Tribunal, Regulatory Bodies and Commissions Monthly Roundup | Top 13 Legal Stories covering Google-CCI case, FTS under India Netherlands DTAA, RCap Resolution, RBI Penalty on Amazon, SEBI Penalty on Arshad Warsi, and more from March 2023

Monthly Roundup


Payment received by assessee from foreign company for business support services cannot be treated as FTS under Art. 12 (5) of India Netherlands DTAA: ITAT reiterates

In appeals against the respective orders of the Assessing Officer (‘AO’) passed under Section 143(3) read with Section 144-C of the Income tax Act, 1961 (‘IT Act’) pursuant to the directions of the Dispute Resolution Panel (‘DRP’), the two-member bench of Shamim Yahya (Accountant Member) and Anubhav Sharma (Judicial Member) held that the payment received by the assessee from foreign company on account of business support services cannot be treated as Fees for Technical Services (‘FTS’) under Article 12(5) of India Netherlands Double Taxation Avoidance Agreements.

[Inteva Products Netherlands BV v ACIT, 2023 SCC OnLine ITAT 165]


RPC fee paid by Formula One not liable to be disallowed; Second proviso to S. 40(a)(i) be given retrospective effect: ITAT

In three appeals filed by the assessee against separate orders of the Commissioner of Income Tax (‘CIT’) for assessment year 2012-13 and for assessment years 2013-14 and 2014-15 respectively, the two-member bench of N. K. Billaiya (Accountant Member) and Yogesh Kumar U.S. (Judicial Member) quashed the disallowance/addition made by the Assessing Officer which was sustained by the CIT(A) and held that the second proviso Clause (i) of Section 40(a) and second proviso to clause (ia) of Section 40(a) were inserted to remove an anomaly and were therefore curative and declaratory in nature. Hence, they had to be given retrospective effect.

[Jaiprakash Associates Ltd v DCIT, decided on 13-03-2023]



[District Police Constable Driver Recruitment] MAT| Clause prohibiting application for one and the same post in more than one unit in the advertisement notice not violative of Article 14, 16 and 19

In a matter arising out of the recruitment process carried out for the recruitment of ‘District Police Constable Drivers’ on the establishments of the District Superintendent of Police/Commissioner of Police, full bench of Justice P R Bora (Vice Chairman), Justice M G Giratkar (Vice Chairman) and Justice Medha Gadgil (Member) held that Clause 11.10 in the advertisement which states the filing restrictions, is no way contrary to any of the provision in the Maharashtra Police Act, 1951 or the Recruitment Rules of 2019.

[Amit Harishchandra Daphal v. The Superintendant of Police, Original Application No. 144/ of 2022]



[Google-CCI Case] | NCLAT upholds Rs 1,337 crore penalty on Google for abuse of dominant position in Android Mobile Device Ecosystem

In a competition appeal filed by Google LLC and Google India Private Limited, challenged the order passed by the Competition Commission of India (‘CCI’), Justice Ashok Bhushan, Chairperson* and Dr. Alok Srivastava, Technical Member while exercising its competition appeal jurisdiction, upheld the INR 1337.76 crore fine imposed by CCI on Google for abuse of its dominant position in the Android Mobile Device Ecosystem but set aside certain key directions.

[Google LLC v. Competition Commission of India, decided on 29-3-2023]


Once Resolution Plan is approved and submitted to Adjudicating Authority, it cannot be sent back for re-consideration: NCLAT

While deciding an appeal related to ending back the Resolution Plan for re-consideration after the approval of CoC, a Division bench comprising of Ashok Bhushan*, J., and Mr. Barun Mitra (Technical Member) held that the approved Plan is not violative of S. 30 (2) and there no breach of procedure or manifest error in the approval of the Resolution Plan, therefore the Resolution Plan cannot be send back for re-consideration.

[Express Resorts and Hotels Ltd. v. Amit Jain, 2023 SCC OnLine NCLAT 97]


Do Third-party/shareholders have locus to challenge initiation of CIRP against Corporate Debtor? NCLAT answers

While upholding the order of the Adjudicating Authority rejecting the right of a shareholder to seek intervention in a S. 7 application filed by a financial creditor, M. Venugopal, J. and Naresh Salecha* (Technical Member), held that third-party or shareholders do not have any locus to challenge initiation of Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor.

