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2016 (3) TMI 93 - SECURITIES APPELLATE TRIBUNAL MUMBAI

2016 (3) TMI 93 - SECURITIES APPELLATE TRIBUNAL MUMBAI - TMI - Penalty under section 15A(b) of SEBI Act - failure to make disclosure to the stock exchanges as contemplated under regulation 7(1A) read with regulation 7(2) of Securities and Exchange Board of India Takeover Regulations, 1997 - whether the obligation to make disclosure under regulation 7(1A) read with regulation 7(2) of the Takeover Regulations, relates to purchase or sale of shares or voting rights aggregating 2% or more of the sha .....

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g 2% or more of the share capital of the target company, then the said acquirer is required to make disclosure of such purchase or sale within two days of purchase or sale under regulation 7(1A) read with regulation 7(2) of the Takeover Regulations, 1997.

Disclosure obligation under regulation 7(1A) has to be discharged in accordance with regulation 7(1A) read with regulation 7(2). Since regulation 7(2) does not contemplate for disclosure relating to sale of shares in excess of the li .....

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, Advocate i/b Crawford Bayley & Co., Sanjay Israni, Advocate For The Respondent : Mr. Kumar Desai, Advocate with Mr. Mihir Mody and Ms. Shruti Chiniwar, Advocates i/b K. Ashar & Co., Mr. Tomu Francis, Advocate i/b Economic Laws Practice Per: Justice J.P. Devadhar 1. Appellants in all these appeals are aggrieved by the orders passed by the Adjudicating Officers of Securities and Exchange Board of India ( SEBI for short) whereby appellants in the respective appeals are held liable to pay .....

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d of by this common decision. 2. Although facts of each case have very little relevance in resolving the controversy raised in these appeals, for better appreciation of the controversy, few facts in Appeal No. 97 of 2014 are set out herein below:- a) Appellants in Appeal No. 97 of 2014 together with several others were the original promoters of Hind Syntex Ltd. ( Target Company for convenience) a company incorporated under the Companies Act, 1956 on 03.12.1980. The shares of the said company wer .....

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pital) c) Between 03.01.2005 and 04.02.2005 each of the appellants sold following shares of the target company:- i) Appellant No. 1: 70600 shares (0.65% of the total capital) ii) Appellant No. 2: 3895 shares (0.04% of the total capital) iii) Appellant No. 3: 148445 shares (1.36% of the total capital) iv) Appellant No. 4: 3600 shares (0.03% of the total capital) d) Since aggregate sale of shares of the target company effected by four appellants during the aforesaid period exceeded 2% on 04.02.200 .....

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with regulation 7(1A) of the Takeover Regulations, 1997. f) On the basis of above observation, show cause notice was issued by SEBI on November 28, 2013 calling upon the appellants to show cause as to why action should not be taken against the appellants for failing to make disclosure to the stock exchanges, in the year 2005 regarding sale of more than two per cent shares of the target company as contemplated under regulation 7(1A) of the Takeover Regulations, 1997. g) In the meantime, on 03.04. .....

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the impugned order, appellants have filed Appeal No. 97 of 2014. i) It is not in dispute that the facts in other cases are similar to the facts in Appeal No. 97 of 2014. 3. Mr. Modi, learned Senior Advocate appearing on behalf of appellants in Appeal No. 97 of 2014 and Appeal No. 99 of 2014 and Mr. Sanjay Israni, learned counsel appearing on behalf of appellants in Appeal No. 311 of 2014 have submitted as follows:- a) The expression Any acquirer under regulation 7(1A) of the Takeover Regulations .....

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acquirer covered under regulation 11(1), individually purchases or sells shares of the target company aggregating to 2% or more of the share capital of the target company. Since purchase or sale aggregating to 2% or more in regulation 7(1A) is referable to aggregate purchase or sale effected by each acquirer, the AO of SEBI was not justified in aggregating the sales of all the appellants who are independent acquirers. None of the appellants individually have sold more than 2% shares of the targ .....

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ges under regulation 7(1A). c) Appellants were the original promoters of the target company and therefore, appellants could not be said to have acquired shares under regulation 11(1) as contemplated under regulation 7(1A) of the Takeover Regulations, 1997 and consequently regulation 7(1A) would not apply to the case of the appellants. d) Relying on a decision of this Tribunal in case of HB Stockholdings Ltd. v/s SEBI (Appeal No. 114 of 2012 decided on 27.08.2013) it is submitted that in the pres .....

