WTM/MPB/ISD/ 06 /2018

BEFORE THE SECURITIES AND EXCHANGE BOARD OF

CORAM: MADHABI PURI BUCH, WHOLE TIME MEMBER

ORDER

Under Sections 11, 11(4), 11A and 11B of the Securities and Exchange Board of India Act, 1992

In the matter of

M/s Pincon Spirit Limited (PAN: AAHCS8354B):

______

1. Securities and Exchange Board of India (hereinafter referred to as “SEBI”), in the interest of investors, vide its letter dated August 7, 2017 took the pre-emptive interim measures under section 11(1) of SEBI Act, 1992, in respect of certain listed companies identified as “shell companies” by the Ministry of Corporate Affairs (hereinafter referred to as “MCA”) including M/s Pincon Spirit Limited (hereinafter referred to as “PSL” / “Company”). SEBI placed trading restrictions, on the promoters/directors so that they do not exit the company at the cost of innocent shareholders. In view of the said objective, SEBI vide the said letter dated August 7, 2017 also placed the scrip of PSL in the trade to trade category with limitation on the frequency of trade and imposed a limitation on the buyer by way of 200% deposit on the trade value, so as to alert them trading in the scrip. The said measures were initiated by SEBI pending final determination after verification of credentials and fundamentals by the exchanges, including by way of audit and forensic audit if necessary. The measures also envisaged, on the final determination, delisting of the company from the stock exchange, if warranted. By virtue of these measure, trading in scrip was not suspended but allowed under strict monitoring so that investors could take informed investment decisions, till SEBI and Exchanges complete their detailed examination of such companies.

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2. Aggrieved by the aforesaid letter dated August 7, 2017 issued by SEBI and Stock Exchnages, PSL filed an appeal No. 178 of 2017 before the Hon’ble Securities Appellate Tribunal (hereinafter referred to as “SAT”). The Hon’ble SAT vide order dated August 11, 2017 had granted stay to PSL and directed stock exchanges to reverse their decision in respect of PSL as expeditiously as possible and also directed SEBI to dispose of PSL representation in accordance with law. Hon’ble SAT also held that the said order shall not come in the way of SEBI as well as the stock exchanges to investigate the case of PSL and initiate proceedings if deemed fit.

3. Pursuant to the decision of Hon’ble SAT that the communication of SEBI dated August 7, 2017 is in the nature of quasi-judicial order, in the interest of natural justice, an opportunity of personal hearing was granted to PSL on September 13, 2017. The authorized representative of PSL had appeared for hearing and made submissions.

4. Thereafter, SEBI vide Interim Order dated December 19, 2017 (hereinafter referred to as “Interim Order”), had modified, subject to para 32(iv) of the interim order, the actions envisaged in SEBI’s letter dated August 07, 2017 and the consequential actions taken by Stock Exchanges, against M/s Pincon Spirit Limited as under:

i. The trading in securities of PSL shall be reverted to the status as it stood prior to issuance of letter dated August 7, 2017 by SEBI. ii. Exchange shall appoint an independent forensic auditor interalia to further verify: a. Misrepresentation including of financials and/or business by PSL, if any; b. Misuse of the books of accounts / funds including facilitation of accommodation entries or compromise of minority shareholder interest, if any. iii. The promoters and directors in PSL are permitted only to buy the securities of PSL. The shares held by the promoters and directors in PSL shall not be allowed to be transferred for sale, by depositories.

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iv. The other actions envisaged in SEBI’s letter dated August 07, 2017 in para 1 (d), as may be applicable, and the consequential action taken by Stock Exchanges shall continue to have effect against M/s Pincon Spirit Limited.

The ‘directors’ for the purpose of direction mentioned at para 32(iii) above shall mean and include: (a) the persons who are acting as directors on the date of this order, or (b) the persons who are acting as directors of this company as on August 07, 2017, who cease to be director, by way of disqualification by any other authority, or by way of resignation or by any other means, on or after August 07, 2017

5. The prima facie observations in the Interim Order were as under:

“……….

25. Based on the replies given by the company in response to SEBI’s queries, prima facie observations are as under:

(a) Vide affidavit dated September 15, 2017, Mr. Monoranjan Roy stated the followings: (i) He had acquired shares of Pincon Spirit Limited (erstwhile Sarang Viniyog Limited) from the following companies represented by their authorized representatives.

