Re: Education Cess-Retro Amendment.

Whether the assessment can be opened for the years in which assessee has opted under DTVSV Scheme in case of retrospective amendment of disallowance of education cess while computing Business income, wherein Education cess was not the covered matter under VSV.Whether due to amendment, assessment can be opened to disallow the claim of education cess.

In Sudhir S.Mehta ( 2003 ) 265 ITR 548 (Bom) (HC)  the Court held that where amending law received assent of President subsequent to date of Tribunal’s order ,  on the basis of retrospective amendment , the Tribunal’s order cannot be said  to suffer from mistake apparent from record .    As per section 5 (3)  of the Direct Tax Vivad Se Vishwas Act , 2020 the order shall  be conclusive and such order shall not be reopened in any other proceedings  under the Income -tax Act  or under any other law  ----- . Accordingly the due to amendment , the assessment settled under DTVSV cannot be reopened . In Pravin Kumar Bhogilal Shah v. ITO ( 2012 ) 66 DTR 236 ( Guj) ( HC) , Vinayak Construction v.ITO ( 2012 ) 66 ITR 233 ( Guj) ( HC) , Ganesh Housing Corporation  Ltd v. Dy.CIT ( 2013) 350 ITR 131 ( Guj) (HC)  the Court held that reassessment based on retrospective amendment is not valid .  

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