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anges the aggregate number of shares held by each of such persons within the time stipulated therein, which obviously means that the obligation to make disclosure to the target company under regulation 7(1A) is on individual acquirer and not collectively along with other co-acquirers. f) Under regulation 8(2) of the Takeover Regulations, 1997, a promoter is required to disclose the number and percentage of shares in the target company held by him and by persons acting in concert with him. In reg .....

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cquisition of shares of the target company and not to the sale of shares. Therefore, definition of those words cannot be applied to sale of shares referred to under regulation 7(1A) of the Takeover Regulations, 1997. h) In para 9 of the impugned order (in Appeal No. 97 of 2014) it is recorded that the target company has been disclosing to the stock exchanges the shareholding of the appellants under the category of promoters. Inspite of above findings recorded in para 9, a contradictory finding i .....

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terly filing of shareholding pattern with the stock exchanges and the publication of the quarterly accounts which showed reduction in the promoters shareholding. Therefore, all the relevant and correct information was in fact in the public domain and was made available to investors and public shareholders. j) Regulation 7(2) of the Takeover Regulations, 1997 apply only to allotment/ acquisition of shares and not to the sale of shares and hence regulation 7(2) is not applicable to the present cas .....

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by all the appellants together was in excess of 2% only to the extent of 0.08%, that is, a mere 8703 shares of which the sale value was a mere ₹ 1,18,573, yet a completely disproportionate penalty of ₹ 6 lac has been imposed on the appellants in Appeal No. 97 of 2014. m) It is well established in law that the power to levy penalty is a discretionary power and the levy of penalty is not mandatory only because it is lawful to do so. In the present case, no investor has made any complai .....

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appellants in Appeal No. 97 of 2014 deserves to be deleted. For the same reason, it is submitted that the penalty imposed on appellants in other appeals also deserve to be deleted. 4. Mr. Kumar Desai, learned counsel appearing on behalf of SEBI on the other hand submitted as follows:- a) Appellants (in Appeal No. 97 of 2014) in their common reply to the show cause notice had stated that they were part of the promoter group and on sale of shares in excess of 2% the appellants had made required d .....

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ide oversight, it is not open to the appellants now to turn-a-round and contend before this Tribunal that they were not obliged to make disclosures either to the target company or to the stock exchanges under regulation 7(1A) of the Takeover Regulations, 1997. b) In the disclosure made to the stock exchanges on 02.04.2013 appellants (in Appeal No. 97 of 2014) had shown themselves as promoters and persons acting in concert with the promoters. Since the order impugned in the appeal is based on the .....

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e open offer as acquirers, that is, the acquirers and persons acting in concert with them for the purpose of substantial acquisition of shares or acquisition of control as set out therein. d) Regulation 7(1A) was inserted to the Takeover Regulations, 1997 with effect from 09.09.2002 as recommended in the report submitted by the Committee constituted under Chairmanship of Justice P. N. Bhagwati. In the said report it was recommended that acquirers holding 15% and above should disclose purchases o .....

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concert with him/them who have acquired shares or voting rights under regulation 11(1) of the Takeover Regulations, 1997, that is, holding 15% or more but less than 55% of the shares or voting rights shall be obliged to make disclosure of purchase or sale aggregating to 2% or more of the share capital of the target company, to the target company and to the stock exchange within two days of such purchase or sale along with the aggregate shareholding after such acquisition or sale. Acquirer/s hold .....

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cess of 2%, it must be held that the obligation to make disclosure under regulation 7(1A) arises when the aggregate purchase or sale of shares held by the acquirer together with persons acting in concert with him exceeds 2%. In support of the above contention reliance is placed on a decision of the Bombay High Court in case of Anand Rathi vs SEBI reported in (2002) 1 Mh. L.J. 522. g) Fact that the appellants in each appeal constitute respective promoter group and combined sale of the appellants .....

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larly the word acquirer defined under regulation 2(1) (b) would include acquires. This is evident from Section 13(2) of the General Clauses Act, 1852 which provides that the words in any Central Acts or Regulations would include the plural. Therefore, the obligation to make disclosure under regulation 7(1A) arises when the aggregate sale of shares by the acquirer together with persons acting in concert with him exceeds 2%. i) The word any acquirer in regulation 7(1A) refers to an acquirer under .....

