Amendments to existing lawsLegislation Updates

In exercise of powers conferred by section 29 of the Securities and Exchange Board of India Act, 1992 (15 of 1992), the Central Government vide S.O. 4825(E) notified the Securities and Exchange Board of India (Terms and Conditions of Service of Chairman and Members) Amendment Rules, 2018 on 12-09-2018, to amend the SEBI (Terms and Conditions of Service of Chairman and Members) Rules, 1992, namely:-

2. In the Securities and Exchange Board of India (Terms and Conditions of Service of Chairman and Members) Rules, 1992,-

(i) in rule 3, in sub-rule (2), in the proviso for the word “Member” the words “whole-time member” shall be substituted;

(ii) In rule 19A, in sub-rule (2), the following proviso shall be inserted, namely:-

“Provided that no person shall hold office as the part-time member after he attains the age of seventy years.”

Ministry of Finance

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities and Exchange Board of India (SEBI): G. Mahalingam, whole time Member, in this order granted exemption from application of Section 3(2) of Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011.

An application was filed under Section 11(1) and Section 11(2)(h) of the SEBI Act read with Regulation 11(5) of the SAST Regulations, 2011 seeking exemption from application of Section 3(2) of the SAST Act on acquiring of shares and voting rights in the target company. The matter before the Board was that the promoters were willing to transfer by way of gift all the equity shares of the Target Company to the acquirer trusts. The transferor submitted the grounds on which they seek an exemption. Major grounds being the objective with which the transfer is proposed that is seamless intergenerational transfer of the trust fund in view of the fact that the beneficiaries are family members being non-commercial transaction. The other ground being that the ownership or control of the target company had not been affected. Also, pre and post-acquisition shareholding of promoter group would remain same. The acquirer/transferee confirmed that they have adhered to the Guidelines outlined in the Schedule to the SEBI Circular. Board noted all the grounds and ordered that the Target Company shall continue to be in compliance with the minimum public shareholding requirements under the Securities Contracts Regulation Rules, 1957 and the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015.

Board was of the view that the exemption prayed by the applicants should be granted with certain conditions which the transferor and transferee needs to fulfill. Therefore, exemption from application of Section 3(2) was granted. [Proposed Acquisition of Shares and Voting Rights in Target Company FDC Ltd., In re,2018 SCC OnLine SEBI 156, order dated 21-08-2018]

Legislation UpdatesNotifications

Securities and Exchange Board of India (SEBI), vide circular dated 06-06-2018, SEBI, has, inter alia:

  1. brought to the notice of SEBI registered market intermediaries the various notifications issued by the Government of India on Prevention of Money Laundering Rules, relating to making Aadhaar number issued by the Unique Identification Authority of India (UIDAI) and Permanent Account Number (PAN) or Form No. 60, as defined in Income Tax Rules, 1962 mandatory for both new and existing accounts with financial market intermediaries including securities market intermediaries.
  1. SEBI has further clarified in the above mentioned circular that in case PAN is not submitted by any client at the time of opening of account based relationship, one certified copy of an “officially valid document” (OVD) shall be submitted. However, for securities market, in terms of SEBI circular dated 27-04-2007, the requirement of PAN would continue to be mandatory for completing the KYC process.

To regulate the transactions between clients and brokers, SEBI has further, vide circulars dated 12-07-2018 and 27-08-2003, inter alia, mandated that:

  1. Brokers and sub-brokers should not accept cash from the client for purchase of securities and / or give cash against sale of securities to the clients.
  1. Further, it has been mandated that all payments shall be received / made by the stock brokers from / to the clients strictly by account payee crossed cheques/ demand drafts or by way of direct credit into the bank account through electronic fund transfer, or any other mode permitted by the Reserve Bank of India.
  1. In the case of securities also, giving / taking delivery of securities in “demat mode” should be directly to / from the “beneficiary accounts” of the clients except delivery of securities to a recognized entity under the approved scheme of the stock exchange and / or SEBI.

SEBI, had previously vide circular dated 27-04-2007, mandated that PAN would be the sole identification number for all participants transacting in the securities market, irrespective of the amount of transaction.

Schedule VII of the SEBI (Listing Obligations and Disclosure Requirement) Regulations, 2015, inter alia, states that:

  • For registration of transfer of securities, the transferee(s) as well as transferor(s) shall furnish a copy of their PAN card to the listed entity.
  • For securities market transactions and/or for off-market or private transactions involving transfer of shares in physical form, the transferee(s) as well as transferor(s) shall furnish copy of PAN card to the listed entity.

Moreover, SEBI registered intermediaries are required to follow stringent KYC norms on an ongoing basis and are also required to file Suspicious Transaction Reports (STRs) to the Financial Intelligence Unit (FIU) in case of suspicious activities of their clients.

Appropriate action against evasion of taxes/black money, including against cases involving black money investments, is an on-going process. Such action under direct tax laws includes searches, surveys, enquiries, assessment of income, levy of taxes, penalties, etc. and filing of prosecution complaints in criminal courts, wherever applicable. The Income-tax Department does not maintain sector-wise details of the searches conducted.

Ministry of Finance
OP. ED.

The Delhi High Court, has, in Amit Jain v. SEBI[1] set aside a show-cause notice issued and consequent proceedings initiated by the Securities and Exchange Board of India (SEBI) against the petitioner for alleged violations of the Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 1992 (PIT Regulations).

The petitioner before the Delhi High Court was a shareholder of a listed company viz. Himalaya Granites Limited (Company). On the basis of certain information shared by the Bombay Stock Exchange Limited (BSE) to SEBI, a group of Assistant General Managers of SEBI allegedly found that the petitioner had violated Regulations 13(3) and (5) of the PIT Regulations and recommended that adjudication proceedings be initiated against him.

The aforesaid recommendations were then considered by a Committee of Division of Chiefs of SEBI who also recommended that the adjudication proceedings under Section 15-A(b) of the Securities and Exchange Board of India Act, 1992 (Act) be initiated against the petitioner.

Further to deliberations and recommendations, the Whole-time Director (WTD) SEBI, appended a noting on the file viz. “Ms Anita Kenkare is appointed as AO.

Accordingly, the Executive Director of SEBI communicated inter alia that (i) SEBI had examined the irregularities observed in the matter of the Company and the possible violations of the provisions of the Act and PIT Regulations; (ii) it prima facie appeared to the WTD that the petitioner had violated Regulations 13(3) and (5) of the PIT Regulations and was satisfied that there existed sufficient grounds to enquire into the affairs and adjudicate upon the alleged violation by the petitioner; and (iii) in exercise of his powers under the Act, the WTD appointed Ms Anita Kenkare as the adjudicating officer (AO).

Following the aforesaid, the AO issued a show-cause notice to the petitioner enclosing a copy of the appointment of the AO, a transaction statement for the alleged period of default by the petitioner and the correspondence issued by SEBI to BSE and the Company.

In response thereto, the petitioner appeared before the AO and subsequently, sought for information including the appointment of the WTD, the powers delegated to the WTD and loss caused to investor or group of investors of the Company by his alleged violation of the PIT Regulations. However, the Assistant General Manager of SEBI refused to disclose the requested information.

The petitioner thereafter, filed a writ petition before the Delhi Court under Articles 226 and 227 of the Constitution of India impugning the show-cause notice and for quashing the proceedings leading to the appointment of the AO to adjudge the penalty to be imposed on the petitioner.

