2015 (8) TMI 725 - AT - Companies Law

Violation of acquisition of shares/voting rights By adjudication order of SEBI, penalty was imposed upon appellants for violating Regulation 10 of Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 read with Regulation 35 of SAST Regulations, 2011 Held that - Admittedly appellants acquired shares in excess of limit prescribed under Regulation 10 of SAST Regulations, 1997 and no steps were made to open offer in accordance with Regulation 10 Taking into consideration all mitigating factors, penalty imposed by adjudicating officer cannot be said to be unreasonable or excessive Appeal dismissed Decided against Appellant.

Summary

Issues:
Violation of Regulation 10 of SAST Regulations, 1997 - Imposition of penalty under Section 15H of SEBI Act, 1992.

Detailed Analysis:

Issue 1: Violation of Regulation 10 of SAST Regulations, 1997
The appellants, along with another individual, acquired shares of a company exceeding the prescribed limit without making a public announcement and open offer as required by Regulation 10 of SAST Regulations, 1997. SEBI imposed a penalty of Rs. 40 lac on the appellants under Section 15H of SEBI Act, 1992 for this violation. The appellants contested the penalty, arguing that it was too high and unreasonable. They claimed readiness to comply with the open offer, which was not considered in the impugned order. The appellants also highlighted that the total acquisition cost was lower than the penalty amount, and trading in the shares was suspended during a specific period. Additionally, they referred to recommendations to increase the threshold limit and settlement regulations specifying a lower penalty amount for such violations.

Issue 2: Imposition of Penalty
The penalty imposable under Section 15H for violating Regulation 10 of SAST Regulations, 1997 is Rs. 25 crore or three times the profits made from the failure, whichever is higher. The Adjudicating Officer imposed a penalty of Rs. 40 lac, considering mitigating factors. The Tribunal noted that the penalty amount was lower than the statutory penalty of Rs. 25 crore. The arguments presented by the appellants regarding the penalty amount were dismissed, emphasizing that the specific provisions of Section 15H mandated a higher penalty amount. The Tribunal rejected the appellants' reliance on a previous decision to reduce the penalty substantially, stating that each case must be considered on its merits. In this case, the appellants had not complied with the regulation despite representations to do so, and the imposed penalty was significantly lower than the statutory limit.

Conclusion:
The Tribunal found no merit in the contentions raised by the appellants and dismissed the appeal. The penalty of Rs. 40 lac imposed on the appellants was upheld, considering the statutory provisions and mitigating factors. The Tribunal emphasized that the penalty amount, although lower than the maximum imposable, was justified in the circumstances of the case.