by the definition of 'interest' provided in Article 12(4) of the DTAA. Once the interest is provided in Article 12(4) of the DTAA, Article 12(1) shall come to play. Taxing the 244A interest on the income-tax refund is therefore well within the ambit of the Article 12 of the DTAA. Accordingly, the CIT(Appeals) confirmed the orders of the AO. Aggrieved by this, the assessee is in appeal before us.

4. The ld. AR submitted that the impugned interest is covered by Article 12 of the DTAA between India and Italy and the same issue was considered by the Tribunal, Special Bench in the case of Clough Engg. Ltd. [IT Appeal Nos. 4771 & 4986 (Delhi) of 2007], wherein it was held as under:

"11.4 Thus, we are again left with the fundamental question as to whether the debt-claim in this case can be said to be effectively connected with the PE. We have already held that the claim is connected with the PE in the sense that it has arisen on account of tax deduction at source from the receipts of the PE. However, it is also a fact that payment of tax is the responsibility of the foreign company. The same is determined after computation of its income and the tax forms not an expenditure for earning the income but an item of appropriation of profit. Therefore, even if the debt is connected with the receipts of the PE, it cannot be said to be effectively connected with such receipts because the responsibility to pay the tax lies on the shoulders of the assessee-company from the final profit ascertained as on the last date of the previous year and on closing the books of account. It is for the company to pay the tax from any source available with it. It so happened in this case that the tax got automatically deducted from the receipts of the PE by operation of law. Such collection of tax by force of law would not establish effective connection of the indebtedness with the PE as ultimately it is only the appropriation of profit of the assessee company. However, we may add that we do not venture to say that the interest income has to be necessarily business income in nature for establishing the effective connection with the PE because that would render provision contained in paragraph 4 of Article XI redundant. Thus, there may be cases where interest may be taxable under the Act under the residuary head and yet be effectively connected with 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. However, the same cannot be said in respect of interest on income-tax refund. Such interest is not effectively connected with PE either on the basis of asset-test or activity-test. Accordingly, it is held that this part of interest is taxable under paragraph no. 2 of Article XI. Thus, the ground referred to the Special Bench is partly allowed. The Division Bench shall dispose off the appeal in conformity with this order."

4.1 He also relied on the decision of the Tribunal, Mumbai Bench in the case of DHL Operations B.V. v. Dy. DIT (International Taxations) [IT Appeal No. 183 (Mum.) of 2010, dated 21-9-2011] for the A.Y. 2003-04. Further, he submitted that the above decision was confirmed by the Bombay High Court in the case of DHL Operations B.V. v.DIT [IT Appeal No. 431 of 2012, dated 17-7-2014] wherein the High Court confirmed the decision of the Tribunal in DHL Operations BV (supra). According to him, refund due and payable to the assessee is debt owed and payable by the Revenue, as held by the Supreme Court in the case of Union of India v. Tata Chemicals Ltd. [2014] 363 ITR 658/222 Taxman 225 (Mag.)/43 taxmann.com 240. Further he submitted that interest on income-tax refund is not effectively connected with PE either on the basis of asset-test or activity- test. This part of interest is not taxable in view of Article 12 of DTAA between India and Italy. He also relied on the judgment of Mumbai Bench in the case of Bechtel International Inc. v.Asstt. DIT (International Taxation) [2012] 135 ITD 377/19 taxmann.com 179, wherein it was held as under:

