2023 (12) TMI 1477 - AT - SEBI

Appellant wins appeal; penalty quashed where no evidence of box trades, no pre-negotiation, bona fide closures

AT allowed the appeal and quashed the impugned order imposing penalty. Tribunal found no AO finding that the trades were 'box trades,' the investigation ... Manipulation or fraudulent/unfair trade practices - transactions in derivatives segment - trading at a pre-determined price - Imposition of a penalty - show cause notice alleged that the trades in question were “box trades” whereas the investigation report itself made it clear that the trades executed between the appellant and MSF did not qualify as “box trades” - violation of Section 12A(c) SEBI Act read with Regulations 3(d), 4(1) and 4(2)(e) of the PFUTP Regulations - selling and closing out existing positions in Nifty Put options of strike price - Due to the risk involved in waiting till the expiry - appellant decided to close out the open positions including 11400 PE and other long dated positions on the stock exchanges on three days - HELD THAT:- There is no discussion nor any finding by the AO that the trades in question are ‘box trades’. The investigation report also clearly states that the trades in question are not ‘box trades’. We are of the opinion that the appellant had a bonafide reason to close out all outstanding positions in view of the WTM order. Admittedly, in the instant case, we find that the appellant had complied with the order of the WTM and had completely stopped trading in the equity derivatives from March 24, 2017 onwards except for the trades in question. There was mutual arrangement between the appellant and MSF to execute the impugned trades at a discount is again based on presumptions. There is no direct evidence of the appellant being in contact with MSF nor there is any evidence to show that the price was negotiated between the appellant and MSF. In view of the above, it is impossible to hold that the appellant and MSF had entered into any mutual arrangement to execute the trades on all the three days at the discount to fair value. Section 18A of the SCRA permits trading in derivatives only on the stock exchange. There is no law which indicates that pre-negotiated deals cannot be executed on the stock exchange platform. The circular dated September 14, 1999 issued by SEBI makes it mandatory to the effect that negotiated trades through the broker have to be executed only on the platform of the stock exchange. We find that NSE has issued a circular dated October 28, 2022 prescribing a band of + / - 40% to the reference price. This circular indicates that a trade executed with a discount up to 40% to the fair value cannot be faulted unless it is otherwise manipulative. This circular which is dated October 28, 2022 is only procedural and sheds a light on this issue, namely, a trade executed with a discount up to 40% to the fair value would be treated as valid and genuine. If such discounts up to 40% to the fair value could not be faulted from October 28, 2022 onwards there is no reason why the said principle cannot be made applicable to transaction which occurred prior to October 28, 2022. Thus, the circular of 2022 would apply to the trades in question. Thus, we hold that trades executed at a heavy discount as stated in the show cause notice by itself does not constitute manipulation. The difference in the determination of fair value by the appellant and by NSE varies by 10%. This is because the subjective inputs were different. In our opinion, the fair value is only an indicator and not a measure to hold a trade as manipulative just because it is away from the fair value. Thus, the finding that the trades are manipulative and violative of the SEBI Act and PFUTP Regulations due to trades being away from fair value cannot be sustained. We find that the respondent has not considered the evidence properly. To hold a simple one way trade as manipulative when it is not a circular or reversal trade and in the absence of any shred of evidence of mutual arrangement with a motive to manipulate the market, the impugned order cannot be sustained and is quashed. The appeal is allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether the impugned option trades executed at significant discounts to the computed fair value constitute manipulation or fraudulent/unfair trade practices under Section 12A(c) of the SEBI Act read with Regulations 3(d), 4(1) and 4(2)(e) of the PFUTP Regulations. 2. Whether the trades qualify as 'box trades', 'synchronised trades' or pre-arranged/reversal transactions amounting to non-genuine transfers of beneficial ownership. 3. Whether the fact that quotes were obtained from one broker (and a counterparty client of that broker) or absence of an internal policy to approve trading decisions establishes collusion, pre-determination or manipulative intent. 