2015 (12) TMI 285

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..... ITA No. 207 / 2013 and assessee had preferred cross objection in CO 32 / 2013 and they are taken up together and disposed off by a common order for the sake of convenience. ITA No. 207 / 2013 - Revenue Appeal 3. The only issue to be decided in this appeal is as to whether the Learned CITA is justified in considering foreign income at average exchange rate of conversion during the year when credit for tax deducted at source is given based on the actual exchange rate prevailing on the date of transaction. 3.1. The brief facts of this appeal is that the assessee was in receipt of 127613 Oman Rial outside India and chose to bring the same into India during the assessment year under appeal. The Learned AO adopted the exchange rate prevailing .....

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..... he average exchange rate of conversion during the year. We hold that the provisions of Rule 26 and Rule 115 of Income Tax Rules provide computation mechanism for conversion of foreign currency into Indian currency in respect of each source of income. Hence we deem it fit and appropriate in the interest of justice and fair play to set aside this issue to the file of the Learned AO to determine the foreign income in accordance with Rule 26 and Rule 115 of Income Tax Rules depending upon the nature of income. We also direct that in case the assessee is able to produce any other fresh evidence to determine the foreign income based on exchange rate prevailing on the date of income, the same need to be considered by the Learned AO while framing t .....

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..... profession". Provided that nothing contained in this sub-section shall apply in case the aforesaid gross receipts paid or payable exceed an amount of forty lakh rupees." In view of the aforesaid provision, we hold that the action of the lower authorities in adopting the presumptive rate of taxation u/s 44AD in the facts and circumstances of the case is not appreciated and accordingly the cross objection no. 1 of the assessee is allowed. 6. The next issue to be decided in the cross objection of the assessee is that the Learned CIT(A) had not considered the effect of Double Taxation Avoidance Agreement (DTAA) between India and Oman for the purpose of assessment of foreign income of the assessee. 7. We find lot of force in the cross objec .....

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