TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 137
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....he petitioner's late husband, was engaged in the manufacture of CDs, DVDs, and other optical media. In 2012, MBIL sought relief under the Corporate Debt Restructuring ("CDR") Scheme of the Reserve Bank of India. Pursuant thereto, the Corporate Debt Restructuring Empowered Group ("CDR-EG"), comprising a consortium of lender banks, commissioned a Stock Audit and a Techno-Economic Viability ("TEV") study. Based on the findings of the Stock Audit report dated 16.06.2012 prepared by M/s RRCA & Associates and the TEV Report dated 09.06.2012 prepared by M/s Ernst & Young, MBIL was classified as a "Class B" borrower and formally admitted into the CDR framework. Notably, MBIL was not categorized as "Class C" or "Class D," which are typically assigned to entities suspected of fraud, misfeasance, or other financial irregularities. 3. In 2017, MBIL was admitted into insolvency proceedings before the National Company Law Tribunal, New Delhi. Subsequently, the Interim Resolution Professional ("IRP"), acting at the instance of the Committee of Creditors ("CoC"), commissioned a Forensic/Special Purpose Audit of MBIL, covering the financial years 2015-2016, 2016-2017 and 2017-2018 (up to the i....
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....a Show Cause Notice under the 'Wilful Defaulter Master Circular'. The declaration was challenged in W.P. (C) No. 2336/2023 titled Ratul Puri vs. State Bank of India & Anr. (hereinafter "SBI judgement"). As recorded in the SBI judgment dated 20.03.2023, SBI undertook not to act upon the Review Committee's findings, and the wilful defaulter proceedings stood dropped. No appeal was filed against the said judgment, which has attained finality. 10. The grievance of the petitioner is that despite the aforementioned judicial findings, including the binding decision in BOB judgement, the impugned order dated 05.09.2024 has been issued by the respondent, relying upon the same forensic audit reports. The petitioner, being an ex/suspended director, emphasizes that the impugned investigation may prejudice her rights and interests. SUBMISSIONS ON BEHALF OF THE PETITIONER 11. In the above conspectus, learned senior counsel for the petitioner has contended as under: (i) Relying upon the judgment of the Division Bench of Bombay High Court in Parmeshwar Das Agarwal & Ors. vs. The Additional Director (Investigation) Serious Fraud Investigation Office & Ors. 2016 SCC OnLine BOM 9276,....
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....It is submitted that in light of the reasons and circumstances detailed in the BOB and SBI judgments, any direction by the Central Government to initiate an investigation under Section 212(1)(c) of the Companies Act, 2013 is untenable. 12. Lastly, it is submitted that confronted with the infirmities in the impugned order, the counter-affidavit filed on behalf of the respondent seeks to furnish certain additional reasons in justification thereof. It is submitted that these additional reasons, are liable to be disregarded in view of the legal position laid down by the Supreme Court in Mohinder Singh Gill & Another vs. The Chief Election Commissioner, New Delhi & Ors., 1978 1 SCC 405, Opto Circuit India Ltd. vs. Axis Bank & Ors. 2021 6 SCC 707 and Ritesh Tiwari & Anr. vs. State of Uttar Pradesh & Ors., 2010 10 SCC 677. Without prejudice, learned senior counsel for the petitioner submits that even the purported additional grounds sought to be relied upon are squarely covered and precluded by the findings in the BOB Judgment. 13. For the above reasons, it is submitted that the present petition merits acceptance, and the impugned order is required to be set aside. SUBMISSIONS ON BEHAL....
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....sis of the finding mentioned in Point 2(a) to (g) of the impugned order (Page 27-28 of the petition). The said findings are based on the Sikdar Report (page 30 onwards in the petition) and GSA Report (page 195 of the petition). The relevant page number with respect to the said findings are as follows: Finding at Relevant page no. in the petition and para Para 2 (a) 42 (internal page no.13) at Para VI A. Para 2 (b) 44 (internal page no. 15) at Para d Para 2 (c) 45 (internal page no. 16) at Para C Para 2 (d) 46 (internal page no. 17) at Para D Para 2 (e) 47 (internal page no. 19) at Para G Para 2 (f) 48 (internal page no. 20) at Para H Para 2 (g) 49 (internal page no. 20) at Para J 18. Finally, it is contended that no prejudice will be caused to the petitioner if a comprehensive investigation is undertaken into the affairs of MBIL. REASONING AND FINDINGS: 19. Having considered the rival contentions of the parties, this Court finds that there is merit in the petitioner's contention that the impugned order cannot withstand the scrutiny of law. The reasons are enumerated as under: A. The impugned order is in contravention of the dicta laid down in the judg....