At the hearing before the Delhi High Court, the following issues fell before the Court for its adjudication:

(a) whether the WTD had formed an opinion that there existed grounds for adjudging penalty under Section 15-A(b) of the Act?; and

(b) whether the WTD was required to pass an order under Regulation 14 of the PIT Regulations before taking any step for appointing an adjudicating officer for adjudging any penalty under Section 15-A(b) of the Act?

At the hearing, referring to Regulation 15 of the PIT Regulations, the learned counsel of the petitioner contended that the petitioner was precluded from exercising its right to appeal under the PIT Regulations since SEBI had not passed any order and hence, the petitioner was left with no other option but to approach the present Court.

The learned counsel for the petitioner thereafter contended that in the present case, there is no noting by the WTD expressly stating that he has formed an opinion that there are grounds for adjudging under the provisions of Chapter VI-A of the Act before the appointment of an adjudicating officer, as required under the provisions of Rule 3 of the Securities and Exchange Board of India (Procedure for Holding Inquiry and Imposing Penalties by Adjudicating Officer) Rules, 1995 (Inquiry Rules).

Referring to Regulation 4-A of the PIT Regulations, the learned counsel for the petitioner contended that it was mandatory for SEBI, or its delegate being the WTD, to make necessary inquiries for forming a prima facie opinion and to follow the procedure under Chapter III of the PIT Regulations.

The learned counsel for the petitioner also brought the Court’s attention to the caption or heading of Chapter III of the PIT Regulations being “investigation” indicating that the provisions of Regulations 4-A to 10 of the PIT Regulations relate essentially to the investigation that may be conducted by SEBI. Thus, as per the learned counsel for the petitioner, the scheme of the PIT Regulations made it amply evident that SEBI was first required to exhaust the process of investigation and then form a firm opinion, and only thereafter could the question of imposing penalty arise. In addition thereto, the learned counsel for the petitioner also contended that the proceedings for imposing a penalty could not be initiated without a prior order under Regulation 14 of the PIT Regulations.

Reading Regulation 11 with Regulation 14 of the PIT Regulations, the Court explained that initiating any action under Chapter VI-A of the Act is independent from the procedure as specified in the PIT Regulations. Therefore, the contention that SEBI was first required to determine whether the petitioner had violated PIT Regulations before appointing an AO was unmerited. It was further explained that it was also not necessary that the procedure of investigation must be carried out before SEBI can form an opinion that there are grounds for adjudging under any provision under Chapter VI-A of the Act.

While recognising the provision under Rule 3 of the Inquiry Rules, the Court observed that the only noting available on file made by the WTD is “Ms Anita Kenkare is appointed as AO” and there is no scope for inferring formation of an opinion merely for the reason that an adjudicating officer has been appointed and the other officers have forwarded their recommendations for such an opinion. SEBI is required to form an independent opinion that there are grounds for adjudging under Chapter VI-A of the Act. The Court further stated that it is not necessary for SEBI to elaborate its opinion or provide reasons for the same, however, it is required for SEBI to state in unequivocal terms that in its opinion, there are grounds for adjudging under Chapter VI-A of the Act before proceeding to appoint an AO.

The High Court also relied upon Chhugamal Rajpal v. S.P. Chaliha[2] and Central India Electric Supply Co. Ltd. v. ITO[3] to explain that courts have not accepted endorsement made mechanically as indicative of expression of any opinion or satisfaction that necessary statutory conditions have been met. In the present case, the WTD did not even make an endorsement that he is of the opinion that there are grounds for adjudging under Chapter VI-A of the Act and thus, the question of inferring that he had formed such an opinion does not arise.

In light of the aforesaid, the Court set aside the proceedings initiated against the petitioner and set aside the impugned show-cause notice issued to him and clarified that SEBI may examine the file and only after forming an opinion that there are grounds for adjudging under Chapter VI-A of the Act appoint an adjudicating officer for holding an inquiry.

The order passed by the Delhi High Court seems to be in consonance with the maxim delegatus non potest delegare. The jurisprudence of administrative law would affirm that a statutory power ought to be exercised only by the body or officer in whom it has been so conferred.

An implication of this order could be that a WTD is now prevented from delivering mechanical orders solely based upon the recommendations forwarded to it by his or her subordinates. A further implication, one that may even cause severe delays is that; a noticee may exercise its right to seek information from SEBI including but not limited to the “opinion” of the WTD prior to setting the investigation machinery in motion. It may be further possible that proceedings currently sub-judice before SEBI may not proceed further until SEBI responds to these requests from the noticees. One may anticipate a plethora of writ petitions being filed, wherein noticees shall demand their right to natural justice and as a corollary, delay the investigation being undertaken by SEBI.

———————

* Senior Associate practising with the litigation team at DSK Legal, Mumbai.

** Article practising with the litigation team at DSK Legal, Mumbai.

[1]  2018 SCC OnLine Del 9784.

[2]  (1971) 1 SCC 453 : (1971) 79 ITR 603.

[3]  2011 SCC OnLine Del 472 : (2011) 333 ITR 237.

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities and Exchange Board of India (SEBI): The whole time member of SEBI,  G.Mahalingam in accordance to the interim order given earlier issued directions under Section 19 of the Securities and Exchange Board of India Act, 1992 and Sections 11(1), 11(B) and 11(4) thereof and regulation 65 of the SEBI (Collective Investment Schemes) Regulations, 1999  to NICL India Ltd. for engaging in Collective Investment Schemes without ‘certificate of  registration’ from SEBI.

NICL  India Ltd. was involved in illegal mobilization of funds from the public through ‘Collective Investment Schemes’, without obtaining the certificate of registration resulting in the contravention of Section 12(1B) of the SEBI Act, 1992 with Section 11 AA and Regulation 3 of CIS Regulations. It has also been stated that NICL was alleged of contravention of Regulation 4(2)(t) of ‘Prohibition of Fraudulent & Unfair Trade Practice Relating to Securities Market Regulations, 2003.

The interim order that had been said to be passed carried certain directions towards the NICL directors and further in reference to that,  they were asked to file reply, if any.  NICL through the further correspondence of letters kept asking for the extension of time to refund the investor’s money.

SEBI received complaints subsequently in which one was from RBI as well, in regard to the ‘mobilization of public fund’, after NICL had claimed to adhered all the stated directives in the interim order.

Therefore, it was noted by the board that, after providing opportunity of personal hearing and absenteeism in that, SEBI had to conclude by stating that ‘Noticees’ that were engaged in the Collective investment scheme had failed to address prima facie conclusions in the interim order, for which the directors of NICL would be liable which further lead SEBI for the issuance of certain directions that involved the winding up of the NICL’s Collective Investment Scheme and certain other directives for refund of the invested funds. [NICL India Ltd., In Re,2018 SCC OnLine SEBI 128, order decided on 21-06-2018]

Amendments to existing lawsLegislation Updates

In exercise of powers conferred by Section 30 r/w clause (c) of sub-section (2) of Section 11 of the Securities and Exchange Board of India Act, 1992 (15 of 1992), the Board has amended the Securities and Exchange Board of India (Mutual Funds) Regulations, 1996 by the Securities and Exchange Board of India (Mutual Funds) (Amendment) Regulations, 2018, w.e.f. 13-03-2018.

