DISCLOSURE OF INFORMATION BY A PUBLIC SERVANT UNDER MODEL GST LAW

[Mr. M. GOVINDARAJAN]

Public Servant

Section 146 of Model Goods and Services Tax, 2016 (‘Act’ for short) provides that all persons discharging functions under the Act shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code.

Section 21 of the Indian Penal Code defines the term ‘public servant’ as denoting a person falling under any of the descriptions as below-

• Every Commissioned Officer in the Military,Naval or Air Forces of India;
• Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;
• Every officer of a Court of Justice (including a liquidator, receiver or commissioner) whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties;
• Every juryman, assessor, or member of a panchayat assist­ing a Court of Justice or public servant;
•  Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;
• Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;
• Every officer ofthe Government whose duty it is, as such officer, to prevent offences, to give information of of­fences, to bring offenders to justice, or to protect the public health, safety or convenience;
• Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf ofthe Govern­ment, or to make any survey, assessment or contract on behalf ofthe Government, or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests ofthe Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Govern­ment, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government;
• Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenti­cate or keep any document for the ascertaining of the rights of the people of any village, town or district;
• Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an elec­toral roll or to conduct an election or part of an election;
• Every person-

• in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
• in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the Companies Act, 1956.

Illustration - A Municipal Commissioner is a public servant.

Explanation 1.-Persons falling under any of the above descrip­tions are public servants, whether appointed by the Government or not.

Explanation 2.-Wherever the words “public servant” occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation. 

Explanation 3.-The word “election” denotes an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of selection to which is by, or under, any law prescribed as by election.

Indemnity

Section 147 provides that no legal proceedings shall lie against any GST officer for anything which is done or intended to be done in good faith under the Act or the rules.   No departmental proceedings shall lie against any GST officer for passing any adjudication order or appellate order in good faith under the Act or the rules.

Confidentiality of information

Section 148(1) provides that all particulars contained in any statement made, return furnished or accounts or documents produced in accordance with the Act or in any record of evidence given in the course of any proceedings under the Act, other than proceeding before a Criminal Court, or in any record of any proceedings under the Act shall, save as provided in Section 148(4), be treated as confidential.

GST Officer not to produce information

Section 148(2) provides that notwithstanding anything contained in the Indian Evidence Act, 1872, no court shall save as aforesaid, be entitled to require any GST officer to produce before it or to give evidence before it in respect of particulars as referred to in Section 148 (1).

Particulars not applicable to Section 148(1)

Section 148(4) provides that nothing contained in Section 148 shall apply to the disclosure of any such particulars-

• in respect of any such statement, return, accounts, documents, evidence, affidavit or deposition, for the purpose of any prosecution under-

• the Indian Penal Code; or
• the Prevention of Corruption Act, 1988; or
• the Act; or
• any other law for the time being in force; or

• to the Central Government or the State Government or to any person acting in the execution of this Act, for verification of such particulars or for the purpose of carrying out the object of the Act; or
• when such disclosure is occasioned by the lawful employment under the Act of any process for the service of any notice or the recovery of any demand; or
• to a Civil Court or Tribunal constituted under any Central law in any suit or proceeding, to which the Government or any authority under the Act is a party, which relates to any matter arising out of any proceeding under the Act or under any other law for the time being in force authorizing any such authority to exercise any powers there under; or
• to any officer appointed for the purpose of audit of tax receipts or refunds of the tax imposed by the Act; or
• where such particulars are relevant for the purpose of any inquiry into the conduct of any GST officer, to any person or persons appointed as inquiry officer under any relevant law; or
• to an officer of the Central Government or any State Government as may be necessary for the purpose of enabling that Government to levy or realize any tax or duty imposed by it; or
• when such disclosure is occasioned by the lawful exercise by a public servant or any statutory authority, of his or its powers under any law for the time being in force; or
• relevant to any inquiry into a charge of misconduct in connection with any proceedings under the Act against-

• a practicing Advocate;
• tax practitioner;
• a practicing cost accountant;
• a practicing chartered accountant;
• a practicing company secretary

to the authority empowered to take disciplinary action against the members practicing the profession of a legal practitioner, cost accountant, chartered accountant or company secretary as the case may be; or

• to any agency appointed for the purposes of data entry on any automated system or for the purpose of operating, upgrading or maintaining any automated system where such agency is contractually bound not to use or disclose such particulars except for the aforesaid purposes; or
• to an officer of the Central Government or any State Government as may be necessary for the purpose of any other law in force in India; and
• to any class of tax payers or class of transactions for publication, if, in the opinion of the competent authority, it is desirable in the public interest, to publish such information.

Penalty

Section 148 (3) provides that save as provided in Section 148 (4), if any GST officer discloses any of the particulars referred to in Section 148(1), he shall, on conviction, be punished with imprisonment which may extended to 6 months or with fine or with both.  No prosecution shall be instituted under this Section except with the previous sanction of the Central Government or the State Government, as the case may be.