4. Whether the WTM order prohibiting a parent entity from dealing 'directly or indirectly' in derivatives justified the appellant's decision to close out illiquid, long-dated positions, and if that circumstance negates an inference of manipulative intent. 5. Whether reliance on theoretical 'fair value' (Black-Scholes based) deviations, and post-facto regulatory guidance (NSE circular prescribing +/-40% band), can alone sustain findings of manipulation for trades executed prior to such guidance. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Whether trades at discounts to fair value constitute manipulation under Section 12A(c) and PFUTP Regulations Legal framework: Section 12A(c) prohibits acts, practices or courses of business operating as fraud or deceit in dealing in listed securities; Regulation 3(d) and Regulation 4(1)/4(2)(e) prohibit fraudulent/unfair trade practices and price manipulation, including influencing reference/benchmark prices. Precedent treatment: Tribunal affirmed that mere deviation from theoretical fair value is not per se manipulation; prior decisions (Ketan Parikh) and Supreme Court observations recognize that synchronised trades are not automatically illegal where beneficial ownership transfers genuinely occur. Interpretation and reasoning: Fair value computed by Black-Scholes is an indicatory, model-based theoretical price dependent on subjective inputs (volatility, interest rate, time to expiry). The AO applied discount percentages (23%/25%) as determinative of manipulation without specifying a legal threshold or explaining why those deviations inherently indicate fraudulent intent. The Tribunal found no objective criterion adopted by the AO to convert a model-driven deviation into proof of market manipulation. The Tribunal also noted NSE's later circular (Oct 28, 2022) recognizing discounts up to 40% as permissible absent other manipulative indicators and applied that principle retrospectively as a guiding standard to reject per se reliance on percentage deviation. Ratio vs. Obiter: Ratio - A trade being executed at a substantial discount to a theoretical fair value, standing alone, does not constitute manipulation under the SEBI Act/PFUTP Regulations. Obiter - Application of a later NSE circular retroactively as persuasive guidance. Conclusion: The AO's finding that the August 8 and August 10 trades were manipulative solely because they were executed at discounts to fair value is unsustainable; deviation from fair value is only an indicium and cannot, without more, establish fraud or manipulation. Issue 2 - Whether the trades were 'box trades', synchronised trades, or pre-arranged reversals amounting to non-genuine transfers Legal framework: Concepts of 'box trades', synchronized trades and reversal trades amounting to misleading appearance of trading are treated as manipulative where there is no transfer of beneficial ownership or where trades are executed to create artificial profits/losses. Precedent treatment: Distinguished from Rakhi Trading and Ketan Parikh - Rakhi involved contemporaneous matching and near-instant reversals with identical quantities and timing, showing prior meeting of minds and absence of beneficial transfer; Ketan Parikh recognized synchronized trades are legal where genuine transfer and market participation exist. Interpretation and reasoning: The trades in issue involved negotiated quotes obtained via a broker (who sourced a client's quote), acceptance by the seller and execution on the exchange floor without immediate reversal. There was evidence of transfer of beneficial ownership. The investigation and AO did not find or produce reversal patterns, repeated matching/ timing identical to Rakhi, or other classic indicia (frequency, twisting, reversal, no beneficial transfer) that demonstrate pre-arrangement to simulate trades. The Tribunal found the Rakhi facts distinguishable and the AO's reliance on it misplaced. Ratio vs. Obiter: Ratio - Pre-negotiated or broker-sourced trades executed on exchange platform are not per se manipulative; absence of reversals, matching frequency and evidence of no beneficial transfer undermines finding of synchronisation akin to Rakhi. Obiter - Emphasis on factual matrix distinguishing reversible synchronized schemes from negotiated exchange executions. Conclusion: The trades do not qualify as box, synchronized reversal or non-genuine trades of the Rakhi type; no evidence supports a finding of pre-arranged reversal scheme or absence of beneficial ownership change. Issue 3 - Whether obtaining quotes from a single broker, absence of internal policy, or knowledge of counterparty establishes collusion/intent Legal framework: Manipulative intent may be inferred from attending circumstances, but inference requires probative evidence of meeting of minds or collusion; no regulation mandates seeking multiple broker quotes before executing exchange trades. Precedent treatment: Tribunal and Supreme Court decisions accept that circumstantial factors can