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....n passed by a company that the affairs of the company ought to be investigated; or (c) in public interest it may order an investigation into the affairs of the company. (2) Where an order is passed by a court or the Tribunal in any proceedings before it then the affairs of a company ought to be investigated, the Central Government shall order the investigation into the affairs of that company. (3) For the purposes of this section, the Central Government may appoint one or more persons as inspectors to investigate into the affairs of the company and to report thereon in such manner as the Central Government may direct." 42. Therefore, a perusal of this section would indicate that the Central Government must form an opinion, that opinion must be that it is necessary to investigate into the affairs of a company. The Central Government can act on the receipt of a report of the Registrar or Inspector under section 208 or on intimation of a special resolution passed by a company that its affairs are to be investigated or in public interest. Thus, there is a discretion to order an investigation into the affairs of the company. XXX XXX XXX 45. The Registrar of Companies had al....
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....nment to order an investigation into the affairs of the company and that power has to be exercised if there is an order passed by a Court or a Tribunal in any proceedings before it to the effect that the affairs of a company ought to be investigated. Thus sub- section (1) of section 210 confers a discretion while sub-section (2) is mandatory in terms. By sub-section (3) and when the Central Government orders an investigation into the affairs of the company, it may appoint one or more persons as Inspectors so as to carry out this task and to report thereon in such manner as the Central Government may direct. By section 212 the seventeen sub-sections thereof enable investigation into the affairs of a company by Serious Fraud Investigation Office. This power is without prejudice to the provisions of section 210. This power is to be exercised if the Central Government is of the opinion that it is necessary to investigate into the affairs of a company by the SFIO. Therefore, the power to investigate into the affairs of company is common to both provisions. In the former there are three clauses (a) to (c) in sub-section (1) of section 210 and the investigation is to be carried out by the....
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....der under challenge, did not spell out any circumstances, except outlining its power under the above sections to order investigation into the affairs of a company in public Interest. None disputes that power or its existence. In para 2 of the impugned order, however, a reference is made to the report of the Registrar of Companies, West Bengal, dated 13th January, 2016. We have already held that the findings in this report are not enough for the Central Government to exercise the drastic power. Something more was required and to be established as circumstances or material enough for exercise of the power. That is clearly lacking in this case. 49. This is the only basis, namely, the report of the Registrar of Companies, West Bengal, or its contents which has enabled the Central Government to exercise its powers under section 212(1)(c). It is, therefore, apparent that it has not necessarily acted in terms of its power conferred by section 212 to direct investigation into the affairs of the company in public interest. The foundation for reaching the opinion or satisfaction is the report of the Registrar. We have referred to the details in that report and we are of the firm opinion th....
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....06, submit a report in writing to the Central Government, along with such documents, if any, and the report may also include or recommend further investigation into the affairs of the company, if necessary. (iii) Section 210 contemplates investigation into the affairs of a company: (a) on the receipt of a report of the Registrar or inspector under Section 208; (b) on intimation of a special resolution passed by a company that the affairs of the company ought to be investigated; or (c) in public interest. (iv) Where a report under Section 208 does not find any occasion to conduct a further investigation, the same has a bearing on the exercise of power under Section 212(1)(c) of the Act, 2013 (as in the facts of the case before the Bombay High Court). (v) Where recourse is sought to be taken to Section 212(1)(c) of the Act, 2013, the same ought to be "based on the report of the Registrar or Inspector under Section 208; on intimation of a special resolution passed by a company that its affairs are required to be investigated; in the public interest or on the request from any department of the Central Government or the State Government" (vi) It is necessary for the Centra....