1. In the Securities and Exchange Board of India (Mutual Funds) Regulations, 1996 –

A) after Regulation 7A and before Regulation 8, the following regulation shall be inserted, namely, –

Norms for Shareholding and Governance in Mutual Funds

7B. (1) No sponsor of a mutual fund, its associate or group company including the asset management company of the fund, through the schemes of the mutual fund or otherwise, individually or collectively, directly or indirectly, have –

(a) 10% or more of the share-holding or voting rights in the asset management company or the trustee company of any other mutual fund; or

(b) representation on the board of the asset management company or the trustee company of any other mutual fund.

(2) Any shareholder holding 10% or more of the share-holding or voting rights in the asset management company or the trustee company of a mutual fund, shall not have, directly or indirectly, –

(a) 10% or more of the share-holding or voting rights in the asset management company or the trustee company of any other mutual fund; or

(b) representation on the board of the asset management company or the trustee company of any other mutual fund.

(3) Any person not in conformity with the sub-regulations (1) and (2) of this regulation, as on the date of the coming into force of this regulation shall comply with sub-regulations (1) and (2) within a period of one year from the date of the coming into force of this regulation.”

B) in the Seventh Schedule, to clause 2, the following proviso shall be inserted, namely,-

“Provided, investment in the asset management company or the trustee company of a mutual fund shall be governed by clause (a), of sub-regulation (1), of regulation 7B.”

[Notification No. SEBI/LAD-NRO/GN/2018/02]

Footnote:

1. The Securities and Exchange Board of India (Mutual Funds) Regulations, 1996, the Principal Regulations, were published in the Gazette of India on December 9, 1996 vide S.O. No. 856 (E).

2. The Securities and Exchange Board of India (Mutual Funds) Regulations, 1996 were subsequently amended–

(1) on 15-04-1997, vide S.O. No.327 (E).

(2) on 12-01-1998, vide S.O. No.32 (E).

(3) on 08-12-1999, vide S.O. No.1223 (E).

(4) on 14-03-2000, vide S.O. No.235 (E).

(5) on 28-03-2000, vide S.O. No.278 (E).

(6) on 22-05-2000, vide S.O. No.484 (E).

(7) on 23-01-2001, vide S.O. No.69 (E).

(8) on 29-05-2001, vide S.O. No.476 (E).

(9) on 23-07-2001, vide S.O. No.698 (E).

(10) on 20-02-2002, vide S.O. No.219 (E).

(11) on 11-06-2002, vide S.O. No.625 (E).

(12) on 30-07-2002, vide S.O. No.809 (E).

(13) on 09-09-2002, vide S.O. No.956 (E).

(14) on 27-09-2002, vide S.O. No.1045 (E).

(15) on 29-05-2003, vide S.O. No. 632 (E).

(16) on 12-01-2004, vide F.No. SEBI/LAD/DOP/4/2004.

(17) on 10-03-2004, vide S.O. No. 398 (E).

(18) on 12-01-2006, vide S.O. No. 38 (E).

(19) on 22-05-2006, vide S.O. No. 783 (E).

(20) on 03-08-2006, vide S.O. No. 1254 (E).

(21) on 27-12-2006, vide F. No. SEBI/LAD/DOP/82534/2006.

(22) on 27-12-2006, vide F. No. SEBI/LAD/DOP/83065/2006.

(23) on 28-05-2007, vide F. No. 11/LC/GN/2007/2518.

(24) on 31-10-2007, vide F. No. 11/LC/GN/2007/4646.

(25) on 31-03-2008, vide F. No. 11/LC/GN/2008/21669.

(26) on 16-04-2008, vide F. No. LADNRO/ GN/2008/03/123042.

(27) on 22-05-2008, vide No. LADNRO/GN/2008/09/126202.

(28) on 29-09-2008, vide No. LADNRO/ GN/2008/24/139426.

(29) on 08-04-2009, vide No. LAD-NRO/GN/2009-10/01/159601.

(30) on 05-06-2009, vide No. LAD- NRO/GN/2009-10/07/165404.

(31) on 29-07-2010, vide No. LAD-NRO/GN/2010-11/13/13945.

(32) on 30-08-2011, vide No. LAD-NRO/GN/2011-12/27668.

(33) on 21-02-2012, vide No. LAD-NRO/GN/2011-12/38/4290.

(34) on 26-09-2012, vide No. LAD-NRO/GN/2012-13/17/21502.

(35) on 16-04-2013, vide No. LAD-NRO/GN/2013-14/03/5652.

(36) on 19-06-2013, vide No. LAD-NRO/GN/2013-14/12/6108.

(37) on 19-08-2013, vide No. LAD-NRO/GN/2013-14/18/6384.

(38) on 06-05-2014, vide No. LAD-NRO/GN/2014-15/01/1039.

(39) on 23-05-2014, vide No. LAD-NRO/GN/2014-15/03/1089.

(40) on 30-12-2014, vide No. LAD-NRO/GN/2014-15/19/1973.

(41) on 15-05-2015, No. NROOIAE/GN/2015-16/005.

(42) on 12-02-2016, vide No. SEBI/LAD-NRO/GN/2015-16/034.

(43) on 15-02-2017, vide No. SEBI/LAD/NRO/GN/2016-17/031.

Legislation UpdatesRules & Regulations

In exercise of powers conferred under Section 11 (1) of the Securities and Exchange Board of India Act, 1992, SEBI has issued a circular, dt. 21-03-2018, to protect the interests of investors in securities and to promote the development of, and to regulate the securities market.

Post the transfer of clearing and settlement functions from commodity derivatives exchanges to Clearing Corporations, Clearing Corporations shall be required to comply with all such norms. However, norms related to minimum Liquid Net-worth and Base Minimum Capital requirements applicable for clearing members in commodity derivatives are different from that applicable for clearing members in equity derivatives and currency derivatives. SEBI has thus decided to align norms related to BMC and liquid net-worth for members of clearing corporations in commodity derivatives with those applicable for clearing members in equity and currency derivatives. Hence, members of Clearing Corporations in commodity derivatives segment shall maintain a minimum Liquid Net-worth of at least INR 50 lakhs at all points of time and shall not have any Base Minimum Capital requirement. Clearing member’s liquid assets after adjusting for applicable margins shall be referred to as ‘Liquid Net-worth’ of the clearing member. Initial margins, ELM, additional margins or any other margins as may be specified by SEBI from time to time shall be deducted from the liquid assets of a clearing member to arrive at ‘Liquid Net-worth’ of a member.

SEBI had issued circular CIR/MRD/DRMNP/65/2016 dated 15-07-2016 on “Acceptance of Fixed Deposit Receipts (FDRs) by Clearing Corporations” to Recognised Clearing Corporations, to which the Commodity Derivatives Exchanges have to comply with the provisions of the abovesaid circular within 3 months from the date of this circular. Thus, Trading/Clearing members of commodity derivatives exchanges, who have deposited their own FDRs or FDRs of associate banks, shall replace such collateral with other eligible collateral as per extant norms, within a period of 3 months from the date of issuance of this circular.

SEBI has also issued circular CIR/MRD/DRMNP/008/2018 dated 08-01-2018 on “Margin provisions for intra-day crystallised losses” to Recognised Clearing Corporations, for which the Commodity Derivatives Exchanges have also to comply with the provisions of the abovementioned circular within 3 months from the date of this circular.

[SEBI/HO/CDMRD/DRMP/CIR/P/2018/52, dt. 21-03-2018]

Securities and Exchange Board of India

Business NewsNews

1. SEBI (Real Estate Investment Trusts) Regulations, 2014 (“REIT Regulations”) and SEBI (Infrastructure Investment Trusts) Regulations, 2014 (“InvIT Regulations”) were amended vide notifications dated December 15, 2017. The said amendments, inter-alia, clarified that REITs and InvITs can issue debt securities.

