5 - Methodology for Determination of Penalty for Persons liable under Section 48 of the Act - CCI (Determination Of Monetary Penalty) Guidelines, 2024

CHAPTER IV METHODOLOGY FOR DETERMINATION OF PENALTY FOR PERSONS LIABLE UNDER SECTION 48 OF THE ACT 5 . (1) The Commission may impose penalty on persons, under Section 48(1) or 48(3) of the Act, as the case may be, which shall not be more than ten percent of the average income of the person for the last three preceding financial years. (2) In determining the percentage of the average income to be considered in a given case, the Commission may have due regard to all or any of the following factors: - a. nature and gravity of contravention by the company, for whose conduct such person has been held liable under Section 48 of the Act; b. role, extent and duration of involvement of such person in the contravening conduct; c. extent of cooperation by the person during the Director General s investigation or the Commission s proceedings; d. repeated contravention; e. furnishing of cogent evidence showing that his or her involvement in the contravention was substantially limited; and/ or f. any other factor which the Commission may deem appropriate in the facts and circumstances of each case. (3) For determining the average income of the person, the gross total income as per the income tax returns filed under the Income Tax Act, 1961 and rules framed thereunder shall be considered. Such gross total income would exclude: (a) income from house property; and (b) income from capital gains. Further, the Commission shall consider income tax returns of the person for the same years as that of the company for whose conduct such person has been held liable. (4) Where income tax returns of the person for such period or years are not available, the total income as certified by a Chartered Accountant, supported by way of an affidavit by such person, shall be considered. (5) In cases where the contravention pertains to an anti-competitive agreement entered into by a cartel, the Commission may levy penalty on a person in terms of proviso to Section 48(1) or Section 48(3) of the Act, as the case may be, with due regard to factors mentioned at paragraph 5(2) of these guidelines.