Thursday, December 31, 2015

Differentiated Banks – Leading the March Towards Financial Inclusion

[The following guest post is contributed by Neelasha Nemani, who is a 4th year B.A. LL.B. (Hons.) student from National Law University Odisha, Cuttack.]

India’s impetus on financial inclusion is now stronger than ever. Recently, the Reserve Bank of India (RBI) granted an in principle approval to 11 entities to set up Payments Banks[1] and 10 entities to set up Small Finance Banks[2] as an expression of its concern over the immediate requirement of rapid financial inclusion to boost the economic situation in the country. In an attempt to resolve the long-pending debate over the most ideal vehicle for financial inclusion between having a few large banks with several branches and having several small banks, the RBI has, after much consideration and upon the recommendation of the Nachiket Mor Committeee,[3] come to the conclusion that the setting up of several small, localized, well-capitalized, technology-driven banks in unbanked and under-banked regions of the country is indispensible for achieving the goal of financial inclusion. And better yet, the setting up of Differentiated Banks[4] or Niche Banks that either offer specialized services or are geographically limited in their operations would best cater to the needs of a specified class of customers.

Differentiated Banks indeed have much to offer. Since Small Finance Banks[5] are regionally limited in scope, they will be in a better position to cater to customers’ local needs and will easily be able to assess their needs and accordingly tailor-make the services provided by them. A bank with a localized base of operation tends to be hassle-free in the services provided by it and would thereby encourage the lower-income groups and small businessmen to participate in the formal financial system. Payments Banks,[6] on the other hand, being limited in scope of activity, provide specialized services that put resources to optimum use and prevent their potential wastage. Considering the current rate of market expansion, such specialization is more than just desirable and is, in fact, a very natural response to an increase in competition amongst banks.

The granting of differentiated licenses after the failure of Local Area Banks (LABs)[7] is indeed a bold step on part of the government, nonetheless a calculated one. Firstly, the government has learnt that a high capitalization base is required for the banks to be able to endure the potential risks associated with geographically distant areas and more importantly the kind of sectors these banks are being set up to cater to, which have a high incidence of credit default and has therefore, as a corrective measure, increased the minimum paid-up capital requirement to Rs. 100 crores from the erstwhile Rs. 5 crores of LABs. Secondly, the entities that it has granted license to are those that have access to state of the art technology and resources to build the necessary infrastructure to penetrate into the remotest of areas through the click of a button on a mobile phone, where it would not be possible to set up physical banks or branches. However, some potential challenges still persist which threaten the success of the RBI’s financial inclusion drive.

First is the banks’ ability to remain economically viable in a restrictive environment. For instance, Payments Banks are not allowed to create credit by granting loans and are also required to invest 75% of their money in government securities/treasury bills maturable in one year. Their source of income would be the fees charged by them for providing remittance services, insurance and mutual fund schemes and their profitability will depend on the most cost-effective technology employed by them. Given that these banks are privately owned, the targets on profitability are likely to be strict and short-term focused.  Therefore, while it may not be difficult for these entities to enter unbanked areas, it might become difficult for them to sustain.

Second is the issue of consumers’ willingness to avail of financial services.  Even as far as the savings customer is concerned, their coming forward and actually utilizing these services will largely depend on their financial awareness and level of trust.  It has been shown that lack of trust in the formal financial system still binds large segments of consumers to exploitative moneylenders.  Therefore, the financial inclusion drive must contain an element of financial literacy as well – which the licensed entities may not be in a position to invest in.

Third, there is the issue of making services sufficiently inexpensive to induce consumers to utilize them. In recent news, the State Bank of India is gearing up to set up a low-cost model to provide payments services in similar sectors,[8] thereby increasing the competition in the market.

While only the passage of time will determine the success of the financial inclusion drive, it is certainly worth noting that the RBI has made a push in the right direction.  With the progress of time, the approach will not need to be re-worked but only dynamically refined.

