2023 (8) TMI 1671 - AT - SEBI

Found violating Regulation 3(1) SAST by acquiring over 25% and misrepresenting capital; Rs.25 lakh penalty under Sec 15A(b), Regs 29(2)/29(3)

AT upheld WTM order finding appellants, acting in concert, violated Regulation 3(1) of the SAST Regulations by acquiring >25% and creating a false ... Act of acquisition of shares by the appellants acting in concert as a connected group was in contravention to Regulation 3(1) of the SAST Regulations - funds received by the company in pursuance to the allotment of preferential shares were not actually invested in the company but the money only moved from one bank account to another and gave a false impression of capital infusion of the company - penalty of Rs. 25 lakh has been imposed under Section 15A(b) of SEBI Act’ for failure to furnish information As contended that the words “or who furnishes or files false, incorrect or incomplete information ” was inserted by Act No. 13 of 2018 with effect from March 8, 2019 whereas the alleged non-disclosure was during the period 2015 and, therefore, the amended provision of Section 15A(b) is not applicable. HELD THAT:- In our opinion, the amended provision is not relevant in as much as the provision existing prior to 2018 also required the incumbent to furnish any information failure of which would lead to imposition of penalty. The insertion made by Act No. 13 of 2018 was only clarificatory. The words “false, incorrect or incomplete information, return, report, books or other document” elucidates the already existing requirement of filing or furnishing information. The insertion, thus, does not, in any way, entitle the appellant from escaping the violation of non-disclosure. The contention of the appellants, in this regard, cannot be accepted and is rejected and we hold that the penalty imposed under Section 15A(b) of the SEBI Act read with Regulation 29(2) and 29(3) of the SAST Regulations was rightly imposed. The violation is under Regulation 3(1) wherein the acquisition of shares was more than 25%. Under Regulation 3(2), the acquisition is for additional shares which is not applicable in the instant case. Admittedly, the appellants were acting in concert and even though the appellants refuted this fact, we have found in Lata Bejgam vs. SEBI [2023 (6) TMI 1510 - THE SECURITIES APPELLATE TRIBUNAL MUMBAI] that the appellants were acting in concert and were connected to each other. Thus, the finding of the WTM that the appellants were acting in concert does not suffer from any error. For the reasons stated aforesaid, we do not find any error in the impugned order passed by the WTM. ISSUES PRESENTED AND CONSIDERED 1. Whether the appellants constituted Persons Acting in Concert (PAC) / were connected so as to attract the obligations under the SAST Regulations. 2. Whether the acquisition pursuant to preferential allotment triggered the obligation to make a public announcement (open offer) under Regulation 3(1) or under Regulation 3(2) of the SAST Regulations. 3. Whether the appellants' failure to disclose change in group shareholding within two trading days violated Regulation 29(2) read with Regulation 29(3) of the SAST Regulations. 4. Whether penalty under Section 15A(b) of the SEBI Act (as amended by Act No. 13 of 2018) could be imposed for non-disclosure that occurred prior to the amendment and whether the amendment is clarificatory or substantive. 5. Whether the imposition of directions restraining market access for five years and the monetary penalty (jointly and severally) were justified in view of the findings on concerted acquisition and non-disclosure. ISSUE-WISE DETAILED ANALYSIS Issue 1 - PAC / Connection Legal framework: Regulation 2(1)(q)(2)(iv) (definition of 'persons acting in concert') under the SAST Regulations and the general framework of identifying connected persons for takeover obligations. Precedent Treatment: The Tribunal relied on findings in connected proceedings (Appeal No. 924 of 2022 and connected appeals decided June 15, 2023) upholding that the same set of entities were acting in concert and connected. Interpretation and reasoning: The WTM examined material evidence from the investigation showing inter-connections among the non-promoter allottees, fund movements from entities connected with the company and promoters, and the pattern of preferential allotment. The Tribunal accepted the WTM's finding that appellants were connected and acted in concert, noting the earlier consistent determination in related appeals, and held that the finding did not suffer from error. Ratio vs. Obiter: Ratio - the appellants constituted PACs based on connectedness and coordinated acquisition; Obiter - reliance on common investigative facts across connected appeals reinforced but did not independently decide new law. Conclusion: The appellants were persons acting in concert / connected for purposes of the SAST Regulations; the WTM's finding is upheld. Issue 2 - Applicability of Regulation 3(1) v. Regulation 3(2) Legal framework: Regulation 3(1) prohibits acquisition which, together with shares held by PACs, entitles them to exercise 25% or more of voting rights without making a public announcement (open offer). Regulation 3(2) deals with additional acquisitions within a financial year exceeding 5% where the acquirer already holds 25% or more but less than maximum permissible non-public shareholding. Precedent Treatment: No novel precedent overruled; Tribunal analysed statutory text and its application to the