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% or more to the target company and to the stock exchanges within 2 days of such purchase or sale, the word acquirer in regulation 7(1A) would have to be purposively interpreted to include purchase or sale of shares by the acquirer together with the persons acting in concert with the acquirer. k) Fact that the word acquirer and the word persons acting in concert are separately defined under the Takeover Regulations, 1997 does not affect the interpretation of the word acquirer in regulation 7(1A) .....

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d to make timely disclosure to the stock exchange under regulation 7(1A) have clearly violated the mandate of the Takeover Regulations, 1997. m) Fact that the disclosure made by the appellants under regulation 7(1A) to the target company have been transmitted by the target company to the stock exchanges under regulation 7(3) does not absolve the appellants of their obligation to make disclosure to the stock exchanges under regulation 7(1A). In any event, taking all mitigating factors, nominal pe .....

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, 1997 cannot escape penalty irrespective of the fact that there was mens-rea is committing the violations or not. o) Relying on a decision of this Tribunal in case of Radheshyam Tulsian & Ors v/s SEBI (Appeal No. 106 of 2005 decided on 26.04.2006) it is submitted that in view of the expression acquirer being defined under regulation 2(1)(b), the expression acquirer in regulation 7(1A) would be referable to shares held by an acquirer together with all persons acting in concert with such acqu .....

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at since the appellants in all these appeals have failed to make disclosure to the stock exchanges as contemplated under regulation 7(1A), no fault can be found with the decision in imposing penalty against the appellants and hence, all these appeals are liable to be dismissed with costs. 5. We have carefully considered the rival submissions. 6. Short question that falls for consideration in these appeals is, whether the obligation to make disclosure under regulation 7(1A) read with regulation 7 .....

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keover Regulations, 1997, as it stood prior to insertion of regulation 7(1A) and subsequent to insertion of regulation 7(1A). 8. Regulation 7 of the Takeover Regulations, 1997 as it stood prior to insertion of regulation 7(1A) on 09.09.2002 reads thus:- 7. Acquisition of 5% and more shares or voting rights of a company.- (1) Any acquirer, who acquires shares or voting rights which (taken together with shares or voting rights, if any, held by him) would entitle him to more than five per cent shar .....

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ck exchanges on which the shares of the said company are listed the aggregate number of shares held by each of such persons referred above within seven days of receipt of information under sub-regulation (1). 9. Regulation 7 of the Takeover Regulations, 1997 (as substituted by SEBI) (Substantial Acquisition of Shares and Takeovers) (Second Amendment) Regulations, 2002, ( 2002 amendment for short) with effect from 9.9.2002 reads thus:- Acquisition of 5 per cent and more shares or voting rights of .....

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has acquired shares or voting rights of a company under sub-regulation (1) of regulation 11, shall disclose purchase or sale aggregating two per cent or more of the share capital of the target company to the target company, and the stock exchanges where shares of the target company are listed within two days of such purchase or sale along with the aggregate shareholding after such acquisition or sale.] [Explanation-For the purposes of sub-regulations (1) and (1A), the term acquirer shall include .....

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under subregulations (1) and (1A) on the trading screen, the notice board and also on its website.] (3) Every company, whose shares are acquired in a manner referred to in [sub-regulations (1) and (1A)], shall disclose to all the stock exchanges on which the shares of the said company are listed the aggregate number of shares held by each of such persons referred above within seven days of receipt of information under [sub-regulations (1) and (1A)]. 10. At this stage, we may also quote regulatio .....

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ntained in Chapter II of the Takeover Regulations, 1997. Chapter II consists of regulations 6 to 9, under the heading Disclosures of shareholding and control in a listed company . As per Chapter II, disclosures have to be made by the entities specified therein at various stages as more particularly set out therein. 12. Regulation 6 in Chapter II of the Takeover Regulations, 1997 provides for disclosure by the entities specified therein on the basis of their shareholding as on the date of the sai .....

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ndment, regulation 7(1A) was inserted with effect from 09.09.2002. As per regulation 7(1A) any acquirer who has acquired shares or voting rights of a company under regulation 11(1) was required to disclose purchase or sale of the shares or voting rights of the target company aggregating 2% or more of the share capital of the target company to the target company and to the stock exchanges within two days of such purchase or sale. By the said 2002 amendment regulation 7(2) was also amended with ef .....

