3 October 2024 - Legal Updates

1. Jharkhand HC Commutes Death Sentence of Constable who Opened Fire on Milk Supplier For Demanding Dues, Says Sec. 27 Arms Act Not Attracted

The Jharkhand High Court has commuted the Death sentence imposed on a Railway police constable who opened fire on the family of his neighbour-milk supplier, for demanding dues.

While doing so, the court held that since the constable had used his service pistol, conviction under section 27 of the Arms Act 1959 cannot stand.

The court clarified that section 27 of the ACT does not apply in all cases involving the use of firearms, but is limited to instances where the firing is in violation of Section 5 or Section 7 of the Arms Act, such as firing by an unlicensed individual or by a prohibited arm. In this case, the accused had used a service pistol, legally issued to him, thus making the conviction under section 27 of the Arms Act unsustainable.

The division bench comprising Justices Ananda Sen and Gautam Kumar Choudhary observed, “Before entering into the issue of death sentence, on the face of it, finding and sentence under Section 27 of the Arms Act is an error apparent on record. Section 27 of the Arms Act does not apply in all cases of firing, but is limited to only such cases where it is in violation of Section 5 and 7 of the Arms Act, 1959. Thus, where it is a firing by one having no license, or by prohibited arms, then it will invite conviction under Section 27 of the Arms Act. In the present case, firing was resorted to by a service pistol by the accused to which it was issued, therefore, it is not a case of either firing by an unlicensed or prohibited arm and, so conviction under Section 27 of the Arms Act is not sustainable.”

The case involved a Death Reference filed by the State and a Criminal Appeal by the accused, arising from a Sessions Court judgement where the appellant was sentenced to death under Sections 302 and 307 of the IPC and Section 27 of the Arms Act. The appellant, a constable in the Railway Protection Force, had shot and killed three members of a family, including the informant's parents and one sister, while injuring the informant and another sister, Suman Devi.

The appellant's defence argued that the trial court had not properly considered the guidelines laid down by the Supreme Court in awarding the death sentence. These guidelines include a balance of factors such as the gravity of the crime, the criminal's potential for reform, and the proportionality of the punishment.

The defence also pointed out that the appellant had no prior enmity with the victims, no premeditated intent to kill, and that the crime occurred in a moment of emotional disturbance. The appellant was 26 years old with a clean service record, and the dispute had reportedly arisen over a demand for unpaid milk supplied by the victims. It was further argued that the trial court did not take into account the mitigating circumstances and failed to follow the sentencing criteria set forth by the Supreme Court in cases like State of M.P. v. Udham & Others, 2019.

The State, on the other hand, justified the death sentence by highlighting the extreme cruelty of the crime, in which the appellant used his service weapon to fire upon an unarmed family, resulting in three deaths and serious injuries to two others. The State emphasised that the severity of the crime outweighed any mitigating factors, including the appellant's age.

In its ruling, the Court reiterated that while the death penalty remains a legal option in India, it can only be awarded in the rarest of rare cases, as established in Bachan Singh v. State of Punjab and Machhi Singh & Others v. State of Punjab.

The Court concluded, “Considering the above factors like absence of past enmity, absence of preplanning in execution, and offence being the outcome of momentary emotional disturbance, we are of the view that this is a case where the alternative to death sentence is not foreclosed, so as to make it the only available option of sentencing.”

As a result, the Court commuted the death sentence to rigorous imprisonment for a minimum of 25 years without remission, along with a fine of Rs. 10,000 for the offence under Section 302 of the IPC. The conviction under Section 27 of the Arms Act was set aside.

Case- The State of Jharkhand vs. Pawan Kumar Singh

2. Self-Assessment U/S 143 (1) Income Tax Act Doesn’t Quality As Assessment By AO, No Bar on Reopening Assessment U/S 147: Delhi High Court

The Delhi High Court has held that merely because as assesse made self-assessment under section 143(1) of the Income Tax Act 1961, is not reason to preclude reassessment proceedings initiated by the Department.

“The assessment of tax under section 143(1) of the Act is a self-assessment framed by the AO,” observed a bench of Justices Vibhu Bakhru and Swarana Kanta Sharma.

Section 143(1) relates to self-assessment of chargeable income. Section 143(3) pertains to scrutiny assessment by the Assessing Officer (AO) to verify the accuracy and truthfulness of claims and deductions made in a tax return.

Section 147 allows AO to re-assess income that may not have been reported to the tax authorities.

The first proviso thereof states that where an assessment under Section 143(3) or under Section 147 has been made for the relevant AY, no action shall be taken under this section after expiry of 4 years from the end of relevant AY, unless any income chargeable to tax has escaped assessment due to assessee's failure to make a return or truly disclose all material facts.

Thus, if scrutiny assessment is made under Section 143(3), power to re-assessment under Section 147 is to some extent curtailed. So is not the case with respect to self-assessment under Section 143(1).

The petitioner in this case was aggrieved by a notice issued to it under Section 148 of the Income Tax Act in 2018, for reopening its income assessment for AY 2011-12.

Its counsel argued that all material, on the basis of which the assessment was sought to be reopened, was examined in assessment proceedings for the previous AY 2010-11 in which sale advances were received.

It was further submitted that Petitioner had furnished its explanation with regard to its books of accounts for the previous year 2010-11 in connection with the proceedings initiated in respect of AY 2011-12. Therefore, the counsel contended that the AO had all the material on which assessments for the said AY could be framed at the material time.

The AO reasoned that an entity found to be involved in bogus billing had made payments to the Petitioner, leading to an apprehension that the petitioner's income chargeable to tax had escaped assessment.

“The contention that there are no credible reasons for issuing the impugned notice for reopening the assessment for the Assessment Year 2011- 12 is thus insubstantial,” the Court observed at the outset.

It added that Petitioner's contention that all receipts had been taxed during the previous AY 2010-11 is prima facie erroneous and Petitioner's explanation that its books of accounts were available with the AO prior to its assessment does not carry the case any further.

The bench explained that the AO had not assessed the petitioner's income for the Assessment year 2011-12 under Section 143(3) of the Act.

It relied on Indu Lata Rangwala v. Deputy Commissioner of Income Tax (2016) where a division bench of the High Court held that where the return initially filed is processed under Section 143(1) of the Act, and an intimation is sent to an Assessee, it is not an 'assessment' in the strict sense of the term for the purposes of Section 147 of the Act.

“The first proviso to Section 147 of the Act applies only (i) where the initial assessment is under Section 143 (3) of the Ac” it was held.

In this light, the petition was dismissed.

Case- RP Foam Home Pvt. Ltd. vs. Assistant Commissioner of income Tax