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....eme Court that the concerned Department of the Central Government which deals with Companies is "presumed to be an expert body in Company Law Matters1". The same position has been reiterated by the Bombay High Court in Parmeshwar Das Agarwal (supra). 29. It is incomprehensible as to why the Central Government was remiss in conducting an independent inspection despite the same having been ordered pursuant to an inquiry under Section 206(4) of the Companies Act, 2013, as far back as in 2018. 30. It is notable that that in Parmeshwar Das Agarwal (supra), the Bombay High Court found that where a report under Section 208 does not find any occasion to conduct a further investigation, the same has a bearing on the exercise of power under Section 212(1)(c) of the Act, 2013. In the present case, the situation is much worse. Despite a recommendation that an inspection of the books of accounts and papers of the concerned company be undertaken under Section 206(5) of the Companies Act, 2013, the same was apparently not done. Apparent false / mis-statement on the face of the impugned order; non- existence of any "demonstrable circumstances" on the basis of which any "opinion" could be formed....
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....a distribution of assets being made in accordance with section 53. (3) For the purposes of sub-section (2), a preference shall not include the following transfers- a) transfer made in the ordinary course of the business or financial affairs of the corporate debtor or the transferee; b) any transfer creating a. security interest in property acquired by the corporate debtor to the extent that- (i) such security interest secures new value and was given at the time of or after the signing of a security agreement that contains a description of such property as security interest and was used by corporate debtor to acquire such property: and (ii) such transfer was registered with an information utility on or before thirty days after the corporate debtor receives possession of such property: Provided that any transfer made in pursuance of the order of a court shall not preclude such transfer to be deemed as giving of preference by the corporate debtor. Explanation.- For the purpose of sub-section (3) of this section, "new value" means money or its worth in goods, services, or new credit, or release by the transferee of property previously transferred to such transferee in a t....
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....ction has not taken place in the ordinary course of business of the corporate debtor. Our understanding of the Section 45(2) of the Insolvency and Bankruptcy Code,2016 means that an undervalued transaction is one where corporate debtor makes a gift or transfers one or more assets for insignificant consideration, provided that such transaction has not taken place in the ordinary course of business of the corporate debtor. For transaction made with a related party the relevant period is two years preceding the insolvency commencement dale and for transactions made with any other person this period is one year preceding the insolvency commencement date. In compliance with the above section. we have verified the transaction of Sales and Purchases including the transactions to related party and we have not come across any transaction to be covered u/s 45 of IBC,2016 as per our observation given below: a. Verification of Financial and Inventory records Moser Baer India Ltd (MBIL) has been selling finished goods to Moser Baer Entertainment Ltd (MBEL) and also purchasing the goods from the MBEL which is a related party. The detail of sale and purchase during the year 2016-17 and 2015....
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....under- (1) Where the corporate debtor has been a party to an extortionate credit transaction involving the receipt of financial or operational debt during the period within two years preceding the insolvency commencement date, the liquidator or the resolution professional as the case may be, may make an application for avoidance of such transaction to the Adjudicating Authority if the terms of such transaction required exorbitant payments to be made by the corporate debtor. (2) The Board may specify the circumstances in which a transactions which shall be covered under sub-section (1). Explanation .- For the purpose of this section, it is clarified that any debt extended by any person providing financial services which is in compliance with any law for the time being in force in relation to such debt shall in no event be considered as an extortionate credit transaction. We understand that the Extortionate credit transactions are the credit transactions which involve the receipt of financial or operational debt to the corporate debtor. They are termed as extortionate because the terms are either unconscionable, or require the corporate debtor to make exorbitant payments in r....
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....n." 35. Thus, the existence of any PUFE transactions was expressly negated by the Sikdar Report. 36. Likewise, in the GSA Report, it has been concluded as under: "i. The period of our review did not present an opportunity for any diversion of funds. Imbalance in the capital structure indicates diversion of short term funds for long term uses arising out of investments/ advances credit afforded to associate companies prior to the period of our assignment. XXX XXX XXX xiv. Most of the transaction related to assets and leases were entered into the company in the period before our review and therefore shall not be able comment on the fraudulent and extortionate transactions." 37. As such, even the GSA Report does not arrive at the conclusion that is sought to be attributed to it in the impugned order. 38. In the circumstances, it is apparent that the impugned order, in paragraph 2 thereof, wrongly records that "in Moser Bear India Limited (MBIL) following Preferential, Undervalued, Fraudulent and Extortionate transactions (PUFE) transactions were noticed in the Forensic Audit Report ... ". As noticed, the said assertion is belied by a bare perusal of the concerned Audit repor....