factual percentage movement. Interpretation and reasoning: The Tribunal parsed the statutory language and the facts: pre-allotment aggregate shareholding of the group was 24.10% and post-allotment rose to 88.03%, i.e., in excess of 25%. That is a classic trigger of Regulation 3(1) (acquisition resulting in 25%+ aggregate voting rights). Regulation 3(2) addresses incremental acquisitions by an already 25%+ acquirer within a financial year and is therefore inapplicable where the initial acquisition itself crosses the 25% threshold. The appellants' contention that Regulation 3(2) was triggered was held to be patently erroneous. Ratio vs. Obiter: Ratio - the preferential allotment resulting in aggregate holdings crossing 25% attracts Regulation 3(1); Obiter - explanatory remarks concerning the inapplicability of Regulation 3(2) to the facts. Conclusion: The acquisition contravened Regulation 3(1) (obligation to make an open offer); Regulation 3(2) did not apply. Issue 3 - Failure to disclose under Regulation 29(2) / 29(3) Legal framework: Regulation 29(2) requires disclosure to the company and stock exchange within two trading days where shareholding of acquirer together with PACs changes by more than 2%; Regulation 29(3) provides related compliance obligations. Precedent Treatment: The WTM's application of the disclosure regime to a group PAC acquisition follows established statutory disclosure principles; Tribunal upheld the WTM's factual findings. Interpretation and reasoning: The WTM found the group's shareholding changed well beyond the 2% threshold and that no disclosure was made within the prescribed timeline. The Tribunal accepted those findings, noting the gravity of non-disclosure given the magnitude of post-allotment shareholding and the connected nature of the entities. The alleged practice of funds merely moving between related bank accounts, creating a false impression of capital infusion, reinforced the materiality of the non-disclosure. Ratio vs. Obiter: Ratio - non-disclosure under Regulation 29(2)/(3) was established and actionable; Obiter - factual observations about the nature of fund movements and their implications for market transparency. Conclusion: The appellants violated Regulation 29(2) read with Regulation 29(3) by failing to make timely group disclosure of the change in shareholding. Issue 4 - Applicability and effect of amendment to Section 15A(b) (Act No. 13 of 2018) Legal framework: Section 15A(b) prescribes penalty for failure to file returns or furnish information; Act No. 13 of 2018 inserted language expressly covering furnishing or filing 'false, incorrect or incomplete information' with effect from March 8, 2019. Precedent Treatment: The Tribunal examined the temporal scope and substance of the amendment and whether it created a new offence or was clarificatory. Interpretation and reasoning: The Tribunal held that the pre-2019 text already imposed liability for failing to file or furnish information within the time specified; the insertion of express words relating to 'false, incorrect or incomplete information' merely elucidates the existing requirement to furnish accurate information. The Court treated the amendment as clarificatory rather than creating a new substantive offense or an expansion that would be inapplicable to pre-amendment conduct. Therefore, penalty under Section 15A(b) could be imposed for the 2015 non-disclosure. The appellants' contention that the amended provision was not applicable due to temporal operation was rejected. Ratio vs. Obiter: Ratio - Section 15A(b), interpreted with the 2018 insertion as clarificatory, permits imposition of penalty for non-disclosure that occurred prior to the insertion; Obiter - characterisation of the legislative intent as elucidatory of existing obligations. Conclusion: The penalty under Section 15A(b) read with Regulations 29(2)/(3) was lawfully imposed for the pre-2019 non-disclosure; the amendment did not afford appellants an escape. Issue 5 - Appropriateness of directions restraining market access and monetary penalty Legal framework: Sections 11(1), 11(4) and 11B(1) of the SEBI Act empower SEBI to issue directions including restraint from dealing in securities; Section 15A(b) and Section 15H (penalties for takeover violations) provide monetary consequences. Precedent Treatment: The WTM exercised powers under the SEBI Act and SAST Regulations to both restrain market access and levy monetary penalty in view of serious violations; the Tribunal reviewed exercise of discretion for error of law or perversity. Interpretation and reasoning: Given the findings of concerted acquisition resulting in control without an open offer, coupled with failure to disclose material change and the investigative finding that allotment proceeds did not represent genuine capital infusion, the WTM considered the violations grave. The Tribunal found no error in the WTM's assessment of gravity or in the imposition of the restraint for five years and aggregate penalty of Rs. 1.25 crore jointly and severally. The Tribunal did not find any mitigating legal principle sufficient to set aside the directions or penalty. Ratio vs. Obiter: Ratio - restraints and penalties imposed were proportionate and within the statutory powers on the facts established; Obiter - evaluative remarks on the seriousness of misleading capital infusion. Conclusion: The directions restraining market access for five years and the monetary penalty were justified and are upheld; the appeals fail.