TaxTMI 
TaxTMI 
2025 (6) TMI 1889
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....e issuance of the RPS. The Interim Order was passed against the Company and its directors/ promoters, including Mr. Aman Kumar (hereinafter referred to as "the Noticee"). 2. Pursuant to the Interim Order, the Noticee filed its reply before SEBI, vide letter dated May 2, 2017. Taking into account the submissions of the Noticee, an opportunity of hearing was provided to the Noticee on May 15, 2018 which was not availed by the Noticee. Thereafter, a final order dated July 13, 2018 (hereinafter referred to as "Final Order"), in respect of the Noticee (Mr. Aman Kumar) was passed by SEBI. The Final Order passed by SEBI, inter alia, observed that the Noticee was one of the directors of the Company during the time when the company offered and issued RPS to the public. 3. Vide the said Order, inter alia, the following directions were issued: "a. Mr. Aman Kumar shall, jointly and severally, with other Noticees as per Order dated April 5, 2017 refund money collected through the offer and allotment of preference shares, with an interest of 15% per annum (the interest being calculated from the date when the repayments became due in terms of Section 73(2) of the Companies Act, 195....
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....adjourned to December 19, 2024. The Noticee, vide letter dated December 3, 2024, made his written submissions in the matter. 6. On the scheduled date of hearing, the AR of the Noticee appeared through WEBEX platform and made oral submissions. The hearing in the matter was concluded, and as requested, the Noticee was granted 14 days' time to file its post-hearing written submissions. 7. Thereafter, vide email dated January 20, 2025, the AR of the Noticee filed post-hearing written submissions in the matter. The submissions made by the Noticee vide emails dated December 3, 2024 and January 20, 2025 are summarized as under: a. The Order passed did not specify the role of the Noticee or produce any document/ resolution which was signed by the Noticee for issuance of the RPS; b. The Interim and Final Orders have been passed on the presumption that the Noticee was a promoter in the Company with effect from February 4, 2011, with the director identification number 03376344. However, the said presumption is incorrect as the date of incorporation of the Company is February 17, 2011 and only three persons are shown as directors (i.e., Mohammad Qamar, Susweta Dutta, Md....
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....common submission made by him before Hon'ble SAT and me is that all the deeds and acts of the Company were done by its Promoter - Managing Director. It has also been submitted that the direction to repay the amount raised by a company can only be issued to the company itself and the officer in default. 11. In this regard, as noted earlier, the Interim and the Final Orders were passed in respect of TRIL and its directors/promoters, for raising money through offer and issue of RPS to the public, in contravention of the provisions of Sections 56, 60 read with 2(36), 73, and Section 67(3) of the Companies Act, 1956. In this context, the relevant extract of Section 73 of the Companies Act, 1956 is reproduced as under: "Allotment of shares and debentures to be dealt in on stock exchange. 73. (1) Every company intending to offer shares or debentures to the public for subscription by the issue of a prospectus shall, before such issue, make an application to one or more recognised stock exchanges for permission for the shares or debentures intending to be so offered to be dealt with in the stock exchange or each such stock exchange. (1A) ... (2) Where ....
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....of the officers specified in clauses (a) to (c), any director or directors who may be specified by the Board in this behalf or where no director is so specified, all the directors: Provided that where the Board exercises any power under clause (f) or clause (g), it shall, within thirty days of the exercise of such powers, file with the Registrar a return in the prescribed form." 13. A perusal of the aforesaid provision indicates that the expression 'Officer who is in default' would mean managing director or managing directors, whole time director or whole time directors, the manager, the secretary or any person in accordance with whose directions or instructions the Board of Directors of the company is accustomed to act and would also include any person charged by the Board with the responsibility of complying with the provisions of the Companies Act. Section 5(g) of the Companies Act further stipulates that where the company does not have any of these officers specified in clauses (a) to (c), all the directors would be deemed to be officers in default. 14. In view of the above, regardless of the variance in the submission made by the Noticee before Hon'ble SAT and m....