2. For issuance of debt securities, REITs/InvITs shall follow provisions of SEBI (Issue and Listing of Debt Securities Regulations), 2008 (“ILDS Regulations”) in the following manner:

2.1. Regulation 4(5) and Regulation 16(1) of SEBI ILDS Regulations, 2008 shall not be applicable for issuance of debt securities by REITs/InvITs.

2.2. The compliances required to be made with respect to Companies Act, 2013 or any filing to be made to Registrar of Companies in terms of the ILDS Regulations, shall not apply to REITs/InvITs for issuance of debt securities unless specifically provided in this circular.

2.3. All other provisions of ILDS Regulations shall apply to REITs/InvITs subject to there being no conflict with REIT Regulations and/or InvIT Regulations or circulars issued thereunder. In case of conflict, provisions of REIT Regulations and/or InvIT Regulations or circulars issued thereunder shall prevail over ILDS Regulations.

3. For the issuance of debt securities REITs/InvITs shall appoint one or more debenture trustee registered with SEBI under Securities and Exchange Board of India (Debenture Trustees) Regulations, 1993:

Provided that a trustee to the REIT/InvIT shall not be eligible to be appointed as debenture trustee to such issue of debt securities.

4. Any secured debt securities issued by REITs/InvITs shall be secured by the creation of a charge on the assets of the REIT/InvIT or holdco or SPV, having a value which is sufficient for the repayment of the amount of such debt securities and interest thereon.

5. In addition to the disclosures and compliances prescribed under Circular CIR/IMD/DF/146/2016 dated December 29, 2016 and Circular CIR/IMD/DF/127/2016 dated November 29, 2016, as applicable, REITs/InvITs which have issued debt securities shall be required to comply with following continuous disclosure requirements:

5.1 . Regulations 50, 51, 54, 55, 56, 57, 58, 59 and 60 of Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 (“LODR Regulations”) and any other provisions of the aforesaid regulations as may be applicable to REITs/InvITs.

5.2. In addition to Financial disclosures made by REITs and InvITs in terms of circular dated December 29, 2016 and November 29, 2016 the following requirements shall apply:

5.2.1. Additional line items that shall be disclosed by REITs/InvITs which have issued/listed their debt securities are as follows:

(a) Asset cover available;

(b) debt-equity ratio;

(c) debt service coverage ratio;

(d) interest service coverage ratio;

(e) net worth;

5.2.2. Modified opinion(s) in audit reports having a bearing on the interest payment or redemption or principal repayment capacity of the REITs/InvITs shall be appropriately and adequately addressed by the board of the manager while publishing the accounts for the said period.

5.2.3. REITs/InvITs shall submit to the stock exchange on a half yearly basis along with the half yearly financial results, a statement indicating material deviations, if any, in the use of proceeds of issue of debt securities from the objects stated in the offer document.

6. With reference to ILDS Regulations and LODR Regulation and circulars issued thereunder, the reference to the following terms made therein, should, for the purpose of this circular, be construed as follows, unless otherwise required:

Reference to To be construed as
Articles of Association! Memorandum of Association Trust Deed
Board of directors Board of Director!Governing Body of the Manager
Directors of the company Directors of the manager
Shares Units
Shareholder Unit holder
Shareholding pattern Unit holding pattern
Share capital Unit capital

7. This Circular is issued in exercise of powers conferred under Section 11(1) of Securities and Exchange Board of India Act, 1992 read with Regulation 33 of REIT Regulations and Regulation 33 of InvIT Regulations.

8. This Circular is available on SEBI website at sebi.gov.in under the categories “Legal Framework” and under the drop down “Circulars”.

[SEBI/HO/DDHS/DDHS/CIR/P/2018/71]

Business NewsNews

SEBI has been monitoring investment by foreign Governments and their related entities viz. foreign central banks, sovereign wealth funds and foreign Governmental agencies registered as foreign portfolio investors (hereinafter referred to as FPIs) in India. Since various stakeholders have been seeking guidance on clubbing of investment limits to be applied to foreign Government/its related entities, the following clarifications are issued:

A. What is the investment limit for foreign Government/foreign Government related entities registered as Foreign Portfolio Investors (FPI)?
Reply: The purchase of equity shares of each company by a single FPI or an investor group shall be below ten percent of the total paid up capital of the company. [Ref. Regulation 21(7) of FPI Regulations].

B. What is an investor group?
Reply: In case, same set of beneficial owners are constituents of two or more FPIs and such investor(s) have a common beneficial ownership of more than 50% in those FPIs, all such FPIs will be treated as forming part of an investor group and the investment limits of all such entities shall be clubbed at the investment limit as applicable to a single foreign portfolio investor. [Ref. Regulation 23(3) of FPI Regulations and FAQ 58].

C. How to ascertain whether an FPI is forming part of any investor group?
Reply: The designated depository participant engaged by an applicant seeking registration as FPI shall ascertain at the time of granting registration and whenever applicable, whether the applicant forms part of any investor group. [Ref. Regulation 32(2)(a) of FPI Regulations].

Further, at para 2.2 in the Form A of First Schedule, the applicant seeking registration as FPI is required to furnish information regarding foreign investor group. Accordingly, it is the prime responsibility and obligation of the FPI to disclose the information with regard to investor group.

D. How is the beneficial ownership of foreign Government entities/its related entities determined for the purpose of clubbing of investment limit?
Reply: The beneficial owner (BO) of foreign Government entities/its related entities shall be determined in accordance with Rule 9 of Prevention of Money Laundering (Maintenance of Records) Rules, 2005 (hereinafter referred to as PMLA Rules). The said PMLA Rules provide for identification of BO on the basis of two methodologies, namely (a) controlling ownership interest (also termed as ownership or entitlement) and (b) control in respect of entities having company or trust structure. In respect of partnership firms and unincorporated associations, ownership or entitlement is basis for identification of BO.

E. Whether two or more foreign Government related entities from the same jurisdiction will individually be permitted to acquire equity shares in an Indian company up to the prescribed limit of 10%?
Reply: In case the same set of beneficial owner(s) invest through multiple entities, such entities shall be treated as part of same investor group and the investment limits of all such entities shall be clubbed as applicable to a single FPI. [Ref. Regulation 23(3) of FPI Regulations].

Accordingly, the combined holding of all foreign Government/its related entities from the same jurisdiction shall be below ten percent of the total paid up capital of the company.

However, in cases where Government of India enters into agreements or treaties with other sovereign Governments and where such agreements or treaties specifically recognize certain entities to be distinct and separate, SEBI may, during the validity of such agreements or treaties, recognize them as such, subject to conditions as may be specified by it. [Ref. Regulation 21(9) of FPI Regulations].

F. How will the investment by a Foreign Government Agency be treated?
Reply: Foreign Government Agency is an arm/department/body corporate of Government or is set up by a statute or is majority (i.e. 50% or more) owned by the Government of a foreign country and has been included under “Category I Foreign portfolio investors”. [Ref. Regulation 5(a) of FPI Regulations].

The investment by foreign Government agencies shall be clubbed with the investment by the foreign Government/its related entities for the purpose of calculation of 10% limit for FPI investments in a single company, if they form part of an investor group.

