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TMI Blog2024 (7) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... that of the Jurisdictional High Court wherein it has been held that the exemption u/s 54F would be available on property purchased outside India in the period prior to 01.04.2015 as the amendment is prospective in nature and cannot be applied to the transactions prior to 01.04.2015. As relying on Hemant Dinkar Kandlur [ 2023 (9) TMI 950 - BOMBAY HIGH COURT] we hold that for the year under consideration the words in India cannot be read into the provisions of section 54F and hence, the assessee is entitled to claim exemption u/s 54F in respect of the investment made in the residential property in Ontario, Canada. Appeal filed by the assessee is allowed. - Ms. Kavitha Rajagopal, Judicial Member And Smt. Renu Jauhri, Accountant Member For th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... THE ABOVEAND IN THE ALTERNATE (II) AS REGARDS DISALLOWANCE OF DEDUCTION u/s. 54 OF THE I.T.ACT. a) That the learned . . erroneously disallowed deduction/exemption u/s. 54 in respect of investment made in purchase of residential house in Ontario in Canada despite complying with all the conditions laid down in section 54 of the Act. b) That the learned A.O. failed to appreciate when it was specifically brought to his notice that Sec.54 (1) was amended by Finance (No.2) Act, 2014 w.e.f. 01-04-2015 i.e. from A.Y. 2015-16. By this amendment the words constructed one residential house in India were substituted, and therefore the amendment was prospective. 3. Brief facts of the case are that the assessee is a non-resident Indian during the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Y 2015-16 only being prospective in nature. 5. Ld. AR has submitted various decisions both on the technical ground as well as on the merits. Ld. DR has also relied on a decision of the co-ordinate bench in the case of Shri Farhad Bottelwalla v/s ACIT in ITA No. 1761/Mum/2012. 6. We have heard the rival submissions and considered various judicial pronouncement on the issue. There are several decisions including that of the Jurisdictional High Court wherein it has been held that the exemption u/s 54F would be available on property purchased outside India in the period prior to 01.04.2015 as the amendment is prospective in nature and cannot be applied to the transactions prior to 01.04.2015. 7. In the case of Hemant Dinkar Kandlur v/s CIT(IT)- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re does not aid Respondents. Undoubtedly, any legislation or instrument having the force of law which is clarificatory or explanatory in nature and purport and which seeks to clear doubts or correct an obvious omission in the statute, would generally be retrospective in operation. Hence, it is necessary to identify the nature of amendment, to ascertain whether it is clarificatory in nature or a substantive amendment. It is settled position of law that if a statute is curative or merely clarificatory of the previous law, a retrospective operation thereof is permitted. In order for an amendment to be considered as clarificatory of the previous provision, the pre-amended law ought to have been vague or ambiguous. It is only when it would be im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 5(2) of the Act starts with the words, 'subject to the provisions of this Act........ Thus, even if the words 'in India' appearing in Section 5(2) are read into the unamended Section 54(F) of the Act, yet, the said provisions would always operate subject to the other provisions of the Act including Section 54(F) of the Act. Furthermore, the unamended Section 54(F) of the Act was not at all ambiguous. It expressly and specifically excluded the words 'in India'. The amended provision also does not refer to Section 5(2) of the Act to even remotely suggest it to be a mere clarification. The statute also does not contain any statement that the amendment is merely declaratory or clarificatory or for removal of doubts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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