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....r Section 212 of the Act, 2013. 43. In Barium Chemicals Limited vs. Company Law Board (supra) M. Hidayatullah, J and J.M. Shelat, J, while considering the provisions of Section 237(b) of the Companies Act, 1956 (which also contemplates the formation of "opinion") came to the conclusion that though the power under Section 237(b) is a discretionary power (as in the case of Section 212(1)(c) of the Act, 2013), the existence of relevant circumstance/s on the basis of which such an opinion if founded must be "objectively established" and must be "demonstrable". 44. The judgment of J.M. Shelat, J in Barium Chemicals Limited vs. Company Law Board (supra) holds as under: "31. The object of Section 237 is to safeguard the interests of those dealing with a company by providing for an investigation where the management is so conducted as to jeopardize those interests or where a company is floated for a fraudulent or an unlawful object. Clause (a) does not create any difficulty as investigation is instituted either at the wishes of the company itself expressed through a special resolution or through an order of the court where a judicial process intervenes. Clause (b), on the other hand, l....
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....ered and left the opinion and even the existence of circumstances from which it is to be formed to a subjective process. This analysis finds support in Gower's Modern Company Law (2nd Edn.), p. 547 where the learned author, while dealing with Section 165(b) of the English Act observes that "the Board of Trade will always exercise its discretionary power in the light of specified grounds for an appointment on their own motion" and that "they may be trusted not to appoint unless the circumstances warrant it but they will test the need on the basis of public and commercial morality". There must therefore exist circumstances which in the opinion of the Authority suggest what has been set out in sub-clauses (i), (ii) or (iii). If it is shown that the circumstances do not exist or that they are such that it is impossible for any one to form an opinion therefrom suggestive of the aforesaid things, the opinion is challengeable on the ground of non-application of mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the statute." 45. Again, in the case of Rohtas Industries vs. SD Aggarwal, (supra), it was held in the judgment rendered ....
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....ompany or any of its members. According to him though the opinion to be formed by the Central Government is subjective, the existence of circumstances set out in clause (b) is a condition precedent to the formation of such an opinion and therefore the fact that the impugned order contains recitals of the existence of those circumstances, does not preclude the court from going behind those recitals and determining whether they did in fact exist and further whether the Central Government in making that order had taken into consideration any extraneous consideration. But according to the learned Attorney the power conferred on the Central Government under clause (b) of Section 237 is a discretionary power and the opinion formed, if in fact an opinion as required by that section has been formed, as well as the basis on which that opinion has been formed are not open to judicial review. In other words according to the learned Attorney no part of Section 237(b) is open to judicial review: the matter is exclusively within the discretion of the Central Government and the statement that the Central Government had formed the required opinion is conclusive of the matter. Courts both in this....
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....the clause permitted the authority to say that it has formed the opinion on circumstances which in its opinion exist and which in its opinion suggest an intent to defraud or a fraudulent or unlawful purpose." 46. It was further held as under: "11. Coming back to Section 237(b), in finding out its true scope we have to bear in mind that that section is a part of the scheme referred to earlier and therefore the said provision takes its colour from Sections 235 and 236. In finding out the legislative intent we cannot ignore the requirement of those sections. In interpreting Section 237(b) we cannot ignore the adverse effect of the investigation on the company. Finally we must also remember that the section in question is an inroad on the powers of the company to carry on its trade or business and thereby an infraction of the fundamental right guaranteed to its shareholders under Article 19(1)(g) and its validity cannot be upheld unless it is considered that the power in question is a reasonable restriction in the interest of the general public. In fact the vires of that provision was upheld by majority of the Judges constituting the Bench in Barium Chemicals case principally on t....
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....h Court is not constituted a Court of Appeal over the judgment of the Board. The Court has merely to consider whether in arriving at its decision the Board has restricted itself to the enquiry contemplated to be made and has taken into consideration all the relevant circumstances and that its decision is not vitiated by irrelevant or extraneous matters." 48. The Division Bench of the Bombay High Court in Parmeshwar Das Agarwal (supra) placed reliance on the aforesaid judgment, as well as on the following paragraphs of Hariganga Cement Ltd. vs. Company Law Board 1986 SCC OnLine Bom 337: "11. Some of the principles governing the orders passed by the Company Law Board under section 237(b) of the Companies Act may be borne in mind. The earlier view of the Supreme Court reported in (1952) 2 SCC 606 AIR 1953 SC 53 was not approved subsequently. In the said decision in 1953, the Supreme Court had held that "whenever a provision of law confers certain power on an authority on its forming a certain opinion on the basis of certain facts, the courts are precluded from examining whether the relevant facts on the basis of which the opinion is said to have been formed were in fact existed." T....