G. Whether any investment by World bank group entity IBRD, IDA, MIGA and IFC should be clubbed with the investment from a foreign Government having ownership in such World bank group entity?
Reply: Government of India, vide letter No. 10/06/2010-ECB dated January 06, 2016 has exempted World Bank Group viz. IBRD, IDA, MIGA and IFC from clubbing of the investment limits for the purpose of application of 10% limit for FPI investments in a single company.

H. Where Provinces/States of some countries with federal structure have set up their separate investment funds with distinct beneficial ownership constituted with objectives suitable for their respective provinces, such funds not only have separate source of financing but also have no management, administrative or statutory commonality. Kindly inform whether investments by these foreign Government entities shall be clubbed?
Reply: The investment by foreign Government/its related entities from provinces/ states of countries with federal structure shall not be clubbed if the said foreign entities have different BO identified in accordance with PMLA Rules.

I. How will the foreign Government/ its related entities know the available limit for investment, to avoid breach of the limit?
Reply: The custodian of securities reports the holdings of FPIs/investor groups to depositories who monitor the investment limits. As such, NSDL is in ready possession of aggregate holdings of FPIs/investor groups in any particular scrip. [Ref. Regulation 26(2)(d) of FPI Regulations]. To this effect, SEBI, vide communication dated November 02, 2017 has already advised DDPs/custodians of securities to approach NSDL to get information regarding aggregate percentage holdings of the group entities on whose behalf they are acting in any particular company before making investment decisions. SEBI has no objection to the said arrangement for sharing of data.

J. What if the investment by foreign Government/its related entities cause breach of the permissible limit?
Reply: The FPIs investing in breach of the prescribed limit shall divest their holdings within 5 trading days from the date of settlement of the trades causing the breach. Alternatively, the investment by such FPIs shall be considered as investment under Foreign Direct Investment (FDI) at the FPI’s option. However, the FPIs need to immediately inform of such option to SEBI & RBI, since they cannot hold equity investments in a particular company under FPI and FDI route, simultaneously.

2. This circular is issued in exercise of powers conferred under Section 11(1) of the Securities and Exchange Board of India Act, 1992 to protect the interests of investors in securities and to promote the development of, and to regulate the securities market.

3. A copy of this circular is available at the links “Legal Framework-Circulars” and “Info for P.I” on our website www.sebi.gov.in. The DDPs/ Custodians are requested to bring the contents of this circular to the notice of their FPI clients.

Securities and Exchange Board of India

 

Business NewsNews

This master circular consolidates and updates the requirements/obligations with regard to Prevention of Unauthorized Trading by Stock Brokers prescribed by the following circulars:

A. CIR/HO/MIRSD/MIRSD2/CIR/P/201 7/108 dated September 26, 2017

B. CIR/HO/MIRSD/MIRSD2/CIR/P/2017/124 dated November 30, 2017

C. CIR/HO/MIRSD/MIRSD2/CIR/P/2018/109 dated January 11, 2018

II. SEBI in the past has taken several steps to tackle the issue of “Unauthorized Trades” viz Periodic Running Account Settlement, Post transactions SMS/email by exchanges/Depositories, Ticker on broker/DP websites etc. It was observed that in spite of measures taken, a considerable proportion of investor complaints is of the nature of “Unauthorized Trades”

III. To further strengthen regulatory provisions against unauthorized trades and also to harmonize the requirements across markets, it has now been decided that all brokers shall execute trades of clients only after keeping evidence of the client placing such order, which could be, inter alia, in the form of:

a. Physical record written & signed by client,

b. Telephone recording,

c. Email from authorized email id,

d. Log for internet transactions

e. Record of messages through mobile phones,

f. Any other legally verifiable record.

When a dispute arises, the broker shall produce the above mentioned records for the disputed trades. However for exceptional cases such as technical failure etc. where broker fails to produce order placing evidences, the broker shall justify with reasons for the same and depending upon merit of the same, other appropriate evidences like post trade confirmation by client, receipt/payment of funds/ securities by client in respect of disputed trade, etc. shall also be considered.

IV. Further, wherever the order instructions are received from clients through the telephone, the stock broker shall mandatorily use telephone recording system to record the instructions and maintain telephone recordings as part of its records.

V. The Brokers are required to maintain the records specified at Para III above for a minimum period for which the arbitration accepts investors’ complaints as notified from time to time currently three years. However in cases where dispute has been raised, such records shall be kept till final resolution of the dispute.

VI. If SEBI desires that specific records be preserved then such records shall be kept till further intimation by SEBI.

VII. The earlier circulars on the same subject mentioned in Para 1 of this Master Circular stand rescinded.

VIII. This master circular shall continue to be effective from 1st April 2018.

IX. The Stock Exchanges are directed to:

a. bring the provisions of this circular to the notice of the Stock Brokers and also disseminate the same on their websites.

b. make necessary amendments to the relevant bye-laws, rules and regulations for the implementation of the above directions in coordination with one another to achieve uniformity in approach.

c. communicate to SEBI, the status of the implementation of the provisions of this circular in their Monthly Development Reports.

X. This circular is issued in exercise of powers conferred under Section 11(1) of the Securities and Exchange Board of India Act, 1992 to protect the interest of investors in securities and to promote the development of and to regulate the securities market.

Securities and Exchange Board of India

[CIRCULAR SEBI/HO/MIRSD/DOP1/CIR/P/2018/54]

Business NewsNews

A private placement, rather than a public issue, is the markets regulator’s favoured route to start trading in securities receipts issued by asset reconstruction companies (ARCs). SEBI’s move aimed at allowing only informed investors to trade in the securities. Only certain “qualified buyers” will be permitted to trade in them, and the minimum lot size will be Rs 10 lakh. The intention is to allow only informed investors to trade in these securities. A committee set up by the Securities and Exchange Board of India (SEBI) has made these recommendations, and the regulator’s board meeting on 28-12-2017 approved them.

The offer of Security Receipts (SRs), which are proposed to be listed, may be allowed only to Qualified Buyers through private placement. Initially, security receipts issued by ARCs to banks in exchange for some of their bad loans will be sold to qualified buyers such as financial institutions, banks and alternative investment funds (AIFs) through a process of private placement. Later, high -net-worth individuals (HNIs) and portfolio managers will be allowed to trade in them. Listing of securities receipts was initially proposed to improve liquidity in the securitization industry and help speed up the resolution of the stressed assets in the banking system. SEBI then formed a committee with representatives from the central bank, stock exchanges, credit rating agencies and ARCs to study the matter.

The Reserve Bank of India has defined “qualified buyer” as financial institutions, banks, insurance companies, mutual funds, or any category of non-institutional investors it specifies. Existing holders of security receipts have also been allowed to sell them in an offer for sale (OFS). The net asset value of these receipts may be disclosed quarterly. Existing RBI guidelines require such disclosures twice a year. Listing of these receipts would happen through the Electronic Book Mechanism, which is currently applicable for listing of debt securities. To begin with, SEBI has kept the listing of securities receipts optional. However, if the holder(s) of existing SRs wants to undertake an offer for sale, then such SRs shall be mandatorily listed by the issuers. While the committee suggested that AIFs be allowed to subscribe to the listed SRs, existing SEBI norms limits qualified buyers only to those AIFs which are body corporates.

At the second stage, after seeing the level of interest and the operation of the market, the RBI may consider expanding the definition by including HNIs, portfolio managers having an investible fund base of Rs 10 crore or above and family trusts, with net worth of Rs 500 crore.