[Nirej Vadakkedathu Paul v. Sunstar Hotels and Estates (P) Ltd., 2023 SCC OnLine NCLAT 102]


[Reliance Capital (RCap) Resolution] CoC has power to negotiate and call for higher bid; NCLAT allows another round of bidding

While deciding an appeal challenging the Adjudicating Authority’s order restricting further auction of the Corporate Debtor, Ashok Bhushan*, J. and Barun Mitra (Technical Member) allowed the petition seeking another round of auction for the Corporate Debtor undergoing insolvency process as CoC has the power to negotiate and call for a higher bid.

[Vistra ITCL (India) Ltd. v. Torrent Investments (P) Ltd., decided on 02-03-2023]


NCLAT upholds NCLT’s rejection to dislodge resolution plan against POSCO India Processing Center Private Limited

In a company appeal challenging the National Company Law Tribunal (‘NCLT’), Ahmedabad Bench’s order upholding the claim of successful resolution applicant alleging personal guarantee in favour of creditor for attracting Section 29-A(h) of the Insolvency and Bankruptcy Code, 2016 (‘IBC Code’), the Bench of judicial member Rakesh Kumar Jain, J. and technical member Naresh Salecha dismissed the same finding no scope for review or res-judicata.

[POSCO India Pune Processing Center Pvt. Ltd. v. Dhaval Jitendra Kumar Mistry, 2023 SCC OnLine NCLAT 107]



Advance paid for purchase of shares of Corporate Debtor does not fall under definition of Financial Debt: NCLT

Mr. Prabhat Kumar* (Technical Member) and Mr. Kishore Vemulapalli (Judicial Member) held that the amount of advance paid for purchase of shares of the Corporate Debtor does not fall under the definition of Financial Debt which is defined under S. 5(8) IBC.

[Jushya Realty (P) Ltd. v. Ninety Properties (P) Ltd., 2023 SCC OnLine NCLT 18]


[Relief for Homebuyers] NCLT approves resolution plan of Suraksha Realty in Jaypee Infratech case

In a Company Petition filed by the Interim Resolution Professional (‘IRP’) for approval of Resolution Plan in Corporate Debtor – Jaypee Infratech Limited’s case, the Bench presided by Ramalingam Sudhakar, J. with L.N. Gupta as Technical Member approved the said Resolution Plan and directed the authorities to address the grievances of the homebuyers.

[IDBI Bank Ltd. v. Jaypee Infratech Ltd., decided on 7-03-2023]



NCDRC allows Rs 20 lakhs compensation to patient suffering 80% disability; reiterates doctor’s legal obligations to patients

While disposing two first appeals against the order passed by State Consumer Disputes Redressal Commission (‘SCDRC’), Jaipur holding the hospital and doctor liable for medical negligence, the NCDRC Presiding member, Dr. S.M. Kantikar partly allowed both the appeals. The Commission viewed the compensation of Rs 20 lakhs as just and reasonable, and limited the liability of the doctor to the extent of performing LD Flap surgery.

[Dhanvantari Hospital & Research Centre v. Santosh Kumar Sharma, 2023 SCC OnLine NCDRC 78]


Builder not giving possession on time; NCDRC slams with compensation for delay in delivery of possession

In a batch of Consumer Complaints for delay in delivery of possession and difference of promises in brochure and agreement with the buyers, the Commission presided by Ram Surat Ram Maurya and Dr. Inderjit Singh, Member* directed the builder to compensate complainants for delay in possession, failure in providing promised facilities and litigation costs.

[Anil Rawat v. Clarion Properties Ltd., Consumer Case No. 1512 of 2017]



RBI imposes penalty of Rs. 3.06 crore on Amazon Pay (India) Private Limited for non-compliance of KYC requirements

The Reserve Bank of India (‘RBI’) imposed a penalty of Rs. 3.06 crore on Amazon Pay (India) Private Limited for non-compliance of KYC requirements. RBI concluded that the aforesaid charge of non-compliance with RBI directions was substantiated and warranted imposition of monetary penalty.



SEBI imposes penalty on Arshad Warsi, his wife & 29 other entities; Bars from Securities Market for practicing fraudulent & unfair trade practices

The Securities and Exchange Board of India (‘SEBI’) restrained the promoters of Sadhna Enterprises including Arshad Warsi along with other 29 entities from buying, selling or dealing in the securities market for violating the provisions of the SEBI Act, 1992 and SEBI (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2022 (‘PFUTP Regulations’) for luring the investors by uploading misleading videos on YouTube.

[Sadhna Broadcast Limited, In Re, WTM/AN/ISD/ISD-SEC-1/24333/2022-23, dated 2-3-2023]


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