IBC (Amendment) Ordinance, 2020: Hanging Sword On Personal Guarantors To Corporate Debtors

Ashutosh Choudhary & Gaurav Baheti are students at the National Law University, Odisha.

The nationwide lockdown enforced all over India due to the outbreak of Covid-19 pandemic is turning out to be a curse for the Indian economy. The uncertainty and distress created for corporate persons in businesses and the financial market of the Indian economy have severely disrupted the financial operations at large scales which may lead corporate entities into liquidation.[i] The Indian government has come up with several reforms to rescue corporate persons from economic distress in the current Covid-19 times from being pushed into insolvency proceedings under the Insolvency and Bankruptcy Code, 2016 (“Code”) for such defaults owing to the current time which might lead them into liquidation.[ii]

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Rupee Linked Derivatives in IFSC: A New Beginning

By Shubham Dimri, Law Graduate, Gujarat National Law University, Gandhinagar

Introduction

The NSE IFSC and BSE’s INX have started offering rupee linked derivatives on their platforms after receiving the approval from the Reserve Bank of India(RBI) and the Securities and Exchange Board of India(SEBI) early this year. This expands the bouquet of financial products offered in IFSC along with allowing for hedging of currency rate risk to prospective participants. The process of developing IFSC into a place, where rupee derivatives are traded, received a boost after the Task Force on Offshore Rupee Markets recommended that to prevent exchange rate shocks, currency rupee derivatives are needed to be brought within the ambit of domestic regulators. This was necessitated by the fact that non-deliverable forwards contracts in Rupee traded in foreign exchanges had a higher value and volume turnover than domestic exchanges which impacted the domestic macro-economic scenario. Following this recommendation, RBI and SEBI have framed rules for the segment in GIFT IFSC to start the process of developing the currency derivative market.

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Defining Contours of Freezing Orders Issued U/S 132(9B) of the Income Tax Act

Aditya Singh Chauhan, National Law University, Jodhpur

 Introduction

There is an increase in the number of freezing orders, whereby the tax authorities recover the amount due directly from the bank account of the tax payer.[1] This is due to the overwhelming amount of tax defaults, and increase in the pressure on the tax department.[2] One such provision that allows the tax authorities to issue freezing orders – section 132(9B) of the Income-tax Act, 1961 (“Act”) – was introduced by the Finance Act, 2017 to ensure that the revenue’s stake over the assessee’s assets is not unfairly misappropriated.[3] Such orders, however, are intrusive and have severe consequences on the business and reputation of the tax payer. The situation becomes more indiscriminate when such orders are issued against the foreign assets of the companies that are resident in India.

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Virtual Shareholder Meetings: The Future of Shareholder Meetings Post Covid-19

Ashuthosh V., Law student, Institute of Law, Nirma University

Introduction

A Shareholder meeting is a meeting between the management of the company and the owners and shareholders of the company. During the meeting, decisions are made concerning the day-to-day operations of the company. The purpose is to ensure that the shareholders are provided with an opportunity to discuss and deliberate upon affairs concerning the company. In a pre-Covid-19 situation, shareholder meetings were conducted in a physical venue and in accordance with the procedures under Section 96 of the Companies Act, 2013 (hereinafter “the Act”). It must be held at least once in a financial year, but not more than 15 months from the date of the previous one.  

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Analyzing the Changing Standard of Proof with respect to Commercially Sensitive Information in Cartel Cases

Nayan Mittal, Law Graduate, Symbiosis Law School, Pune

Introduction

Recently, in the case of In Re: Cartelization in Industrial and Automotive Bearings (“Automotive Bearings Case”) the Competition Commission of India (“the Commission” or “CCI”) held that the discussion with respect to a commercially sensitive price related information amongst the competitors points out to cartelization under the Competition Act, 2002 (“Competition Act”). This decision marks a noted departure from the exiting approach established in Re: Cartelization in Flashlights Market in India(“Flashlights Case”) wherein it was held that discussion on commercially sensitive information is not anti-competitive even if it is meant to increase prices and the parties must actually act upon the information in order to constitute a violation. The present article analyses the changing standard of proof requirement with respect to commercially sensitive information in the Commission’s decisional practice.