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idual acquirers being less than 2%, it could not be said that the appellants have violated regulation 7(1A). Secondly, assuming, disclosure obligation under regulation 7(1A) arises when purchase or sale of shares or voting rights by an acquirer together with persons acting in concert with him exceeds 2% of the share capital and that obligation has to be discharged within two days of the events specified under regulation 7(2), since regulation 7(2) does not contemplate disclosure of sale of share .....

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l of the target company is effected by any individual acquirer. Since sales of shares effected by the individual appellant acquirer in all the appeals do not exceed 2% of the share capital of the target company regulation 7(1A) does not get triggered and therefore the appellants cannot be held guilty of violating regulation 7(1A). 16. There is no merit in the above contention, because, expression acquirer defined under regulation 2(1)(e) stipulates that wherever the expression acquirer is used i .....

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as contended by the appellants. Since aggregate sale of shares effected by the appellants as persons acting in concert has exceeded 2% of the share capital of the target company, the appellants were obliged to disclose the said sale to the target company and to the stock exchange within the time stipulated under regulation 7(1A) read with regulation 7(2). Admittedly, the appellants had acquired shares of the target company as promoter group with the common object of controlling the target compan .....

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he share capital of the target company. It is not in dispute that as soon as sale of shares of the target company effected by the appellants as persons acting in concert exceeded 2% of the share capital of the target company disclosure was made by appellants to the target company as contemplated under regulation 7(1A) but no disclosure was made to the stock exchanges as required under regulation 7(1A). Having correctly understood the scope of the obligation under regulation 7(1A), appellants are .....

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provisions of law, 15% or more but less than 55% of the shares or voting rights in the target company. Admittedly, the appellants as persons acting in concert had acquired 39.68% shares of the target company and therefore, appellants were acquirer covered under regulation 11(1). When appellants as persons acting in concert sold shares of the target company in excess of 2% of the share capital of the target company, appellants were obliged to make disclosure to the target company and to the stoc .....

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red shares with persons acting in concert, when acquires additional shares or sells existing shares with persons acting in concert with him must make disclosure. Therefore, argument that regulation 7(1A) refers to purchase or sale of shares by an individual acquirer cannot be accepted. 18. Appellants contend that in regulation 11(1), 11(2) and 11(2A) of the Takeover Regulations, 1997 reference is made to the shareholding of an acquirer together with persons acting in concert with him, whereas, i .....

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refers to the shareholding of the acquirer alone it would be just and proper to hold that regulation 7(1A) gets triggered when purchase or sale of shares or voting rights effected by the acquirer alone exceeds the limits prescribed under regulation 7(1A). Similar argument is also advanced on behalf of the appellants by referring to regulation 8(2) of the Takeover Regulations, 1997 wherein reference is made to the shareholding of a promoter together with persons acting in concert with him. 19. W .....

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7(1A) is referable to a person who has acquired shares of the target company either by himself or with the persons acting in concert with him. Even after defining the expression acquirer , fact that in some regulations the expression acquirer is used and in some regulations the expression acquirer together with persons acting in concert is used, it cannot be presumed that in regulation 7(1A) the expression acquirer is referable to a person holding shares of the target company individually. In o .....

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re obliged to make disclosure to the target company and to the stock exchanges and since appellants failed to make disclosure to the stock exchanges the appellants have violated regulation 7(1A). 20. Argument of the appellants that they have not acquired shares of the target company under regulation 11(1) and hence regulation 7(1A) is not attracted is without any merit, because, regulation 11(1) does not prescribe any particular mode of acquiring shares but merely refers to acquisition of 15% or .....

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in concert with him purchases or sells shares of the target company aggregating 2% or more of the share capital of the target company, then such acquirer shall make disclosure as provided under regulation 7(1A). Fact that the appellants in all these appeals held shares of the target company more than 15% but less than 55% in accordance with law as stipulated under regulation 11(1) is not in dispute. Therefore, appellants holding shares of the target company to the extent specified under regulati .....

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atable to the shareholding of an acquirer alone and is not relatable to the shareholding of the acquirer together with persons acting in concert with the acquirer. This argument of the appellant is also without any merit, because, as noted earlier, the expression acquirer defined under regulation 2(1)(b) is referable to the shares or voting rights of the target company held by an acquirer alone or by an acquirer together with persons acting in concert with him and therefore, the information refe .....

