Sebi softens stand on shell companies, says action based on ministry's list

Hints at revoking ban if exchanges give favourable report

Two days after suspending trading in 331 listed shell companies, the capital markets regulator, Securities and Exchange Board of India (Sebi), ordered stock exchanges to verify their credentials and fundamentals. In a letter to the exchanges on Wednesday, the markets regulator hinted if a company’s business model appeared satisfactory, the trading ban could be revoked.

The move comes after Sebi faced widespread criticism from various quarters for classifying these entities as shell companies on Monday. The market value of at least 10 companies on the list is over Rs 200 crore each. Also 161 of these companies were active in trading, with over 2.7 million public shareholders. Sebi had directed exchanges to impose stringent trading curbs on these companies by putting them in the Stage VI of the Graded Surveillance Measure (GSM). The companies were identified by the Ministry of Corporate Affairs (MCA), with the help of the Serious Fraud Investigation Office (SFIO) and the income-tax (I-T) department.

Three of these companies — Prakash Industries, Parsvnath Developers, and J Kumar Infraprojects — also moved the Securities Appellate Tribunal (SAT) against Sebi’s order. They sought a stay on trading restrictions and claimed Sebi’s directives were “arbitrary and unreasonable”. During the hearing on Wednesday, the SAT asked the regulator to explain under which law or regulation the action had been taken. “Natural justice should have been followed before action was taken,” the SAT panel observed. 

Sebi argued it had not concluded the companies are shell firms and the action had been taken based on a MCA list.

Legal expert said Sebi should be careful while passing such orders, as it could have a wide impact. “Decisions that can have wide-ranging implications need to be carefully taken. There may be many companies on this list that are indeed shell companies, but that cannot justify mistreating even one well-functioning company,” said Somasekhar Sundaresan, an independent lawyer.

Further, the appellate asked Sebi counsel when the MCA communication was received and whether it was brought to the notice of Sebi chairman or any member. The tribunal also asked what steps Sebi took after the MCA provided it with information. Meanwhile, the Sebi counsel questioned maintainability of the appeal stating that it was an administrative order and hence, not admissible. Sebi argued it had not concluded the companies are shell firms and the action had been taken based on a MCA list.

Conflict course

Companies to SAT

• Three companies seek stay on Sebi order
• They claim classification as “shell company” is arbitrary

SAT to Sebi

• Under what regulation was the action taken?
• Natural justice should have been followed

Sebi to exchanges

• Verify credentials and fundamentals of these companies
• Seek auditor certificate from companies 
• Check elaborate business model and tax returns

SAT asked Sebi should give a hearing opportunity to all the three companies either before Thursday morning, failing which the tribunal will resume hearing in the matter.

The appellate also asked Sebi to respond on certain queries such as whether the officer who passed the impugned order had received the communication from the MCA. It has also asked the regulator to file a reply on the due diligence done of the information received from the ministry.

The regulator’s surveillance department has directed stock exchanges to seek the auditor’s certificate from the companies, with a long list of disclosures. These include annual income-tax returns for three years and description of pending tax disputes, if any. Companies also need to provide status reports on compliance with the Companies Act and Sebi’s listing regulations. 

Besides, the companies will also have to give a framework of their business models — whether or not it was doing well. They would have to disclose loan defaults or if they had been declared as a non-performing asset (NPA). They would also need to furnish bank statements for the past one year, both for active or dormant accounts, as well as the annual returns of the past three years.

Bourses have been asked to verify the auditor’s certificates and the documents provided by the companies. Sebi in the letter, accessed by Business Standard, said the exchanges will have to give a hearing to the companies concerned and submit a report.

The regulator also asked exchanges to submit the status report of the brokers and their respective clients (investors). Sebi has instructed exchanges to ask brokers to check the credentials of their clients (investors). “In case the credentials of the client is not found satisfactory then their unique client code (UCC) should be temporarily disabled by the exchanges,” it said in the letter. On the other hand, the government also indicated that some of the companies might soon resume trading. “We expect about a dozen companies might be allowed to resume trading within a week,” said a finance ministry official. Action against the identified companies was taken after a spike in trade was found during demonetisation, he added. “Many have been found to be violating the income-tax rules. These companies, however, will be given a chance to prove their position,” said the official.