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MANDATORY LISTING OF SHARES HAVING SUPERIOR VOTING RIGHTS: A STEP FORWARD?

Aastha Agarwalla, Law Student, Campus Law Centre, Faculty of Law, University of Delhi

Prefatory

The Ministry of Finance, through a notification dated 19th March 2020, (hereinafter, “Amendment”) introduced a significant development in the legal framework of Differential Voting Rights (DVR), especially in shares having Superior Voting Rights (SR), by amending the Securities Contracts (Regulation) Rules, 1957 (hereinafter, “SCRA Rules”).The Amendment provides that in case a company seeks to list its ordinary equity shares for offering to the public, then it shall be mandatorily required to list its shares having SR on the same recognized stock exchange.

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Defining Contours Of Freezing Orders Under Section 226(3) Of The Income Tax Act

Aditya Singh Chauhan, Law Student, National Law University, Jodhpur

Introduction

With heavy tax defaults pilling-up in the recent years, tax authorities have resorted to issuing freezing orders under certain special provisions to freeze bank accounts and directly recover the money. The Assessing Officer (“AO”) or Tax Recovery Officer (“RO”) can make use of section 226(3) of the Income Tax Act, 1961 (“Act”) for this purpose. The aforesaid provision pertains to “Garnishee proceedings”, and allows the tax authorities to attach or collect money directly from the account of the tax payer’s debtor.[1] The Supreme Court of India, while defining the scope of this section, observed “[it] would be applicable only when a money is due to the assesse from any person. Was the amount due to the assesse when the notice dated […] was issued is the question.[2] However, indiscriminate use of this section can severely impact the reputation and business of the assesse.[3]It has been said that “[t]his is a provision which has to be used sparingly but is now used at the first instance by the assessing officer even in cases where a stay application is pending with various appellate authorities.”[4] This article will explain the process of Garnishee Proceedings under the Act, discuss case laws in relation to freezing orders issued after serving notice under section 226(3) of the Act, and conclude with the instances where freezing orders are illegal or invalid.

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Arbitrability of Antitrust Disputes: A case against the orthodox approach of the Indian Courts

Ojasvi Sharma, final year law student, Nirma University

Introduction

Arbitrability of disputes has always been a big fuss amongst the scholars. No law or act in India prescribes the subject matter of disputes which could be resolved through arbitration. Albeit, § 2(3) of the Arbitration & Conciliation Act, 1996 [“A & C Act”] clarifies that Part-I shall not affect the operation of any other laws in the country and certain disputes may not be submitted for resolution through arbitration. The issue of arbitrability of disputes relating to Competition law is contestable. The dubitable proposition is ‘whether a competition law dispute arising out of a contractual agreement between two parties could be submitted to an arbitral tribunal’. In other words, whether a dispute resolution mechanism primarily focused to address private parties’ concerns and is very much confidential could resolve an issue arising out of Competition law, which is of ‘Public Nature’ or includes ‘Public Interest’.

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Forward Markets in India and the Saga of Electricity

Rahul Jajoo, Advocate, Supreme Court of India

Introduction

Forward markets pertaining to commodities in India have been recognized as a way to deal in derivative markets [1] since independence. It was however only in 1952 that the government of India decided to regulate the regime of forward markets and hence, the Forward Contracts Regulation Act, 1952 (“FCRA”) was enacted. The object and purpose of the FCRA was “An Act to provide for the regulation of certain matters relating to forward contracts, the prohibition of options in goods and for matters connected therewith.”

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Streamlining The “Rights Issue” Process: Temporary Relaxations Amid The Pandemic

Divyansh Nayar, 4th year, National Law University, Odisha

Introduction

The industrial undertakings are in dire need of funds for various purposes during the period of this economic collapse at the heels of COVID- 19 Pandemic. In order to attenuate the capital adequacy requirement, the Securities and Exchange Board of India (‘SEBI’) allowed relaxations in the rights issue process that seem to ease out the stringent requirements that debilitate the facility of raising funds by companies. Through a series of circulars, SEBI streamlined the process in order to cater to the need of the market and promote the influx of capital in the market. This article lays down the scheme of relaxations proffered and emphasizes on the capital requirement of the market

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