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years in issuing the show cause notice, the impugned order is liable to be quashed and set aside. There is no merit in this contention, because, this Tribunal while setting aside the decision of SEBI on merits has clearly held in para 20 of the order, that delay itself may not be fatal in each and every case. Moreover, the Apex Court in case of Collector of Central Excise, New Delhi vs. Bhagsons Paint Industry (India) reported in 2003 (158) ELT 129 (S.C) has held that if there no statutory bar f .....

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quashed cannot be accepted. However, we make it clear that in the absence of time limit prescribed for issuing show cause notice or for completing the adjudication proceedings, SEBI cannot arbitrarily delay the proceedings and must take all reasonable steps to initiate and complete the proceedings in accordance with law as expeditiously as possible. In the facts of present case (Appeal No. 97 of 2014) it is not in dispute that sometime in February 2013 SEBI came to know that the appellants had .....

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cting in concert with that acquirer, aggregating to 2% or more of the share capital of the target company. 24. Question then to be considered is, whether the AO is justified in imposing penalty on the appellants on the ground that by failing to make disclosure of sale of shares aggregating to 2% or more of the share capital of the target company to the stock exchanges, within the stipulated time the appellants have violated regulation 7(1A) read with regulation 7(2) of the Takeover Regulations, .....

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ion of shares in excess of the limit set out therein and the said obligation had to be discharged within two days of the events specified under regulation 7(2). 26. By inserting regulation 7(1A) after regulation 7(1) in the Takeover Regulations, 1997 with effect from 09.09.2002, it is provided that where an acquirer who together with persons acting in concert with him has acquired 15% or more but less than 55% shares or voting rights of the target company and that acquirer either by himself or t .....

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igation under regulation 7(1) and 7(1A) shall be discharged within two days of the events specified under regulation 7(2). Thus, as a result of insertion of regulation 7(1A) and amendment of regulation 7(2), the disclosure obligation in relation to purchase or sale of shares referred to in regulation 7(1A) has to be made within two days of the events specified in regulation 7(2). On perusal of regulation 7(2) it is seen that the events enumerated therein relate only to acquisition of shares and .....

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wo days of the events specified under regulation 7(2). Since regulation 7(2) as amended does not contemplate any obligation to disclose sale of shares by an acquirer covered under regulation 7(1A), the question of discharging that obligation arising under regulation 7(1A) read with regulation 7(2) does not arise at all. 28. It was open to SEBI to make newly inserted regulation 7(1A) self operative, because regulation 7(1A) itself provides that the obligation set out therein has to be discharged .....

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hares referred to therein, by amending regulation 7(2) it is provided that two days time to make disclosure under regulation 7(1A) shall commence on the happening of events specified under regulation 7(2). Since regulation 7(2) (as amended) does not set out any event relating to sale of shares specified under regulation 7(1A), the question of complying with regulation 7(1A) within two days of sale of shares does not arise at all. 29. It is not even the case of SEBI, that regulation 7(1A) is self .....

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the disclosure obligation specified under regulation 7(1A) has to be discharged in the manner specified under regulation 7(1A) read with regulation 7(2) and regulation 7(2) does not provide for disclosure in relation to sale of shares in excess of the limits prescribed under regulation 7(1A), SEBI is not justified in holding that the appellants by failing to make disclosure of sales covered under regulation 7(1A) within the stipulated time, have violated regulation 7(1A) read with regulation 7( .....

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ating to disclosure of sale of shares or voting rights specified under regulation 7(1A). However, SEBI has failed to do so. 31. It is relevant to note that Takeover Regulations, 1997 have been replaced by Takeover Regulations, 2011. In the Takeover Regulations, 2011, SEBI has taken care to ensure that the disputes raised herein do not arise in those regulations. Since Takeover Regulations, 1997 is replaced by Takeover Regulations 2011, there is no need to issue any direction for taking remedial .....

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d. vs. Asher reported in (1949) 2 All.E.R. 155 it was held that in order to protect the interest of the investors and for the orderly and healthy growth of securities market if vide powers are conferred on SEBI by the Parliament, then that intention of the Parliament has to be implemented. That decision cannot be applied to the present case, because, under the Takeover Regulations, 1997 disclosure obligation arising under regulation 7(1A) of the Takeover Regulation, 1997 has to be discharged und .....

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