16th November 2005
Members are
hereby informed that SEBI vide its letter Ref No. MIRSD/Fee Cell/53449/05,
dated November 08, 2005 has forwarded an order passed by the Hon’ble High Court
of Gujarat in SCA No. 13946 of 2004 and allied matters in Ramesh Chandra Bansal
Vs SEBI and Ors informing that while dismissing the aforesaid petitions filed
before the Hon’ble High Court and vacating the interim relief granted the
Hon’ble High Court of Ahmedabad has made, among others, the following observations. Accordingly, the Exchange has been directed
to bring the contents of the Order to the notice of all brokers of the
Exchange.
a) The scheme
floated by SEBI viz., SEBI (Interest Liability and Regularisation) Scheme, 2004
floated by SEBI is absolutely true, correct and legal and in consonance with
the Act, 1992;
b) The calculation
of registration fees, adopted by SEBI in absence of break-up turnover and in
absence of auditor’s report before the cut-off date is true, correct, legal,
and in consonance with the Act, 1992 and Regulation, 1992;
c) If any stock
broker wants to avail the benefit of concessional rate of registration fees,
for those exceptional transactions, the burden is upon such claimant i.e. upon
the petitioners. If they fail to prove the existence of such exceptional
transactions and if they fail to separate those turnovers from the gross
turnover, SEBI can calculate registration fees at 0.01% of gross annual
turnover, as per clause (b) of clause (1) of paragraph I of Schedule III to the
Regulations, 1992;
d) The cut-off date
is an integral part of the benefit under the Scheme. Cut-off date, in facts of
this case is not an arbitrary;
e) That the
conditions attached with the SEBI Scheme, 2004 are reasonable and can not be
labelled as capricious or whimsical;
f) The cut-off date
prescribed by SEBI for supply of bifurcated data of turnover is true and
correct and there will always be cut-off date in such type of scheme, which
gives concession, rebate, or remission or which is in the nature of settlement
Scheme or regularization Scheme;
g) Court can not be
more charitable than the law or the Scheme floated from time to time under the
law;
h) It is a composite
Scheme and, therefore, concession given and conditions imposed can not be
segregated;
i)
It is a matter of Government policy, that what to give as a concession,
for, what is to be achieved promptly, without keeping the open ended
policy;
j)
Normally in such policy matter, a Court of law will not interfere
unless the policy is shown to be contrary to law, inconsistent with the
provisions of the Constitution or otherwise arbitrary or unreasonable;
k) The Scheme is
optional. It is in consonance with the Act, 1992 and the Regulations, 1992.
The members are
requested to take note of the above and act accordingly.
Secretary