Delhi High Court: A petition was filed by two petitioners Times Internet Limited (petitioner 1) a subsidiary of Bennet Coleman & Co. Ltd (petitioner 2) challenging an order passed by Enforcement Directorate under Rule 10 of the rejecting request for a No Objection Certificate (NOC), a critical requirement to remit funds to these WOS in the form of overseas direct investments. Sanjeev Narula, J., quashed the impugned rejection letters and held that both the petitioners are free to approach the Authorised Dealer for remittance of investment abroad.
The petitioners in this case, two prominent Indian entities classified as “persons resident in India” under the , approached the court seeking redress for what they allege to be arbitrary action by the Enforcement Directorate (ED). Over the years, the petitioners have maintained a history of compliant and transparent overseas investments. Petitioner 1, through its wholly owned subsidiary (WOS) ‘Times Internet Inc.’ in the USA, invested approximately USD 30.9 million between 2006 and 2015 under the RBI’s Automatic Route for Overseas Direct Investment (ODI), adhering to FEMA regulations and fulfilling all reporting requirements. Similarly, BCCL set up its own WOS, ‘BCCL Worldwide Inc.’, in 2015 to pioneer the Brand Capital International model in the USA. Both companies assert that they have meticulously complied with their statutory obligations under FEMA and have been consistent in filing the requisite returns.
The current dispute arose when the petitioners sought No Objection Certificates (NOCs) under the newly liberalized , to facilitate additional investments in their WOSs. Despite their compliance history and the stated intent of the 2022 Rules to streamline and promote overseas investment, the ED rejected their applications in October and November 2023 without providing detailed reasoning. Adding to their grievance, the ED issued fresh summons for further investigation, after a two-year gap since the last summons. Aggrieved by these actions, the petitioners have filed the present petition.
The Court undertook a detailed analysis of the evolving regulatory framework governing overseas investments under the (FEMA), particularly considering the changes introduced by the . The FEMA OI Rules, 2022, introduced significant liberalization and simplification of the regulatory framework, replacing the earlier regime with a system designed to facilitate bona fide business activities abroad. One of the significant changes in the new FEMA OI Rules, 2022, is the requirement of obtaining an NOC in certain cases, before any financial commitment or undertaking disinvestment can be allowed.
The Court observed that the impugned communications do not disclose any substantive reason for rejecting the NOC. A rejection of such import, devoid of any rationale or justification, is arbitrary and falls afoul of the principles of natural justice. While the Respondent’s denial of the NOC is ostensibly rooted in public interest, i.e., to prevent valuable foreign exchange from being taken out of the country, yet this rationale fails to withstand judicial scrutiny. The issuance of summons under Section 37(1) of FEMA, 1999, over three years ago, without any subsequent initiation of formal proceedings or adjudication against the petitioners raises serious questions. Thus, the ongoing investigation, devoid of any tangible progress or launch of proceedings, cannot ipso facto justify the denial of an NOC, particularly when the Petitioners have sought to comply with regulatory requirements in good faith.
The Court further noted that prima facie the Petitioners’ emphasis on adherence to the valuation norms prescribed under FEMA regulations holds merit. They are correct in pointing out that the rules mandate that valuations must be conducted by Category-I merchant bankers registered with SEBI or overseas merchant bankers accredited by the host country’s regulatory authority. Petitioner 1 has complied with this requirement by engaging a SEBI registered merchant banker. Therefore, if the Respondents indeed possess cogent material indicating overvaluation or misuse of foreign exchange, they ought to have initiated proceedings under FEMA, 1999, to substantiate these claims. Presently, it is only an allegation of ED that there has been overvaluation. Therefore, at this stage, the valuation conducted by an expert body which is relied upon by the Petitioner has a probative force and is only being doubted by the ED on the grounds of suspicion.
The Court concluded that the refusal to grant an NOC must be predicated on clear, cogent, and rational reasons. Mere issuance of summons, absent any formal finding of contravention under Section of , or violations of Sections and of the , does not meet this threshold. Furthermore, the Court also finds merit in the contention of the Petitioner that the penalty for violations of the provisions of are fiscal in nature and under Section of , the fiscal penalty would be three times the amount so invested or INR 2 Lakhs in cases where the invested amount is not quantified. On the other hand, the denial of NOC by ED in the present case, has completely restricted the Petitioners from remitting money abroad to its subsidiaries. The prolonged investigation without any conclusion, coupled with a lack of action under FEMA, is insufficient to justify the denial of the Petitioners’ right to make further investments. The Petitioners have a legitimate expectation of conducting their business unhindered, particularly in the absence of definitive findings against them. In sum, mere issuance of summons under Section of , without any finding of contravention under Section of , and the alleged non-compliance with the provisions of Section and of the , cannot be a valid ground for denial of the NOC.
Thus, the Court held that the Respondents have not demonstrated the contravention of FEMA, 1999 with clear basis, in order to deny the NOC as here must be a nexus between the alleged contravention and the proposing investment which has not been established in the present case. Since the Petitioners have, in good faith, complied with regulatory requirements, it is unreasonable to subject them to indefinite uncertainty.
[Times Internet Limited v ED, W.P.(C) 15242/2023, decided on 17-12-2024]
Judgment by: Justice Sanjeev Narula
Advocates who appeared in this case :
Mr. R.K. Handoo, Mr. Yoginder Handoo and Mr. Ashwin Kataria, Advocates for petitioner
Mr. S.V. Raju, ASG with Mr. Anurag Ahluwalia, CGSC with Mr. Samrat Goswami, Mr. Abhigyan Siddhant and Mr. Gaurav Sarkar, Advocates for respondents
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