TMI Blog2023 (9) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia. The only condition was that sale proceeds should be invested in a residential property within the stipulated period of time. We find that the language of Section 54(F) of the Act prior to the amendment is neither ambiguous nor vague. The intention of the legislature to insert the words in India with effect from 1st April 2015 is not uncertain or confusing and hence the applicability of the amendment cannot but be prospective. It is also clear that Petitioner has not filed the revised returns under Section 139(5) of the Act but he has admitted to an inadvertent error in declaring total income as Nil vide a rectification application. Admittedly, he is entitled to a refund of Rs. 72,370/- for excess amount of tax deduction at source. The sale deed placed on record also discloses the exact amount of consideration. It is undisputed that Petitioner has deposited Rs. 75,00,000/- in the CGAS. In the circumstances, it is clear that rejection of the revision petition on the grounds mentioned therein cannot be sustained. Petition deserves to be allowed. - K.R. SHRIRAM DR. N. K. GOKHALE, JJ. For the Petitioner : Mr. Devendra Jain with Radha Halbe and Namita Chandra. For the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for release of an amount of Rs. 75,00,000/- which was deposited in the CGAS. Respondent No. 1 considered his application but rejected his claim on the ground that Petitioner was not eligible for deduction under Section 54 of the Act as the investment was made in a house property situated outside India. Respondent No. 1 relied upon an amendment in Section 54(1) of the Act by the Finance (No. 2) Act, 2014 which inserted the words 'in India' in the said provision. It is this rejection order which is assailed in the present Petition. 5. At the very outset, Mr. Devendra Jain learned Counsel appearing for Petitioner fairly concedes that the Commissioner, though rightly assumed jurisdiction over Petitioner s Revision Application, however, failed to consider the position of law settled by various binding precedents. He also relied upon the provision of Section 54(1) of the Act as it existed prior to the amendment by the Finance (No. 2) Act, 2014 to canvass that the only condition to be fulfilled to claim deduction under Section 54 of the Act at the relevant assessment year, was that a new residential house be purchased within the prescribed time dehors any condition as to the locat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... test fails in the case of a non-resident if he constructs or purchases a new residential house outside India and transfers the same within three years from the purchase or construction. In response to contention of Petitioner regarding the amendment to the Finance (No. 2) Act, 2014 having prospective effect, it is argued by Respondent that the insertion i.e., the amendment was only clarificatory in nature and as such, has retrospective effect. To buttress this argument, Mr. Sharma contends that in Section 5(2) of the Act the words in India were already in operation in the scheme of the Act. Thus, on the basis of the aforesaid arguments, Respondent has justified the rejection of Petitioner s Revision Petition. 7. We have heard the learned counsel for the parties and perused the impugned order. It is an admitted position that Petitioner has sold his house property in India and invested the sale proceeds in a residential house in USA, out of the capital gain on the sale of the property in India, within the specified period. Petitioner has thus satisfied the conditions stipulated in Section 54(F) of the Act as it stood and was applicable to the relevant Assessment Year. The language of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement, the amendment is not merely a clarification, but a substantive amendment, which shall apply prospectively. In the matter of Virtual Soft Systems Limited v. CIT (2007) 289 ITR 83 (SC) , the Apex Court has gone further and held that 'even if the statute does contain such a statement, the Court will not regard itself as being bound by the statement, but will proceed to analyse the nature of the amendment and then conclude whether it is in reality clarificatory provision or is intended to change the law and apply to future periods.' 10. In the context of the above-mentioned position of settled law, we have examined the interplay of Section 5(2) and Section 54(F) of the Act, prior and post-amendment. As reproduced above, 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 In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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