S.No. Name of Company Authorised Representatives

1 Gravel Marketing Pvt Ltd Laxmi Dhar Parida (Director)

2 Starlight Commosale Pvt Ltd Laxmi Dhar Parida (Director)

3 Shree Tribhuvan Tie UP Pvt Ltd Kamala Kanta Jena (Director)

4 Mangolia Vinimay Pvt Ltd Kamala Kanta Jena (Director)

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5 Bubna Properties Pvt Ltd Rajendra Bubna (Director)

6 Dream Commosale Pvt Ltd Kamala Kanta Jena (Director)

(ii) The share purchase agreement with the above companies have been negotiated through one Mr. Sanjeev Jhunjhunwala, S/o Mr. Sajjan Jhunjhunwala, residing at P-61, VIP Road, 7M CIT Scheme, Kankurgachi, – 700054. (iii)To the best of his knowledge and belief, prior to his taking over charge of the company, the management and control of the company was vested with Mr. Rajendra Bubna (then Director of Sarang Viniyog limited and director of Bubna Properties Limited). (iv) He has never spoken either with Mr. Raj Kumar Tharad or with Mr. Anil Kumar Khemka or any official/promoter/owner of Bhagyaraj Vyapaar Pvt Ltd.

(b) During the course of hearing and vide SEBI’s email dated September 13, 2017 PSL had advised to submit an affidavit from the person who was in control of the company prior to Mr. Monoranjan Roy. As per Mr. Monoranjan Roy’s affidavit, Mr. Rajendra Bubna was in control of the company prior to him. In this regard, the Company submitted that they have arranged for intimating Mr. Rajendra Bubna for submission of affidavit however the receipt of affidavit lies as per the decision of Mr. Rajendra Bubna. However, it is noted that till date, the company has not submitted the affidavit from the person whoever was in control of Company, prior to Mr. Monoranjan Roy.

(c) The Company in its 35th Annual Report for the F.Y. 2016-17 at Page No. 64 and 84 have mentioned that the Company entered into related party transactions with Bhattacharya Bottling Plant Private Limited (Associate) for Rs. 6.98 crores with respect to purchase/sundry manufacturing expenses. The Company also mentioned nil transactions with Paul Distributors Private Limited (Subsidiary).

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However on analysis of sample bank statements submitted by the Company to NSE for the period April 01, 2016 to March 31, 2017, it was observed that the Company received approximately Rs. 83.13 crores from Bhattacharya Bottling Private Limited (BBPL) during the period April 01, 2016 to March 31, 2017. Further, it was also observed that the Company had received approximately Rs. 20.57 crores and had transferred approximately Rs. 7.99 crores from/to Paul Distributors Private Limited (PDPL) (Subsidiary of PSL) during the period April 01, 2016 to March 31, 2017.

(d) In this regard, Company stated that amount of Rs 83.13 crores received by PSL in their bank a/c from BBPL represents the sales proceeds deposited by BBPL in respect of sale of PSL IMIL products which cannot be retained by BBPL since the same pertains to sale of PSL brand IMIL products. PSL has booked this amount transferred by BBPL into its a/c and the amount is a part of ‘Income/ Revenue from Operations’ as reflected in the annual balance sheet (ABS) of PSL as of 31.03.2017. The amount of Rs 6.98 crores is the real “Related Party Transactions” which was entered into by PSL with BBPL during the FY 2016-17 and the same has been reflected in the ABS of PSL as of 31.03.2017.

PSL also stated that it has been utilising the services of PDPL towards Distribution of PSL brand IMFL/ IMIL products throughout the state of . PDPL carries out distribution activity on behalf of PSL. The amount of Rs 20.57 crores received by PSL from PDPL represents the distribution sale proceeds of PSL brand IMFL & IMIL products in West Bengal during FY 2016-17. For facilitating lifting of other brand IMFL products for distribution, an amount of Rs 7.99 crores was transferred to PDPL during 2016-17. The details of transactions entered into between PSL & PDPL have been verified by PSL statutory auditors and since there is no manufacturing activity involved between PSL & PDPL, the statutory auditors of PSL have certified nil related party transactions between PSL & PDPL during 2016-17

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(e) Thus from para 25(c) & 25(d) above, it appears that the associate and/or subsidiary companies (i.e. BBPL & PDPL) of PSL collects the sale proceeds of various products sold by PSL to its customers and then transfers the said amount to the bank accounts of PSL. Therefore this amount does not fall under Related Party transactions as per the company’s submissions. However, it is noted that as per regulation 2(1)(zc) of LODR Regulations, Related Party Transactions means a transfer of resources, services or obligations between a listed entity and a related party, regardless of whether a price is charged and a "transaction” with a related party shall be construed to include a single transaction or a group of transactions in a contract. Thus, transfer of resources / services between a listed entity and a related party falls under the definition of related party transactions. From the submission of PSL, it is observed that BBPL has provided marketing services to PSL and PDPL provided distribution services to PSL and funds have been transferred from PDPL and BBPL to PSL. It is clear from the definition of related party transaction as mentioned in regulation 2(1)(zc) of LODR Regulations, the above said services would fall under the definition of related party transaction. Therefore, I do not find any merit in the submission of the Company that the amount of sale proceeds collected by PDPL and BBPL and transferred to PSL does not come under Related Party Transactions.