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.... established that there were no materials upon which the authority could form the requisite opinion, the court may infer that the authority did not apply its mind to the relevant facts. The requisite opinion is then lacking and the condition precedent to the exercise of the power under Section 237(b) is not fulfilled. 15. The discretionary powers vested in the Company Law Board under Section 237(b) of the Companies Act are of a very wide nature and the said powers have to be exercised with great conception and retrospection and in a judicious manner. The powers under Section 237 have been conferred on the Central Government in the faith that it will be exercised in a reasonable manner. The Department of the Central Government which deals with companies is presumed to be an expert body in company law matters. Therefore, the standard that is prescribed under Section 237(b) is not the standard required of an ordinary citizen by that of an expert. Hence, if the court comes to the conclusion that no reasonable authority would have passed the impugned order on the material before it, then the same is liable to be struck down. 16. The formation of the opinion under Section 237 of the ....
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....ted) from certain selected portions of the Sikdar Report. The following table is illustrative of the same. Impugned order dated 05.09.2024 Sikdar Report (a) MBIL has sold finished goods to its subsidiary Moser Bear Entertainment Limited (MBEL) regularly although there was substantial non-recovery of its dues from MBEL. Whereas, MBEL has made recovery of its sundry debtor on regular basis but payment to it holdings company MBIL has not been made regularly. As on 31.03.2017, MBIL has made provision of Rs 57.48 Crores for MBEL debtor. Similarly, sales made to other related parties have also not been realized and provision for the same has also been made in books of accounts. Total provision against sales to related parties has been made for Rs 167.47 Cr as on 31.03.2017: VI A. Moser Baer India Limited (MBIL) has sold Finished Goods to its Subsidiary, Moser Baer Entertainment Limited (MBEL) regularly inspite of the fact that substantial non-recovery of its dues from MBEL. Our scrutiny of Financial Statements of MBEL also revealed that MBEL has made recovery of its Sundry Debtor on regular basis but payment to its creditor MBIL has not been made regularly, although the outstanding ....
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....dyog Vihar Phase-11, GNIDA, Gautam Budha Nagar, UP admeasuring 381418.230 sq. ml. xxx XXX XXX The documents provided to us does not give any information about balance portion of land i.e. 44131.07 sq, mt. (f) MBIL has made provision for slow moving inventory of stores & spares and consumables for Rs 24.62 crores was made during FY 2016-17. VI H. Provision for slow moving inventory of stores & spares and consumables for Rs 24.62 crores has been made during the year 2016-17 based on internal assessment of the company. Further, its realization value has been considered @ 10% without any basis. (g) MBIL has made provision for impairment of assets has been made for Rs 61 crores in the books of accounts as on 31.03.2017. VI J. Provision for impairment of assets has been made for Rs 61 .00 crores in the books of accounts as on 31.03.2017 based on the report of SPA Capital Advisers Ltd which has been calculated on the basis of distressed sale value of assets as on August, 2015, considering fixed valuation report or assets by M/s Dun & Bradstreet Information Services Pvt. Ltd. 53. The above is disconcerting for a variety of reasons. Firstly, the Sikdar Report contains an express di....
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....t dated 29.02.2024 in W.P.(C) 4181/2023, is justified, it is apparent that the said judgment, which deals with allegations regarding siphoning of funds / alleged 'PUFE' transactions, was in the nature of 'relevant material' that ought to have been considered prior to issuance of the impugned order. It is theoretically possible, that the Central Government may have arrived at the same "opinion" even after consideration of the said judgment. However, the wholesale disregard/ non-consideration of a binding judicial pronouncement which makes copious observations as regards the very same Audit Report/s on which the impugned order is founded, cannot be countenanced. Judicial treatment accorded to the very same Forensic Audit Report/s on which the present impugned order is founded [even in the context of an action to declare the ex-directors as 'wilful defaulters'] is a relevant circumstance that ought to have been taken into consideration. It has been admitted in paragraph 165 of the Counter Affidavit of the Respondent, that neither the BOB Judgment nor the SBI Judgment, which also consider the effects of the concerned forensic audit report, were placed or conside....