support inference, but such inferences must be based on cogent evidence (frequency, timing, matching, reversals, absence of beneficial transfer). Interpretation and reasoning: AO found manipulative because trades involved one broker and alleged knowledge of counterparty; Tribunal reviewed Bloomberg chats and call transcripts and concluded appellant had sought quotes from multiple sources (Citigroup Global and Bank of America in addition to MSICPL). There was no evidence that the appellant knew the ultimate counterparty or negotiated price directly with that client. The absence of an internal policy was insufficient to infer manipulative intent given the exceptional circumstance of a parent prohibition order forcing closing of positions; there is no statutory requirement to obtain multiple broker quotes. Ratio vs. Obiter: Ratio - Single-broker negotiation, by itself, without further corroborative evidence of collusion, does not establish manipulative intent; lack of internal policy is not decisive absent other indicia. Obiter - Confirmation that exigent regulatory orders may justify atypical trading decisions. Conclusion: The AO's findings based on single-broker contact, absence of policy and presumed knowledge of counterparty are not supported by the record and do not establish collusion or manipulative intent. Issue 4 - Effect of supervisory prohibition (WTM order) on the legality/intent of closing out positions Legal framework: Orders prohibiting direct or indirect dealings by a parent may encompass wholly owned subsidiaries funded by the parent; parties may be required to square off existing positions. Precedent treatment: Not directly contested as a legal principle; Tribunal interprets 'directly or indirectly' broadly to include funded subsidiaries. Interpretation and reasoning: The Tribunal concluded the WTM order prohibiting the parent from dealing 'directly or indirectly' in F&O plainly encompassed the wholly owned, parent-funded subsidiary, thus creating a bona fide and compelling reason to close out illiquid long-dated positions rather than hedge or wait to expiry. This commercial compulsion reduced the probative value of trading at a discount as indicative of manipulation. Ratio vs. Obiter: Ratio - Regulatory prohibition on parent dealings may provide bona fide commercial explanation for closing positions at discounts and weakens an inference of manipulative intent. Obiter - None. Conclusion: The WTM order furnished a legitimate, compelling commercial rationale for closing out positions, and that circumstance negates an inference that the trades were undertaken with manipulative intent. Issue 5 - Use of modelled fair values and retrospective reliance on exchange guidance Legal framework: Fair value models (Black-Scholes) are informative but depend on subjective inputs; regulatory/exchange circulars provide procedural guidance but need not create ex post facto liability criteria unless supported by evidence of manipulation. Precedent treatment: Tribunal treated NSE circular of Oct 28, 2022 (±40% band) as procedural guidance illustrating that discounts up to 40% are not per se manipulative and applied that principle as persuasive to prior transactions. Interpretation and reasoning: Both the AO and NSE used modelled fair values that differed because of differing inputs. The Tribunal emphasized that fair value is an indicator, not dispositive proof of manipulation. Absence of an objective threshold in the AO's reasoning rendered the manipulation finding arbitrary. The Tribunal treated the later NSE guidance as persuasive on the question whether percentage deviations alone can sustain manipulation findings and applied that reasoning to quash the AO's order. Ratio vs. Obiter: Ratio - Modelled fair value deviations are insufficient, in isolation, to prove manipulation; absence of an objective standard renders percentage-based findings arbitrary. Obiter - Application of later exchange guidance as persuasive standard to prior transactions. Conclusion: The AO's exclusive reliance on deviations from theoretical fair value (without other manipulative indicia or an articulated threshold) cannot sustain a finding of manipulation; the later exchange guidance reinforces that discounts alone do not establish fraud. Overall Disposition (conclusive point) The Tribunal concluded that the AO's findings of manipulation are unsupported by evidence and legal principle: (a) deviations from fair value alone do not establish manipulation; (b) no evidence of box/reversal/synchronised scheme or absence of beneficial transfer; (c) single-broker involvement and lack of internal policy do not, without more, prove collusion; and (d) the parent prohibition order supplied a bona fide commercial rationale for closing positions. The AO's order imposing penalty is quashed. (Ratio: quashing of penalty where only indicium is price deviation absent corroborative evidence of manipulative intent.)