Thus, the transactions of amount of Rs 83.13 crores received by PSL from BBPL and transactions of amount of Rs 20.57 crores received by PSL from PDPL and amount of Rs. 7.99 crores transferred to PDPL are related party transactions. However, this was not disclosed in the Annual Reports. Thus, there is prima facie evidence of misrepresentation of financials and suspicion about the genuineness of these transactions and whether due process was followed by PSL in these transactions with related entities.

(f) The proceeds from the sale of products by PSL, first received by the associate companies and/or subsidiary companies and then transferred to PSL is not a sound prudent practice to be followed by the companies. The normal business practice to

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be followed by the companies is that - the company receives the amount of sale proceeds directly from the customer to whom the products have been sold/ invoices have been raised and not the third party or through routing of funds. This prima facie raises suspicion on genuineness of the amount received from associate/ subsidiary companies which has been included in the Revenue from operations as reported by the Company. Thus, there appears to be prima facie suspicion regarding misuse of books of accounts/funds by the company.

(g) SEBI vide email dated November 7, 2017, had advised PSL to provide - the details of total sales made to the Top 10 customers along with total amount received and balance receivables from these customers. However, PSL vide email dated November 10, 2017 only submitted the balance receivables from top 10 customers (product wise) as on March 31, 2017. As information submitted by PSL vide email dated November 10, 2017 was incomplete, therefore, SEBI vide email dated November 13, 2017 again advised PSL to submit the details of total sales made product wise along with amount received during the F.Y. 2016-17 for Top 10 customers in the specified tabular format as mentioned at para 19(a) above. In this regard, Company vide email dated November 21, 2017 stated that their office is sealed by Economic Offence Wing and documents/systems are not accessible to them and therefore, documents cannot be submitted immediately… …………..”

6. Vide said interim order, SEBI had advised PSL to file its reply/objections to the said interim order within 30 days from the date of receipt of the said interim order and also indicate in its reply whether it desires to avail an opportunity of personal hearing on a date and time to be fixed on a specific request made in that regard, if any. The said interim order also mentioned that if PSL had failed to file the reply or request for an opportunity of personal hearing within the said 30 days, the preliminary findings of the said interim order and ad-interim directions mentioned at para 24 of the said interim order shall stand confirmed automatically, without any further orders.

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7. Vide email dated December 20, 2017 the copy of interim order was forwarded to PSL. Vide letter dated December 20, 2017, the copy of interim order was also sent to PSL at ‘Chairman & Managing Director, Pincon Spirit Limited, 7, Wellesley House, 3rd Floor, Red Cross Palace, Kolkata, West Bengal – 700001” through Speed Post and the same was returned undelivered with remark ‘door closed’. Thereafter, vide letter dated January 10, 2018, the copy of interim order was sent to PSL at ‘Chairman & Managing Director, Pincon Spirit Limited, 103, K.H. Road, Shanthinagar, Samskruti Chnambers, 3rd Floor, Bengaluru – 560027” and the same was delivered. PSL vide letter dated January 19, 2018 received via email dated January 24, 2018 had acknowledged the receipt of interim order.

8. PSL vide letter dated January 19, 2018 received via email dated January 24, 2018 has stated as under:

“………

(a) We refer Communication No ISD/OW/1035/2018 dtd. 10.01.2018 from your good self- addressed to the Company's Corporate Office at Bangalore (received at the Company's Corporate Office at Bangalore on 16 .01.2018) , enclosing therewith ad interim ex-parte order dated 19.12.2017 passed by the Ld. Whole-Time Member u/s. 11, 11(4),11A and 11B of the SEBI Act, 1992.

(b) In this respect we would like to inform your good self that on account of sealing of the Company's Registered Office at Kolkata by Directorate of Economic Offences, Kolkata authorities on 08.11.2017 (a fact which was communicated to BSE, NSE & CSE and is reflected in the public domain of the stock exchanges), we do not have any access to any document/communication sent by different authorities and all such documents/communications are returning undelivered. Accordingly, the communication from your good office was also returned undelivered. Moreover, under the present exigency situation, there has been no contact/communication with Shri Arun Ganeriwala (SVP- Corporate Finance). In respect of the interim order, we would like to place our comments as under:

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(c) In terms of para 36 of the captioned interim order, our Company has been advised to file its reply / objection to the said interim order within thirty days of the receipt thereof. In this connection, owing to circumstances as stated above, due to non-receipt of the earlier SEBI communication we could not submit our replies. Subsequently, on receipt of the SEBI communication dated 10.01.2018 at our Bangalore Corporate Office on 16 .01.2018, we are attending the same on priority.