[Source: Livemint]

Amendments to existing lawsLegislation Updates

SEBI in exercise of the powers conferred under Section 15JB of the Securities and Exchange Board of India Act, 1992, Section 23JA of the Securities Contracts (Regulation) Act, 1956 and Section 19-IA of the Depositories Act, 1996 r/w Section 30 of the Securities and Exchange Board of India Act, 1992, Section 31 of the Securities Contracts (Regulation) Act, 1956 and Section 25 of the Depositories Act, 1996, the Securities and Exchange Board of India made the following regulations, w.e.f. 27th December, 2017, to further amend the Securities and Exchange Board of India (Settlement of Administrative and Civil Proceedings) Regulations, 2014.

In the Securities and Exchange Board of India (Settlement of Administrative and Civil Proceedings) Regulations, 2014,

I. After Chapter VI and before Chapter VII, the following Chapter shall be inserted, namely,

“CHAPTER VIA

Summary Settlement Procedure

Summary Settlement Procedure

14A. (1) Notwithstanding anything contained in Chapter VI, before initiating any specified proceeding the Board may issue a notice of settlement in the format as specified in Schedule-III, calling upon the noticee to file a settlement application in respect of the specified proceeding(s) to be initiated, upon payment of the settlement amount and/or furnishing an undertaking in respect of other non-monetary terms or compliance with other non-monetary terms, as may be specified in the settlement notice in respect of the following alleged defaults,-

i. Late filing of returns, report, document, etc.;

ii. Delay in making disclosures;

iii. Non-disclosure in relation to companies exclusively listed on regional stock exchanges which have exited;

iv. Failure to make disclosures in the prescribed formats;

v. Delay in compliance of any of the requirements of law or with directions issued by the Board;

vi. Such other violations as may be determined by the Board:

Provided that, the specified proceeding(s) shall not be settled under this Chapter, if in the opinion of the Board, the applicant has failed to make a full and true disclosure of facts or failed to co-operate to the satisfaction of the Board:

Provided further that, notwithstanding anything contained in the notice of settlement , the Board shall have the power to modify the enforcement action to be brought against the noticee and the notice of settlement shall not confer any right upon the noticee to seek settlement or avoid any enforcement action.

(2) The noticee may within thirty calendar days from the date of receipt of the notice of settlement,-

(a) file a settlement application in the Form specified in Part-A of the Schedule-I alongwith non-refundable application fee as specified in Part-B and the undertakings and waivers as specified in Part-C of the Schedule-I;

(b) remit the settlement amount as specified in the notice of settlement; and

(c) comply or undertake to comply with other non-monetary terms as specified in the notice of settlement, as the case may be:

Provided that, in case of any discrepancy in calculation of settlement amount specified in the notice of settlement, the noticee may seek rectification of the same at the time of filing the settlement application and in such cases the decision of the Board shall be final and remittance shall be done within thirty calendar days from the date of receipt of the decision of the Board:

Provided further that, the Board may for reasons to be recorded, grant extension of time not exceeding a further period of fifteen calendar days for filing of the settlement application, remittance of the settlement amount and/or furnishing an undertaking in respect of any of the non-monetary terms or compliance with any of the non-monetary terms specified in the notice of settlement.

(3) The Board upon being satisfied with the remittance of settlement amount and undertaking furnished in respect of non-monetary terms or compliance with non-monetary terms, if any specified in the settlement notice, shall pass an order of settlement under Regulation 15.

14B. Notwithstanding anything contained in Chapter VI and in Regulation 14A, with respect to specified proceedings pending as on the date of commencement of this Chapter, the Board may issue a notice of settlement under sub-regulation (1) of Regulation 14A in respect of such proceedings and in such cases the procedure specified in Regulation 14A shall apply mutatis mutandis.

Explanation. – For the purposes of this Chapter, it is clarified that a specified proceeding is not deemed to be initiated and pending, unless the Board has communicated the matter to the authority who shall conduct such proceedings.

14C. Notwithstanding anything contained in these regulations, where a noticee does not file a settlement application under this Chapter or remit the settlement amount and/or comply with other non-monetary terms to the satisfaction of the Board or withdraws the settlement application, the specified proceedings may be initiated or continued, as the case may be and such a noticee shall only be permitted to file a settlement application in respect of proceedings pending before a Court or tribunal after conclusion of proceedings before the Adjudicating Officer or the Board, as the case may be.”

II. In Schedule II, in Chapter I, Item 12 shall be deleted; Existing item (13) shall be renumbered as item (12).

III. After Schedule II, the following Schedule shall be inserted, namely,

Schedule III

(See regulation 14A)

Form

To                                                                                                                                       Date

…….

Address

Sub: Notice of settlement in the matter of ……………………………….

Securities and Exchange Board of India (SEBI) during the investigation/ inspection/ inquiry/ examination in the matter of …………………………………………….has prima facie observed that you have violated the following provisions of the securities laws:

(i) …………..

(ii) …………..

(iii) …………..

(iv) …………..

Extracts of the findings are enclosed.

2. In view of the aforesaid you are liable to be proceeded against under ….(relevant provisions under which the proceedings may be initiated or continued)

3. The aforesaid proceedings (to be) initiated may, be settled and disposed of upon filing of a settlement application under the SEBI (Settlement of Administrative and Civil Proceedings) Regulations, 2014 alongwith remittance of a settlement amount of Rs. …………..to SEBI in terms of ….. ………………… (provision) of SEBI (Settlement of Administrative and Civil Proceedings) Regulations, 2014 within 30 calendar days from the date of receipt of this notice and upon complying with the following non-monetary terms:

(i) . …………………

(ii) ………………….…… (please specify any other terms, if any)

4. If remittance of the settlement amount is not made and/ or any of the non-monetary terms are not complied or undertaken to be complied within the specified time, the Board may initiate or continue any specified proceedings against you in accordance with law.

Notwithstanding anything contained in this notice, the Board reserves the right to modify the proceedings and charges (to be) brought against you and this notice shall not confer any right to seek settlement or avoid any action initiated by the Board.

5. If the settlement application is not filed or the settlement amount is not remitted and/or undertaking in respect of other non-monetary terms is not furnished or other non-monetary terms are not complied to the satisfaction of the Board or the settlement application is withdrawn, the specified proceedings may be initiated or continued, as the case may be and you shall be permitted to file a settlement application only in respect of proceedings pending before a Court or tribunal after conclusion of proceedings before the Adjudicating Officer or the Board, as the case may be.

Name, designation and signature

Encl: As above”

Footnote:

1.The SEBI (Settlement of Administrative and Civil Proceedings) Regulations, 2014 were published in the Gazette of India on January 09, 2014 vide No. LAD-NRO/GN/2013-14/37/50.

2.The SEBI (Settlement of Administrative and Civil Proceedings) Regulations, 2014 were subsequently amended on:-

(1) 15th September, 2014 by Securities and Exchange Board of India (Settlement of Administrative and Civil Proceedings) (Amendment) Regulations, 2014 vide No. LAD-NRO/GN/2014-15/08/1491.

(2) 29th August, 2016 by Securities and Exchange Board of India (Settlement of Administrative and Civil Proceedings) (Amendment) Regulations, 2016 vide No. LAD-NRO/GN/2016-17/010.

(3) 27th February, 2017 by Securities and Exchange Board of India (Settlement of Administrative and Civil Proceedings) (Amendment) Regulations, 2017 vide No. LAD-NRO/GN/2016-17/036.