'10. We have given a careful consideration to the rival submissions. We are of the view that in the light of the commentary of Klaus vogel on the reason for use of the word "attributable" in the US conventions, they are in no way different from the expression "effectively connected". US Model convention deviates from OECD and UN Model Conventions (MCs) because the term "effectively connected" is a technical term of US domestic tax law and that it is defined in detail in I.R.C. Sec. 864 (c) whereas "attributable", though used in US domestic tax law as well, is not defined. If US MC were to refer to "effectively connected", the question would arise whether that term would be required by Article 3(2) MC to be interpreted on the US side in accordance with its definition under US tax law, Use of the term "attributable" avoids that problem and that is the reason the expression "Attributable" is used in US Model Conventions. Therefore the term appearing in US Model Conventions have the same meaning as the expression "Effectively Connected". The expression "Attributable" as used in Article 11(5) of the India-USA DTAA has therefore to be construed as equivalent to "Effectively connected". The technical explanation referred to by the learned counsel for the Assessee whereby it has been observed that the term "Attributable" is to be given a narrower meaning than the expression "Effectively Connected", we find that the said technical explanation is in the context of attribution of profits of the PE and is relevant to taxation of an Indian enterprise having PE in USA. Nevertheless, the expression "attributable" even if held to be equivalent to the expression "effectively connected" in the light of the commentary by Klaus Vogel, referred to above, then the case of the Assessee would stand squarely covered in favour of the Assessee by the decision of the Special Bench in the case of Clough Engineering (supra). Following the same, we hold that the interest income on income tax refund is to be charged to tax only under Article 11(2) of the Indo-USA DTAA and not under Article 11 (5) thereof.'

5. The ld. DR relied on the orders of the lower authorities and also the order of the Tribunal, Delhi Bench in the case of B.J. Services Co. Middle East Ltd. v. Asstt. CIT [2009] 29 SOT 312, wherein it was held as under:

"There was no dispute to the fact that (1) the assessee was a non-resident, having a PE in India; (2) The assessee was carrying on business in India through a PE situated in India; (3) The interest was effectively connected with such PE in India; ordinarily para 2 of article 12 would have been made applicable. However, in terms of para 6 of article 12, provision of para 2 of this article would not apply if the beneficial owner of the interest carries on business in India in which the interest arises through a PE situated in India and the debt-claim in respect of which the interest is paid is effectively connected with such PE in India. In such cases provision of article 7 (business profit) of DTAA would apply. Since there was no dispute to the fact that the assessee though being a resident of the UK was carrying on business in India through a PE situated in India and the interest was effectively connected with such PE in India, therefore, in terms of para 6 of article 12, such interest could be taxed as business profit under article 7. In view of overriding provision of para 6 of article 12, the assessee could not take benefit of para 2 of article 12 so as to pay tax on such interest at the rate of 15 per cent. Rather in terms of para 6 of article 12, the same was chargeable under article 7 as business profit. Accordingly, the assessee was not entitled to be taxed under para 2 of article 12 but was rightly taxed under para 6 of article 12."

6. We have heard the parties and perused the material on record. Article 12 of DTAA between India and Italy reads as under:

"Article 12
Interest
1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in both the Contracting States.

2. Notwithstanding the provisions of paragraph 1, the tax chargeable in a Contracting State on interest arising in that State and paid to a resident of the other Contracting State in respect of loans or debts shall not exceed 15 per cent of the gross amount of such interest.
3. Notwithstanding the provisions of paragraph 2, interest arising in a Contracting State shall be exempt from tax in that State if:

4. The term "interest" as used in this Article means income from Government securities, bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits and debt-claims of every kind as well as all other income assimilated to income from money lent by the taxation law of the State in which the income arises.

5. The provisions of paragraphs 1 and 2 not apply if the recipient of the interest, being a resident of a Contracting State, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such a case, the interest shall be taxable in that other Contracting State according to its own law.

6. Interest shall be deemed to arise in a Contracting State when the payer is that State itself, a political or administrative subdivision, a local authority or a resident of that State. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.

7. Where, owing to a special relationship between the payer and the recipient or between both of them and some other person, the amount of the interest paid, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the recipient in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the payments shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Convention."

6.1 The contention of the assessee is that interest on refund of tax is exempt from tax in India. When we go through the definition of interest under Article 12(4) of the above, this kind of interest is not envisaged in the definition of interest, therein. Being so, the lower authorities are justified in imposing TDS u/s. 244A of the Act, on the income tax refund and the case laws relied on by the ld. AR are not delivered with reference to DTAA between Government of India and Government of Italy. As such, those case laws relied on by the assessee have no relevance. In view of this, we are inclined to uphold the arguments of ld. DR and confirm the order of the CIT(Appeals).