- Neelasha Nemani




[1] RBI Press Release no. 2015-2016/437 dated August 19, 2015 which discusses the in-principle approval of license to 11 Payments Banks. Link: https://www.rbi.org.in/Scripts/BS_PressReleaseDisplay.aspx?prid=34754.
Also see: RBI Press Release no. 2014-2015/1089 dated November 27, 2014 which discusses the guidelines prescribed by the RBI for grant of license to Payments Banks. Link: https://rbi.org.in/scripts/BS_PressReleaseDisplay.aspx?prid=32615
[2] RBI Press Release no. 2015-2016/693 dated September 16, 2015 which discusses the in principle approval of license to 10 Small Finance Banks. Link: https://rbi.org.in/scripts/BS_PressReleaseDisplay.aspx?prid=35010
Also see: RBI Press Release no. 2014-2015/1090 dated November 27, 2014 which discusses the guidelines issued by the RBI for grant of license to Small Finance Banks. Link: https://rbi.org.in/scripts/BS_PressReleaseDisplay.aspx?prid=32614
[3] Report by Committee on Comprehensive Financial Services for Small Businesses and Low Income Households headed by Shri Nachiket Mor dated January, 2014. Link: https://rbidocs.rbi.org.in/rdocs/PublicationReport/Pdfs/CFS070114RFL.pdf
[4] Differentiated Banks are banks that provide niche banking facilities and include Local Area Banks, Payments Banks, Small Finance Banks etc. See: Budget Speech 2014-15 dated July 10, 2014, Ministry of Finance, Government of India. Link: http://finmin.nic.in/fmspeech/FM_BudgetSpeech_july2014.pdf.
[5] For further reading on Small Finance Banks, see: Vivina Vishwanathan, What to Expect from Small Finance Banks, Live Mint, December 29, 2015. Link: http://www.livemint.com/Money/PuQ6tbCp3IiYHWxd1MH5CP/What-to-expect-from-small-finance-banks.html.
[6] For further reading on Payments Banks, see: Puja Mehra, All You Need to Know about Payment Banks, The Hindu, August 20, 2015. Link: http://www.thehindu.com/business/all-you-need-to-know-about-payment-banks/article7561353.ece
[7] For a holistic understanding of the functioning of LABs, see: Report of the Review Group on The Working of The Local Area Bank Scheme dated September 2002, RBI. Link: https://www.rbi.org.in/scripts/PublicationReportDetails.aspx?ID=294
For further reading, see: M. S. Sriram, Small Banks: Lessons Learnt from Local Area Banks, Live Mint,  July 25, 2014. Link: http://www.livemint.com/Opinion/v4higxQgKD3c5kDIQ03sMK/Small-banks-lessons-from-local-area-banks.html
[8] PTI, SBI developing Low Cost Model to Counter Payments Banks, The Economic Times, August 21, 2015. Link: http://articles.economictimes.indiatimes.com/2015-08-21/news/65706389_1_payments-banks-arundhati-bhattacharya-sbi

Saturday, December 19, 2015

Premium on Buyback: a Deductible Expenditure?

In an earlier post on this blog, Mr. Jayant Thakur had considered certain decisions of the Income Tax Appellate Tribunal (notably, Chemosyn v. ACIT) where the ITAT had held that “… premium paid by the company on buyback of shares of a warring shareholder group is deductible as business expenditure in the hands of the company…” It was pointed out in that post that the Tribunal had followed its own earlier decision in the case of Echjay Industries. It was further argued in that post:

“… when the Company buys back shares, it is generally returning the value of the shares in the form of face value as originally paid, accumulated reserves and value of assets like goodwill, etc. that is not recognized in the books. Such return can hardly be a business expenditure… The accounting treatment under accounting principles and also under Section 77A (and related provisions) of the Companies Act, 1956, clearly supports this. The face value of shares bought back is reduced from the paid up capital and the surplus (premium) is debited to reserves such as securities premium account or other reserves (other than revaluation reserve). These provisions generally do not permit debiting the amount paid to profit and loss account for the year… There is, however, merit in these decisions for a partial amount, to the extent the facts support them. There may be cases where shareholders may create such a nuisance value that it may seriously impact the working of the company (as what has happened in the above cited cases). The Company may end up buying back shares at a price higher than their fair value, just to get such hurdles out of the way so the Company can focus on its business. The excess may be deductible because it represents purely the amount paid on account of business expediency. But the fair value paid should, it is submitted, still not be deductible…
An appeal against the ITAT decision in Echjay was dismissed by the Bombay High Court. That appeal was not dismissed on the merits, though. The appeal was dismissed on account of the failure of the Revenue to remove the Registry’s ‘office objections’ – essentially, a dismissal for default. In two recent decisions, though, the Bombay High Court confirmed the decisions of the ITAT on the merits. The first was the appeal in the case of Chemosyn itself (CITv. Chemosyn, (2015) 371 ITR 427 (Bom]. The Court held:

An appeal from the order of the Tribunal in Echjay Industries Ltd. (supra) was also dismissed by this Court… We find that the impugned order records a finding of fact that the amounts which were paid by the respondent assessee for the purpose of purchase of its shares, to its shareholder for subsequent cancellation was an expenditure incurred only to enable smooth running of the business. Thus, the expenditure was incurred for carrying on its business smoothly and therefore, was a deductible expenditure. Thus, the impugned order of the Tribunal is essentially a finding of fact…

In CIT v. Bramha Bazar Hotels, (2015) 235 Taxman 195 (Bom), the question was reconsidered. The Department pointed out that the appeal in Echjay was not dismissed on merits. The Department also relied on the decision of the Supreme Court in Brooke Bond v. CIT, 225 ITR 798 (SC), to argue that expenditures in connection with share capital must necessarily be treated as capital expenditures. The Court rejected these arguments, followed its own order in Chemosyn, and held:

… expenditure so incurred by the Respondent-Assessee for purchase of shares and subsequent cancellation thereof was only for the purpose of enabling smooth running of its business... the aforesaid finding is essentially a finding of fact and the Revenue was not able to show that the finding is in any manner perverse and/or arbitrary…  The decision of the Apex Court in the case of Brooke Bond  relied upon by the Revenue deals with the situation where the assessee therein issued shares to the general public with a view to increase its share capital. The expenditure incurred by Brooke Bond to increase its capital, was claimed to be Revenue in nature and, therefore, deductable. The Apex Court upheld the order of the High Court and held that the amount spent to increase the share capital is not revenue but capital expenditure. Thus, it is to be disallowed. The aforesaid decision was rendered in a completely different fact situation from the one here. In this case, there is no increase of share capital but the Company has been forced to pay off one of the warring group of share holders by buying its shares for its own well-being and carrying on business. It was the expenditure which was forced upon the Respondent-Assessee so as to carry on its business and not an expenditure of choice. Therefore, the Supreme Court in Brooke Bond India Ltd. (supra) is inapplicable to the present facts…

In Bramha Bazar, the question of law sought to be raised by the Revenue before the High Court was in respect of the premium paid vis-a-vis the face value of the shares. The ITAT had recorded that "the extra amount paid over and above the face value... was claimed as a revenue business expenditure...In Chemosyn, the question was in relation to ‘amount spent in acquiring the shareholding’: presumably the entire amount, and not just the excess over market value. Therefore, the position appears to be that the entire amount representing the excess over the face value will be available as deduction if there is evidence that the payment was made for smooth running of the business. 

[Disclaimer: I appeared for the taxpayer to oppose the appeal before the High Court in Bramha Bazar. My views cannot be regarded as independent. The issue is, however, of some significance; and I would welcome any comments on the correctness or otherwise of the stand taken.]


Thursday, December 17, 2015

Presumption in Insider Trading

Given the evidentiary problems in insider trading cases, SEBI has resorted to the use of presumptions in its enforcement of the SEBI (Prohibition of Insider Trading) Regulations, 1992. Some of the issues that arose due to this approach have been discussed in the past. These issues have resurfaced more recently in a short order of the Securities Appellate Tribunal (SAT) in the case of Reliance Petroinvestments Limited (RPL).

This case involved trading by RPL in the shares of Indian Petrochemicals Corporation Limited (IPCL). An adjudicating officer of SEBI came to the conclusion that RPL was a deemed connected person (and therefore an insider) with reference to IPCL and that it was “reasonably expected to have access to Unpublished Price Sensitive Information (UPSI)”. On this count, the adjudicating officer imposed a penalty.

On appeal, SAT quashed and set aside the adjudicating officer’s order and restored it for adjudicating in the light of SAT’s observations. The primary issue that arose related to the presumption on insider trading under the 1992 Regulations. The presumption of insider trading has been the subject matter of various orders of SEBI and SAT, including in Rajiv B. Gandhi v. SEBI, wherein it was held that “if an insider trades or deals in securities of a listed company, it would be presumed that he traded on the basis of the unpublished price sensitive information in his possession unless he establishes to the contrary”. In other words, this is a rebuttable presumption.

However, in the present case, SAT found that RPL had placed on record various documents and made submissions to rebut the presumption. It also found that the adjudicating officer proceeded merely on the basis of the presumption without having regard to the evidence to the contrary. Hence, the order was set aside.