[Notification No. SEBI/LAD-NRO/GN/2017-18/025]

Ministry of Finance

Business NewsNews

To deepen the corporate bond market, regulator Securities and Exchange Board of India (SEBI) plans to come out with a methodology for uniform valuation of such products across the financial sector. The bond’s price equals the present value of its expected future cash flows. SEBI is closely working with Reserve Bank of India (RBI) in this regard. According to officials, the market regulator will come out with the framework for ‘one single price’ of corporate bonds across the financial sector and make uniform rules for calculation of interest and redemption payments on bonds.

Currently, different sectors follow different conventions and divergent practices for holidays or day count, which leads to varying basis for yield calculation. SEBI has already set up a separate division to develop bond markets and increase retail participation. Further, the move will provide additional avenues to corporates for raising funds in a cost-effective manner and reducing reliance on bank finance. Besides, a deep and liquid debt market augments financial savings and helps match the savers to the borrowers in an efficient manner. A bond is defined as a debt instrument that provides a periodic stream of interest payments to investors while repaying the principal sum on a specified maturity date. SEBI has been taking a slew of measures to deepen the bond market. This includes allowing foreign portfolio investors (FPIs) to invest in unlisted corporate debt securities as well as putting in place a new framework for consolidation in debt securities.

[Source: The Hindu Business Line]

Business Law

India’s market regulator has recommended new tax rules for alternative investment products that would boost the country’s fledgeling hedge fund industry. The Securities and Exchange Board of India is seeking “unit-based” taxation for products broadly classified as hedge funds. The designation would reduce fund managers’ administrative burdens and make the country’s equity hedge-fund investors eligible for capital-gains tax exemptions after one year, moving the rules more in line with those for mutual funds.

Unfavorable tax treatment has been a key barrier to growth for India’s $2 billion hedge fund industry, which pales in comparison to the $348 billion market in China. SEBI has also asked for a so-called tax pass through for losses in other alternative investment products, including venture capital, real estate and private equity, that would allow investors to offset their personal tax bill if fund stakes suffer losses.

Assets in alternative investment funds rose after last year’s budget granted tax pass through for profits in certain product types, enabling some investors to pay lower rates. Total AIF investments swelled to 435 billion rupees ($6.9 billion) in September 2017 from 285 billion rupees in December 2016, according to SEBI.

[Source: The Financial Express]

Business Law

1. It is observed that there are frequent changes carried out in Total Expense Ratio (TER) and such changes are not prominently disclosed to investors. In order to bring uniformity in disclosure of actual TER charged to mutual fund schemes and to enable the investor to take informed decision, the following has been decided:

a. AMCs shall prominently disclose on a daily basis, the TER of all schemes under a separate head –“Total Expense Ratio of Mutual Fund Schemes”on their website in downloadable spreadsheet format as per Annexure A.

b. Any change in the base TER (i.e. TER excluding additional expenses provided in Regulation 52(6A)(b) and 52(6A)(c) of SEBI (Mutual Funds) Regulations, 1996) in comparison to previous base TER charged to any scheme shall be communicated to investors of the scheme through notice via email or SMS at least three working days prior to effecting such change. (For example, if changed TER is to be effective from January 8, 2018, then notice shall be given latest by January 2, 2018, considering at least three working days prior to effective date). Further, the notice of change in base TER shall be updated in the aforesaid section of website at least three working days prior to effecting such change.

However, any decrease in TER due to decrease in applicable limits as prescribed in Regulation 52 (6) (i.e. due to increase in daily net assets of the scheme) would not require issuance of any prior notice to the investors. Further, such decrease in TER shall be immediately communicated to investors of the scheme through email or SMS and uploaded on the website in terms of clause (a) above.

c. The above change in the base TER in comparison to previous base TER charged to the scheme shall be intimated to the Board of Directors of AMC along with the rationale recorded in writing.

d. The changes in TER shall also be placed before the Trustees on quarterly basis along with rationale for such changes.

2. SEBI circular SEBI/IMD/CIR No. 5/126096/08 dated May 23, 2008, and SEBI Circular CIR/IMD/DF/7/2013 dated April 23, 2013, inter- alia, have prescribed the formats for Scheme Information Document and Placement Memorandum respectively, wherein, the following is mentioned under the head “ANNUAL SCHEME RECURRING EXPENSES”:

“The mutual fund would update the current expense ratios on the website within two working days mentioning the effective date of the change.”

In partial modification to the aforesaid circulars the above provision has been substituted by the following:

“The mutual fund would update the current expense ratios on the website at least three working days prior to the effective date of the change. Additionally, AMCs shall provide the exact web link of the heads under which TER is disclosed in their website.”

 3. This circular shall be applicable– (i) immediately for new schemes to be launched on or after the date of this circular and (ii) for all the existing schemes with effect from March 1, 2018.

4. This circular is issued in exercise of the power conferred under Section 11 (1) of the Securities and Exchange Board of India Act 1992, read with the provision 77 of SEBI (Mutual Funds) Regulation, 1996 to protect the interests of investors in securities and to promote the development of, and to regulate the securities market.

Securities and Exchange Board of India

 [SEBI/HO/IMD/DF2/CIR/P/2018/18]

Legislation UpdatesNotifications

CIRCULAR

SEBI/HO/IMD/DF2/CIR/P/2017/125

Sub: Enhancing fund governance for Mutual Funds

In order to strengthen the governance structure for Mutual Funds (MFs), it has been decided to implement the following:

A. Tenure of independent trustees and independent directors:

1. Regulation 16 (5) and Regulation 21 (1) (d) of SEBI (Mutual Funds) Regulations, 1996 mandate appointment of independent trustees of MFs (“independent trustees”) and independent directors of AMCs (“independent directors”) respectively. With respect to tenure of independent trustees and independent directors, it has been decided that:

i. An independent trustee and independent director shall hold office for a maximum of 2 terms with each term not exceeding a period of 5 consecutive years.

ii. No independent trustee or independent director shall hold office for more than two consecutive terms, however such individuals shall be eligible for re-appointment after a cooling-off period of 3 years. During the cooling-off period, such individuals should not be associated with the concerned MF, AMC & its subsidiaries and / or sponsor of AMC in any manner whatsoever.

iii. Existing independent trustees and independent directors shall hold office for a maximum of 10 years (including all preceding years for which such individual has held office). In this respect, the following may be noted:

a. Individuals who have held office for less than 9 years (as on date of issuance of this circular) may continue for the residual period of service.

b. Individuals who have held office for 9 years or more (as on date of issuance of this circular) may continue for a maximum of 1 year from date of issuance of this circular.

c. Such individuals shall subsequently be eligible for re-appointment after a cooling-off period of 3 years, in terms of Para A (1) (i) and Para A (1) (ii) above.

B. Auditors of Mutual Funds:

1. The auditor of a MF, appointed in terms of Regulation 55 (1) of SEBI (MFs) Regulations shall be a firm, including a limited liability firm, constituted under the LLP Act, 2008.