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....rified by us as these investments were made before our period of review". 150. Thus, the Forensic Audit Report did not verify the source of funds which were invested in the subsidiaries. The respondent-Bank, could not have issued show cause notice to the petitioner for wilful default, without verifying the source of funds that were invested. Unless the funds that were invested were found to be borrowed funds, the respondent-Bank did not invested were found to be borrowed have jurisdiction to invoke the funds, the respondent-Bank did not Master Circular. The very genesis of "diversion" or "siphoning of" funds is dependent on the funds being borrowed funds. The reliance placed by the respondent-Bank on the Forensic Audit Report is clearly misconceived. The Forensic Audit Report does not record any conclusion regarding diversion or siphoning of funds qua the petitioner. The reliance placed by the respondent-Bank on the Forensic Audit Report to issue show cause notice of wilful default to the petitioner is clearly misplaced." 60. The judgment rendered by the Division Bench in LPA No. 294/2024 serves to corroborate the point that the findings rendered qua the forensic audit reports ....
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....ssession of all facts and details, it cannot return even a tentative opinion on whether there has been diversion or siphoning of funds. An FAR which is issued without being possessed of all the necessary factual material and statistical details is really worthy of little credibility, and cannot constitute the basis for proceeding against the borrower for declaring him a wilful defaulter either under the Master, Circular, or, we may venture to add, in any cognate proceedings either." 63. In view of the above observations, this Court is unable to countenance a situation where SFIO investigation under Section 212(1)(c) of the Companies Act, 2013 is initiated without even taking note of / factoring in the judicial pronouncement/s referred to hereinabove. 64. It also transpires that the counter affidavit filed on behalf of the respondent/claimant at para 3(i) to (iii) and 4(i) to (ix), 7 (a) to (i) and 15 has referred to additional reasons/grounds to justify the impugned order. 65. The petitioner is right in contending that the validity of this impugned order has to be assessed on the basis of what is stated therein and not on the basis of the additional reasons/circumstances sought ....
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.... non as for the purpose of formation of opinion under Section 212(1)(c) of the Act, 2013. As held by the Supreme Court in Barium Chemicals Limited vs. Company Law Board (supra), Rohtas Industries vs. SD Aggarwal (supra) and Rampur Distillery vs. Company Law Board, (supra), and reiterated by the Bombay High Court in Parmeshwar Das Agarwal (supra), the existence of the relevant circumstances has to be "demonstrable". Exercise of power under Section 212(1)(c) in a casual or perfunctory manner, seriously undermines the statutory provision itself and the safeguards implicit thereunder. The use of boilerplate language and/or extrapolations from third party documents, without consideration of all the "relevant circumstances", reflects a disregard for procedural propriety. It can hardly be emphasized enough that the power under Section 212(1)(c) must be exercised with circumspection and deliberation. In the present case, the impugned order under Section 212(1)(c) appears to have been issued in a rather casual manner, unmindful of the statutory pre-requisites therefor. 72. In the circumstances, the impugned order dated 05.09.2024 (and all consequential proceedings pursuant thereto), is her....
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....scope of audit mentioned in the report. The Report is furnished solely for the information of the RP and should not be used. circulated, quoted or otherwise referred to for any other purpose nor included or referred to in whole or in part in any document. We have carried out our assignment on test check basis on the documents submitted by management of the company. Our observations on Statutory Regulations do not purport to be an opinion, expert or otherwise. It merely represent. 4. That the Central Government had earlier ordered an Inquiry u/s 206(4) of the Companies Act, 2013 on 08.08.2018, based on the complaint of Shri Balraj Singh, President, Bhartiya Mazdoor Sangh dated 20.07.2018 and the Inquirt report has recommended the conducting of inspection of books of accounts and papers of the companies under section 206(5) of the Companies Act, 2013. 5. "16. That it is prayed that the petition may be dismissed as there is sufficient material on record for the Central Government to form an opinion and assign this case to SFIO. The fact that the judgment dated 29.02.2024 in WP(C) 4181/2023 and 20.03.2023 in WP(C) 2336/2023 were not taken into account before passing the order of inve....