Although from a legal standpoint this is a simple and straightforward evidentiary issue, it highlights the difficulties in insider trading actions. In the recent reforms pertaining to SEBI’s regulations, some of these issues have been taken on board. While all of these aspects were left open to interpretation in the 1992 Regulations, the SEBI (Prohibition of Insider Trading) Regulations, 2015 explicitly deal with the issue in the form of note to Regulation 4(1) as follows:

NOTE: When a person who has traded in securities has been in possession of unpublished price sensitive information, his trades would be presumed to have been motivated by the knowledge and awareness of such information in his possession. The reasons for which he trades or the purposes to which he applies the proceeds of the transactions are not intended to be relevant for determining whether a person has violated the regulation. He traded when in possession of unpublished price sensitive information is what would need to be demonstrated at the outset to bring a charge. Once this is established, it would be open to the insider to prove his innocence by demonstrating the circumstances mentioned in the proviso, failing which he would have violated the prohibition.

Although this brings in greater clarity, and arguably imposes a greater burden on insiders to discharge in rebutting the presumption, it remains to be seen whether SEBI’s efforts in insider trading actions would be better supported by such a presumption.


Competition Law: Analysis of the COMPAT Order in Surendra Prasad v. CCI

[The following guest post is contributed by Sarthak Raizada and Kartikey Kulshreshtha, who are 4th year students at Dr. Ram Manohar Lohiya National Law University, Lucknow.]

Introduction

The Competition Act, 2002 (the “Act”), while still in the early stages of its development in India, has witnessed immense litigation. The Competition Commission of India (“CCI”) has adjudicated and delivered several landmark verdicts, laid down normative standards, effectively discharged its mandate to promote competition. However, the lack of coherence and subjective reasoning in some of its decisions has plagued and paralyzed the standards along which an enterprise may be required to align his conduct. Such practices have sparked debates related to the interpretation of the Act among competition economists and lawyers. Moreover, the CCI as well the Competition Appellate Tribunal (“COMPAT”) have passed orders in disregard of certain fundamental principles under law. It is in this light that this post seeks to comment upon a ruling of COMPAT in Surendra Prasad v. Competition Commission of India delivered in September which deals with important aspects as to the interpretation of the Act and duties of the CCI as a quasi-judicial body.  

Background to the Dispute

A notice for tender was issued by the Maharashtra State Electricity Board (“MAHAGENCO”) for coal liasoning, quality and quantity supervision. In pursuance of the tender notice, M/s B.S.N. Joshi & Sons Ltd. (“BSN”) and three other players submitted their tenders. The tender of the BSN was challenged before the Bombay High Court by one of the tenderers alleging that it failed to fulfill certain essential conditions. The writ petition was allowed by the High Court quashing the award of the contract to BSN. The said judgment of the High Court was challenged before the Supreme Court. Therein, the Court directed MAHAGENCO to reconsider the matter afresh by providing another opportunity to BSN. In a striking observation, the Court further said that the three players apart from BSN had engaged in cartel like behavior. Despite this order of the Supreme Court directing MAHAGENCO to consider the matter afresh, MAHAGENCO did not consider its application for tender. Thereafter, BSN filed a contempt petition before the Supreme Court alleging willful disobedience to the order of the Court. While disposing off the contempt petition, the Court made critical remarks against MAHAGENCO for encouraging cartel like behavior.

Consequently, a contract of one year was granted to BSN as directed by the Supreme Court. However, the contract was terminated prematurely on grounds of unsatisfactory performance.

Factual Matrix of the Case

The informant filed information under section 19(1) of the Act alleging violation of section 3 and 4 by the opposite parties. It was averred that the contractors had formed a cartel for bid-rigging and have geographically divided the area of contracts constituting a violation of section 3. It was further alleged that MAHAGENCO had facilitated the formation of cartel between the contractors. In support of the allegation, it relied upon the observation of the Supreme Court in the contempt petition filed against MAHAGENCO. The informant also alleged that the conduct of MAHAGENCO and other contractors results in denial of market access to new players under section 4 of the Act. After a perusal of the arguments advanced, the CCI rejected these allegations observing that the CCI does not have jurisdiction to inquire into allegations of favoritism and corruption.

The order of the CCI was appealed before COMPAT. One of the contentions raised before COMPAT dealt with the locus standi of the informant to file the information. This contention of the respondents was repelled by COMPAT on a plain reading of the statute. It proceeded to set aside the order of the CCI ordering the Director General (“DG”) to make an investigation into the matter and thereafter submit a report to the Commission. While recording this observation, COMPAT relied upon the remarks of Supreme Court in the Civil Appeal and the Contempt Petition pertaining to cartel-like conduct, discussed above. It further observed that the DG shall not procced on the premise that MAHAGENCO is a part of the cartel.