2. Period of appointment:

With respect to appointment of auditors in terms of Regulation 55 (1) of SEBI (MFs) Regulation, 1996, it has been decided that:

i. No MF shall appoint an auditor for more than 2 terms of maximum five consecutive years. Such auditor may be re-appointed after cooling off period of 5 years.

ii. Further, during the cooling-off period of five years, the incoming auditor may not include:

a. Any firm that has common partner(s) with the outgoing audit firm

b. Any associate / affiliate firm(s) of the outgoing audit firm which are under the same network of audit firms wherein the term “same network” includes the firms operating or functioning, hitherto or in future, under the same brand name, trade name or common control

iii. Existing auditors may be appointed for a maximum of 10 years (including all preceding years for which an auditor has been appointed in terms of Regulation 55 (1) of SEBI (Mutual Funds) Regulation, 1996). In this respect, the following may be noted:

a. Auditors who have conducted audit of the Mutual Fund for less than 9 years (as on date of issuance of this circular) may continue for the residual period of service.

b. Auditors who have conducted audit of the Mutual Fund for 9 years or more (as on date of issuance of this circular) may continue for a maximum of 1 year from date of issuance of this circular.

c. Such auditors shall subsequently be eligible for re-appointment after a cooling-off period of 5 years, in terms of Para B (2) (i) and Para B (2) (ii) above.

C. This circular is issued in exercise of powers conferred under Section 11(1) of the Securities and Exchange Board of India Act, 1992, read with the provisions of Regulation 77 of SEBI (Mutual Funds) Regulations, 1996, to protect the interests of investors in securities and to promote the development of, and to regulate the securities market.

Securities and Exchange Board of India

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities and Exchange Board of India: The interim order passed in accordance with Securities and Exchange Board of India Act, 1992, by Madhabi Puri Buch (Whole Time Member), directed the continuation of actions already taken against M/s Eskay K’n’it (India) Limited in regard to the previous orders and directed the shares held by promoters and directors in EKIL not to be allowed to be transferred for sale, giving thirty days limit to the company to file its reply.

The company has failed to submit the complete information sought from it violating Regulation 30 of Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015. Evidence has been produced regarding misrepresentation of financials, misuse of funds and books of accounts and submission of incomplete information to SEBI. Also, it has failed to provide the copy of contracts with customers, copy of lease agreement of plants and machinery with third parties and copy of contract with Asahi Industries Limited, leading to the suspicion about the genuineness of its transactions. [In the matter of M/s Eskay K’n’it (India) Limited, WTM/MPB/ISD/92/2017, decided on 21-11-2017]

Case BriefsSupreme Court

Supreme Court: Appointing the Official Receiver of the Bombay High Court as the receiver for the auction of the Aamby Valley Property, the 3-Judge Bench of Dipak Misra, CJ and Ranjan Gogoi and Dr. AK Sikri, JJ ordered auction of the property after SEBI sought for the direction of the Court in the light of the possible encroachment of the area in question.

The Bench said that the High Court was at liberty to adopt the procedure which will facilitate the auction and the mode of auction as suggested by the Official Liquidator shall be considered by the Company Judge in consultation with Justice A.S. Oka. It was directed that the Official Receiver has to see that the property is properly maintained and no encroachment takes place so that valuation does not reduce and auction takes place in peaceful manner.

The Court also said that the Receiver was at liberty to take instructions from the Company Judge and Justice A.S. Oka.

Earlier, the Court had rebuked Sahara Chief Subrata Roy for employing dilatory tactics and had said:

“He, who thinks or for that matter harbours the notion that he can play with law, is under wrong impression.”

The Court will now take up the matter in the first week of February 2018. [SEBI v. Subrata Roy Sahara, 2017 SCC OnLine SC 1354, order dated 23.11.2017]

Case BriefsSupreme Court

Supreme Court: Dealing with the legality of ‘non-intermediary frontrunning’ in security market under the Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 (FUTP 2003), the bench of NV Ramana and Ranjan Gogoi, JJ held that non-intermediary front running may be brought under the prohibition prescribed under regulations 3 and 4 (1), for being fraudulent or unfair trade practice, provided that the ingredients under those heads are satisfied.

In the matter where both the judges gave separate but concurring opinions, Ramana, J said:

“The information of possible trades that the company is going to undertake is the confidential information of the company concerned, which it has absolute liberty to deal with. Therefore, a person conveying confidential information to another person (tippee) breaches his duty prescribed by law and if the recipient of such information knows of the breach and trades, and there is an inducement to bring about an inequitable result, then the recipient tippee may be said to have committed the fraud.”

He further added that in order to establish charges against tippee, under regulations 3 (a), (b), (c) and (d) and 4 (1) of FUTP 2003, one needs to prove that a person who had provided the tip was under a duty to keep the non-public information under confidence, further such breach of duty was known to the tippee and he still trades thereby defrauding the person, whose orders were front-runned, by inducing him to deal at the price he did.

Gogoi, J, in his opinion on the applicability of the said regulations on the tippees said:

“To attract the rigor of Regulations 3 and 4 of the 2003 Regulations, mens rea is not an indispensable requirement and the correct test is one of preponderance of probabilities. Merely because the operation of the aforesaid two provisions of the 2003 Regulations invite penal consequences on the defaulters, proof beyond reasonable doubt is not an indispensable requirement.”

The Court was hearing a batch of cases dealing with insider trading. The question before the Court was to decide whether the person, to who the information has been leaked, may be said to have committed fraud. Considering facts of the cases i.e. the volume of shares sold and purchased; the proximity of time between the transactions of sale and purchase and the repeated nature of transactions on different dates, the Court held that the conduct of the respondents was in breach of the code of business integrity in the securities market. [SEBI v. Kanaiyalal Baldevbhai Patel, 2017 SCC OnLine SC 1148, decided on 20.09.2017]

 

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dipak Misra, CJ and Ranjan Gogoi and Dr. AK Sikri, JJ , refusing to grant of further time to Sahara Group and Subrata Roy and entertaining post-dated cheques which are dated 11th November, 2017, said that the same would tantamount to travesty of justice and extending unwarranted sympathy to a person who is indubitably (that which cannot be doubted: Cambridge Dictionary) an abuser of the process of law. The Court, hence, directed the Official Liquidator to carry out the auction of the Aamby Valley property.

The Court directed that the auction be held as per the direction given by this Court and that the Official Liquidator is permitted to carry out the auction as per procedure and during the auction the Registrar General of the High Court of Bombay, who is designated as the Supreme Court appointee, shall remain personally present to over-see the physical auction at the auction venue at Mumbai.

Kapil SIbal, appearing for Sahara, argued that it was the first case where a contemnor had paid the substantial amount which may go up to Rs. 16,000 crores, and though approximately Rs.8651 crores is due, that should not be held against him. He added that tremendous efforts have been made by the respondent-contemnor to comply with the order of this Court and if the prayer made by him is not accepted, the principle of reasonableness would be defeated.

Senior counsel Arvind P. Datar, appearing for SEBI, contended that the auction has to proceed and this kind of “drama of procrastination” must stop. Amicus Curiae Shekhar Naphade also urged that the conception “enough is enough” should be adopted by this Court and there is no reason why long rope should be given to the respondent-contemnor to play truancy and seek indulgence.

Agreeing with the contentions of SEBI and amicus curiae, the bench said:

“He, who thinks or for that matter harbours the notion that he can play with law, is under wrong impression.”

Coming down heavily upon Subrata Roy, the Court said:

“the respondent-contemnor in his own way has treated this Court as a laboratory and has made a maladroit (awkward in movement or unskilled in behaviour or action: Cambridge Dictionary) effort to play, possibly thinking that he can survive on the ventilator as long as he can. He would have been well advised that a person who goes on a ventilator may not survive for long and, in any case, a time would come when he has to be comatosed.”

[SEBI v. Sahara India Real Estate Corporation Ltd, 2017 SCC OnLine SC 1069, order dated 11.09.2017]