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TMI Blog2023 (4) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... es for UOI JUDGMENT PURUSHAINDRA KUMAR KAURAV, J. (ORAL) 1. The present petition has been filed under Article 226 of the Constitution of India, primarily seeking for a direction to the respondents to grant ex-post facto approval to the Foreign Direct Investment (hereinafter referred to as 'FDI') received by the petitioner from two foreign companies, namely, Aventia Global Limited and Onix Assets Limited (hereinafter referred to as the foreign companies ). 2. The brief facts of the case are that the petitioner is a company engaged in international trade and distribution of chemicals/petrochemicals/polymers etc. On 26.12.2009, the petitioner allotted 4,00,000 warrants to the two foreign companies for a considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner, came to be partly set aside by the Commissioner of Income Tax (Appeals) [hereinafter referred to as CIT(A) ] in terms of order dated 22.02.2016. The third application of the petitioner also came to be rejected on 21.06.2016 on the ground that against the said order passed by the CIT(A), the respondent No.2-Department for Promotion of Industry and Internal Trade (hereinafter referred to as DPIIT ) has preferred an appeal before the Income Tax Appellate Tribunal (hereinafter referred to as the ITAT ). 6. The petitioner, thereafter, approached the Bombay High Court in W.P (C) 562/2016. The said writ petition was withdrawn with the liberty to approach the appropriate High Court. The petitioner thereafter filed W.P. (C) 1464 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter, filed a fourth application dated 15.12.2017 received by DPIIT on 19.12.2017 in accordance with the new Standard Operating Procedure (hereinafter referred to as 'SOP') dated 29.06.2017. The fourth application came to be rejected vide order dated 22.05.2018 with an observation that after due consideration, the request made by the petitioner is not accepted by the relevant Department/Ministries. 10. Since the order of rejection of the fourth application dated 22.05.2018 did not contain any reason, therefore, the petitioner had to approach this court in W.P.(C) 9069/2018, which came to be disposed of on 29.08.2018 recording an undertaking of DPIIT that the reasons for rejection will be communicated to the petitioner. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppearing for the petitioner seeks to withdraw the present petition. 4. The petition is dismissed as withdrawn In compliance of the above, with regard to the FDI Proposal filed vide No.4672 dated 20.12.2017, it is hereby communicated that the proposal was rejected by the Competent Authority considering that there is a sub-judice matter pending with the Income Tax Appellate Tribunal which has direct bearing on the proposal . 12. A perusal of the communication dated 17.09.2018 would reveal that the proposal of the petitioner has been rejected only on the ground that the matter is sub-judice with the ITAT, which according to DPIIT has a direct bearing on the proposal. 13. It be also noted that in terms of the order dated 10.01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supp (3) SCC 73, learned senior counsel for the petitioner submits that it is well settled in law that mere filing of an appeal does not operate as a stay or suspension of the order appealed against. He, therefore, submits that the rights of the petitioner are being greatly prejudiced and the petitioner has been made to suffer irreparable loss on account of the action of the respondent No.2-DPIIT. 15. Learned counsel appearing on behalf of respondent No.1-UOI, while taking this court through the amended counter affidavit, submits that there is no objection with respect to the consideration of the case of the petitioner afresh. However, during the pendency of the instant petition, there has been a change in the mechanism to deal with s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment. 16. Having heard learned counsel appearing on behalf of the parties, this court finds that the case of the petitioner requires to be considered by the Competent Authority on merits. 17. In view of the aforesaid, this court finds it appropriate to direct the petitioner to file an application in terms of the consolidated FDI policy dated 15.10.2022, as amended from time to time through online portal, NSWS in terms of the guidelines and requirements under the FDI policy and SOP for processing the FDI proposal. 18. Needless to state that if such an application is filed by the petitioner within two weeks from today, the respondent authority is under an obligation to deal with the same, on its own merit. It is to be reiterated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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