Issues For Consideration

The order of COMPAT raises several important issues as to the interpretation of the Competition Act. The first question that arises for consideration is the power of COMPAT to make a direction to the DG to make an investigation under section 26(1) of the Act. The second question that requires consideration is the locus of the informant and his bona-fides to file information before the Commission under section 19(1) of the Act. Third, the question of discharging MAHAGENCO also prompts the question of cartel facilitator liability in India, in view of the recent ruling of the CJEU in AC-Treuhand AG v. European Commission.[1] Lastly, this post also attempts to question the legality of the observation made by COMPAT to hold “that the Commission is judicially subordinate to the Supreme Court and is bound by the verdict of the highest court in the country”. It also analyzes the nature and character of the proceedings before the Supreme Court vis-à-vis the proceedings before the CCI. This is to establish that the observation does not operate as a rule of binding precedent on the CCI.

Analysis of the COMPAT Order

The order of COMPAT made a direction to the DG to investigate into the matter and submit a report to the CCI. Whilst it may be true that the statutory authority to pass a direction is vested in the CCI by virtue of section 26(1), to assume that no such power is available to COMPAT is to deprive it of necessary powers inherently vested in it. Critically analyzing the judgment, a few authors have argued that it is incumbent upon COMPAT to make an order of remand to the CCI while reversing an order made under section 26(2) of the Act. Such an argument is strictly positivistic and is therefore, liable to be rejected.

Section 53B (3) of the Act provides:

On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the direction, decision or order appealed against.

It is a fundamental principle of law that where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary for their execution. A remand by an appellate court is usually made when the record before it is in such shape that the appellate court cannot in justice determine what final judgment should be rendered and the power to do so cannot but be an essential requisite of the very jurisdiction to entertain the appeal. It is an old maxim of the law that to whomsoever a jurisdiction is given, those things also are supposed to be granted without which the jurisdiction cannot be exercised: cui jurisdictio data est, ea quo que concessa cssee videntur, sine quibus jurisdictio explicari non potest. Therefore, on a plain reading of section 53B(3), it may well be argued that the expression ‘as it thinks fit’ confers a jurisdiction of widest amplitude on COMPAT. Furthermore, the power to set aside the direction, order or decision appealed against may include the power to remand the matter, as an order of remand will necessarily set aside the order. Both these portions necessarily imply that COMPAT has the power to set aside the decision which is under appeal before it and remand the matter to the CCI for fresh consideration. Hence, the power to remand is an inherent power vested in COMPAT and is not a power which can be disputed. Therefore, the question which requires consideration is not whether such a power is available to COMPAT, but whether an order of remand was necessary and proper in the present dispute if the essential requisites to entertain the appeal were not fulfilled.

This takes us back to the provisions of section 26 of the Act. Under that provision, the CCI has the power to issue directions or pass orders as required by various sub-sections. Section 53A provides for an appeal to orders made under section 26. Subsection (1) to section 26 requires formation of a prima facie opinion by the CCI to direct the DG to make an investigation into the matter. The formation of a prima facie opinion does not require the CCI to record detailed reasons. However, it is incumbent upon the CCI to express in no uncertain terms that it is of the view that prima facie case exists calling for an investigation to be made into the matter by DG.[2] While forming such an opinion, the CCI is required to consider and pass a reference to the information furnished to the CCI. Such opinion should be formed on the basis of the records, including the information furnished and reference made to the CCI under the various provisions of the Act.[3] Therefore, a natural query that arises in the dispute under discussion is whether there was sufficient information available before the CCI to take a view that prima facie case exists. As stated in the minority order passed under section 26(2) by Justice (Retd.) S. N. Dhingra, the conduct of the contractors and MAHAGENCO after the termination of contract with BSN is reflective of anti-competitive conduct. To this effect, he elaborately analyzed and discussed their conduct for the relevant period under consideration, which in authors’ view, constitute sufficient evidence to form a prima facie opinion. Therefore, the majority order passed by the CCI deeming such allegations as those of favoritism and corruption, lying outside the purview of its jurisdiction, is unsustainable and unwarranted under law.

