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2018 (4) TMI 977 - SC - Indian LawsPenalty u/s 43A of the Competition Act, 2002 - noncompliance of provisions contained in section 6(2) of the Act - notification of various transactions. Held that: - Once a particular transaction or a series of transactions falls within the purview of combination, it is obligatory to report the same to the Commission under section 6 of the Act - Section 6 (2) makes it clear that no combination shall come into effect until 210 days have elapsed from the date on which notice has been given to the Commission under section 6(2) and the Commission has passed orders under section 30(1), whichever is earlier. And once mandatory notice is given under section 6(2), the Commission has to deal with the same in accordance with the provisions contained in sections 29, 30 and 31. It is apparent that between the three respondent companies demerger of the resort of SHRIL on timeshare basis took place. It was to be transferred to TCISIL in view of the equity shares of TCIL were to be issued to shareholders of SHRIL as per the ratio provided in the scheme - It is apparent that in the notification made under section 6(2) on 14.2.2014 notifiable transactions were shown regarding merger and amalgamation. It was also mentioned that parties have also contemplated certain other transactions in view of the notifiable transactions, they were the substitution of equity shares, SPA, open offer and market purchase. It is crystal clear from the aforesaid application itself that all these transactions were part of the same transactions and even before notifying the transactions of purchase from the market on 14.2.2014, it was consummated between 10.2.2014 to 12.2.2014. It is crystal clear that market purchases being a part of the composite combination was consummated before giving notice to the Commission. Market purchases having been consummated between 10.2.2014 to 12.2.2014, which is almost after finalizing the composite combination clearly suggested that market purchases would not have taken place in the absence of scheme and the other acquisitions. In case they were not part of the same scheme that would not have been referred to in the notice filed by them with the Commission on 14.2.2014. Thus, in our considered opinion market purchases were not independent and were intrinsically related to the scheme and other acquisitions. The imposition of penalty under section 43A is on account of breach of a civil obligation, and the proceedings are neither criminal nor quasicriminal; the penalty has to follow. Only discretion in the provision under section 43A is with respect to quantum of penalty - penalty upheld - appeal allowed.
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