Sec 159 – Publication of information in respect of persons in certain cases

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Sec 159 – Publication of information in respect of persons in certain cases 2017-04-14T02:05:53+00:00

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  • Miloni ShahMiloni Shah
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    (1) If the Commissioner, or any other officer authorised by him in this behalf, is of the opinion that it is necessary or expedient in the public interest to publish the name of any person and any other particulars relating to any proceedings or prosecution under this Act in respect of such person, it may cause to be published such name and particulars in such manner as it thinks fit.
    (2) No publication under this section shall be made in relation to any penalty imposed under this Act until the time for presenting an appeal to the Appellate Authority under section 107 has expired without an appeal having been presented or the appeal, if presented, has been disposed of.
    Explanation.–In the case of firm, company or other association of persons, the names of the partners of the firm, directors, managing agents, secretaries and treasurers or managers of the company, or the members of the association, as the case may be, may also be published if, in the opinion of the Commissioner, or any other officer authorised by him in this behalf, circumstances of the case justify it.
    Priya MadrechaPriya Madrecha
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    159.1  Introduction
    (i)    This provision confers powers on the Competent Authority to publish the names and other details of persons in default, as information to the public.
    (ii)    This provision also discusses the persons, whose names can be published, if proceedings relate to a company / firm / association of persons. 159.2  Analysis
    Powers to publish details:
    (i)    The Competent Authority may ensure that the following details are published:
         Names of any person (and)
     Other particulars relating to proceedings or prosecutions under the Act, if related to such person.
    (ii)    The decision to publish is based on the opinion of the Competent Authority that it is essential or beneficial in the public interest to do so.
    (iii)    As the provision indicates that the Competent Authority “can decide to publish in such manner as it thinks fit”, Competent Authority can decide:
         the category of proceedings / prosecution cases to be published
         the category of persons whose details to be published
         the extent of particulars to be published
         the manner of publishing,
         the media wherein the information to be published
    (iv)    In addition, the Competent Authority may also decide to publish the following:
    Nature of Organisation     Additional details
    In case of Firm     Names of partners
    In case of Company     Names of directors / Managing Agents /
    Secretaries & Treasurers / Managers
    In case of Association of Persons     Names of the members
    Note: However, the additional details can be published only if the Competent Authority opines that the circumstances of the case justify it.
    (v)    Exception: However, publication can be made in relation to imposition of penalty, only when the following conditions are satisfied:
     The time for presenting an appeal to the First Appellate Authority (u/s 107) has expired and the persons involved, did not present any appeal (OR)
     The appeal is presented and it is disposed of (against such persons). 159.3 Comparative review
    Similar Provisions as above find place in current laws as under:
    Law     Distinction in the GST law
    Central Excise
    (Sec.37E)     The provisions are similar to Sec.37E.
    However, in the present Central Excise Legislation, as there is a provision to appeal directly to CESTAT against the order of Commissioner, the time limit in relation to publishing information about penalty also includes the time for appeals before CESTAT.
    In the GST law, there is no such provision for direct appeal to Tribunal and so time limit for appeals before Tribunal is omitted.
    Central Excise
    (Sec.9B)     In the Current Excise Law, as per Sec.9B, Courts have powers to publish the information about conviction of the persons and other information (as mentioned in Sec.9B). However, in the present GST legislation, no such powers are conferred on the Courts.
    In fact, there is a Circular No.1009/16/2015 – CX dt. 23.10.15, which insists that the power to publish information is being exercised very sparingly by the Courts and has given a clear direction that in deserving cases, the department should make a prayer to the Court to invoke this Section in respect of all persons who are convicted under the Act.
    Service     Tax (Sec.73D)     As per current service tax provisions, the names and the particulars to be published and the manner in which it has to be published are as prescribed
    (by the Service Tax (Publication of Names) Rules 2008).
    Law     Distinction in the GST law
    In the above rules, the situations for publication and the detailed process flow along with documentation are prescribed.
    The words “as prescribed” do not find place in the GST law.
    This leaves the decision to publish solely to the discretion of the Competent Authority. Further, there are no enabling provisions u/s 164 to confer powers to the Governments to frame rules for such publication. Sec.165 has also not listed out the specific areas wherein the Board / Commissioner SGST can frame regulations.
    VAT Laws     Similar provisions as that of the GST Law are enacted as part of the existing State VAT Laws, but in certain Stat VAT Laws, the powers can be exercised subject to such conditions as may be prescribed. (For e.g.
    Sec.79 of the TNVAT Act, 2006)
    159.4    Related provisions
    Statute      Section     /
    Rule / Form      Description     Remarks
    GST     Section 107     Time Limit for appeal before First Appellate
    Authority     Information on the penalty imposed on a person can be published only if the time limit for appeals before First Adjudicating Authority is over. So Sec.107 is relevant.
    159.5    FAQs
    Q1. Should prosecution proceedings alone be published?
    Ans:  No. Sec.159 uses the words “any proceedings or prosecution”. Hence, even a normal adjudication proceeding can be published if the competent authority thinks fit.
    Q2. Is there any guideline available for deciding the situations in which information must be published?
    Ans:  No. As per the section, the competent authority may form his own opinion and may decide to publish the name and other particulars in such manner as he thinks fit. It is expected that the Government may frame guidelines on publishing information and manner of such publishing.
    Q3. What are the media in which the details must be published?
    Ans:  Sec.159 is silent on such aspect and it gives the power to the competent authority to decide the manner in which it has to be published (Unless certain guidelines are spelt out by the government).
    Q4. Whether the publishing is to be done only after the adjudication order is passed?
    Ans: Sec.159 indicates that the competent authority may publish names and other particulars, in relation to any proceeding or prosecution. There is no condition that the order needs to be passed to publish the details.
    Q5. Can the names of persons alone be published by the competent authority?
    Ans:  Sec.159 indicates the names of any person and any other particulars relating to such person, in respect of such proceedings may be given. So, it is imperative to give the other relevant particulars of the proceedings also.
    159.6 MCQs
    Q1.     Who can publish the names and particulars
    (a)    Courts
    (b)    Appellate Authority
    (c)    Any Adjudicating Authority
    (d)    Competent Authority
    Q2.     Names and particulars relating to prosecutions can be published –
    (a)    After Courts Approval
    (b)    After expiry of appeal to First Appellate Authority
    (c)    At the discretion of the Competent Authority
    (d)    Cannot be published at all
    Q3. In case of proceedings against the Companies, then the details that can be published are
    (a)    Names and Addresses of the Directors
    (b)    Only Names of the Directors
    (c)    Details of Directors and Auditors
    (d)    Photographs of the Directors

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