The second question which formed the subject-matter of COMPAT’s ruling was the locus standi of the informant to file the information.  In Appeal before COMPAT, the respondent challenged the locus of the appellant-informant on the ground that he is espousing the cause of BSN since he had been representing him in several other litigation. While rightly rejecting this contention on a plain reading of the statute, COMPAT observed that there is nothing in the language of section 19(1)(a) to suggest that any person filing such information is required to possess any qualification or prescribe any condition which is required to be fulfilled. This is evidently clear from a plain reading of section 19(1)(a) which provides for the following two conditions:

(a) The receipt of such information in such manner and accompanied by such fee as may be determined by regulations; and

(b) Such information should be filed by any person, consumer or their association or trade association.

While the procedure to file such information is prescribed by the CCI (General) Regulations, 2009, they do not provide for any fee or any method for filing such information. Moreover, the manner of filing information is procedural in nature and therefore cannot subdue the substance of the information.[4] Therefore, there is no bar to filing any information under the Act, provided the conditions mentioned above are satisfied.

With regard to condition (b), COMPAT observed that the informant is also a consumer within the meaning of the Act. In any case, it is submitted that the informant would have fulfilled the condition as he is a person within the meaning of the Act.

The third question analyzed in this post is based on a rather novel interpretation of section 3 liability. This interpretation of the statute is founded on the principle laid down by the Court of Justice in AC-Treuhand AG v. European Commission. It observed that article 81 of the European Community (EC) Treaty does not only concern undertakings which are active on the relevant or related markets affected by the restriction of competition. It affirmed the ruling of the General Court that passive participation in a cartel maybe sufficient to constitute a liability under article 81(1). Relying on the objective of article 81 to prevent distortion of competition in the common market, it held AC-Treuhand liable on the ground that the very purpose of providing services to the members of the cartel was in pursuance of attaining anti-competitive objectives.

This interpretation adopted by the Court of Justice of the European Union is relevant in view of the strikingly interesting observation of COMPAT as follows:

 However, it is made clear that while making investigation, the Director General shall not proceed on the premise that Respondent No. 2 was a part of the cartel.

This observation of COMPAT triggers the debate that whether cartel facilitators be held for an infringement under section 3(3) of the Act. While allegations of facilitating the cartel against MAHAGENCO were raised before the CCI as well as COMPAT, the two forums seem to have either rejected the allegation or absolved MAHAGENCO from such liability without stating any reasons whatsoever. Hence, the impact and legal implications of such an approach are yet to be seen while the Indian competition authorities strive and aim to bring Indian law in consonance with the law propounded by EU institutions.

Lastly, the post seeks to critically examine the statement recorded by COMPAT pertaining to the binding value of the observation made by the Supreme Court in the Civil Appeal and Contempt Petition. Hence, it is necessary to discuss the law laid down with respect to the doctrine of precedents under article 141 of the Constitution.

It is a well-established principle that the “law declared” under article 141 is a binding precedent. A finding on facts or any question of law which was not required to be raised in a particular case cannot be treated as a binding precedent. In other words, particular words or sentences made or findings of fact recorded by the court lacking any independent analysis or examination of its own cannot fall within the scope of the expression “law declared”.

In the present dispute, the observations made by the Supreme Court in the Civil Appeal and the Contempt Petition pertaining to the act of cartelization by the contractors cannot be regarded as a binding. Primarily, the observation is merely based on the statements recorded by senior functionaries of MAHAGENCO. Furthermore, the Court did not provide any independent analysis of cartel-like conduct on its own to substantiate the observation. This is further evidenced by the failure of the Supreme Court to record any reasons for the same. Hence, the order of COMPAT rebuking the CCI for breach of judicial discipline in disregarding the findings of the Supreme Court is unwarranted and unsustainable under law. 

It is also pertinent to note that the question regarding the formation of cartel between the contractors did not require any determination in the proceedings before the Supreme Court. The proceedings therein only dealt with the aspect of legitimate expectation of BSN to be considered for empanelment of coal liasoning while the proceedings before the CCI dealt with the aspect of anti-competitive practices adopted by the contractors and MAHAGENCO. The relief sought before the Supreme Court involved reconsideration for public procurement through a competitive bidding process whereas the adjudicatory process before the CCI involves imposition of penalties and directions to end the infringing conduct/agreement.

Keeping in mind this fundamental distinction, we argue that the order of COMPAT has lost sight of the true scope and import of article 141 of the Constitution.

- Sarthak Raizada & Kartikey Kulshreshtha



[1] Case C194/14 P AC Treuhand AG v Commission [27] not yet reported.
[2] Nissan Motors India Private Limited v Competition Commission of India Writ Petition No 26488/2013 & 31808-09/2013.
[3] Ibid.
[4] Hyundai Motor India Limited v Competition Commission of India WP No 31808-09/2012.