(d) We would like to submit that our Company's registered office has been sealed by Directorate of Economic Offences (Govt. of West Bengal) w.e.f 08.11.2017 due to an ongoing investigation related to the erstwhile CMD of the Company Shri Monoranjan Roy (who had subsequently been removed from the Board of the Company w.e.f, December 4th, 2017 & had submitted his resignation dated 04.12.2017). The said matter pertaining to Shri Monoranjan Roy is sub-judice as on date and the necessary details of resignation of Shri Monoranjan Roy from the Board of Directors is publicly available on the websites of MCA, SSE, NSE etc.

(e) In addition, all the Company's manufacturing units at West Bengal have also been sealed with stoppage of production since 09.11.2017. Further, all the bank accounts of the Company have been frozen with debit freeze on account of which the Company has not been in a position to pay salaries to employees and meet the dues of suppliers.

(f) The Company is trying to retrieve necessary information, records and documents in order to submit suitable replies to the interim-order, however as most of the crucial information and documents are maintained in the Company's registered office, the Company is not in a position to file its detailed reply at present owing to circumstances which are beyond the control of the Company.

(g) Since Pincon Spirit Limited is not an accused party, therefore, for seeking justice, we have approached the competent legal authority for opening of our Registered Office and factories in West Bengal.

(h) Under the present circumstances, it is humbly requested that a period of 15 working days from the date of opening of the Registered Office at Kolkata be kindly granted in order to enable us to file our detailed reply to the above interim order along with all supporting

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documents and thereafter, some convenient time for personal hearing may please be granted. Pending the submission of our reply and personal hearing, it is humbly requested that in the interest of justice, the preliminary findings and ad-interim directions of the Interim order be not confirmed automatically………”

9. From the reply of PSL, I note that the company has stated that the registered address of the company at Kolkata was sealed by the authorities of Directorate of Economic Offences (“DEO”), Kolkata on November 08, 2017. In addition, the Company also stated that since November 09, 2017 Company’s all manufacturing units at West Bengal were sealed and all bank accounts of the Company have also been frozen with debit freeze. In view of it, the Company had requested 15 working days from the date of opening of its registered office situated at Kolkata to file the detailed reply of the interim order and thereafter a date of hearing may be granted.

10. It is observed that the request of the Company was open ended and if acceded the current proceeding will be protracted indefinitely. Therefore, in the interest of natural justice and to conclude the proceedings in a timely manner, vide email dated February 14, 2018 the Company was advised to obtain the copies of required documents/information from DEO to submit its reply in the matter before SEBI by March 01, 2018. Vide email dated February 28, 2018, the Company stated that investigation at the end of DEO was under process and its registered office premises has not been opened and data/documents are not available with them. Therefore, the Company was not in a position to submit its detailed reply in the matter.

In order to protect the interest of investors, given the context of reluctance of the company to co-operate, the entire extent of violations can be unearthed only by means of forensic audit. Therefore, the forensic audit, which has been directed vide interim order dated December 19, 2017 needs to continue.

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11. From the reply/email of the Company, I note that the Company had not submitted any evidence which shows that it had approached DEO to obtain the copies of documents to submit its reply in the matter or that its request for obtaining copies of documents were denied by the DEO. However, I note that the Company had only stated that they were unable to submit its reply as the circumstance were beyond their control. Thus, I note that Company or its directors had not submitted any evidence of having put any effort to obtain the copies of documents from DEO to submit its reply in the matter. Further, I also note that till date the Company had not filed any reply on merit in the matter.

12. Therefore, at this stage, the limited issue for consideration before me is whether the directions in the Interim Order need to be continued, revoked or modified in any manner.

13. In this regard, I note that PSL has not submitted any response to the allegations/prima facie findings/ directions in the Interim Order. Further, no material has been brought to my notice contradicting the allegations/prima facie findings as described in the Interim Order or warranting any change in the directions passed in the Interim Order.

14. In view of the above, I find that the facts and circumstances of the case as brought out in the Interim Order have not changed, justifying the dis-continuation/modification/revocation of the directions passed in the Interim Order.

15. Thus, I, in exercise of the power conferred upon me under sections 11, 11(4), 11A and 11B read with section 19 of the Securities and Exchange Board of India Act, 1992 hereby confirm the directions contained in the Interim Order dated December 19, 2017 and forensic audit of PSL as directed vide Interim Order shall continue.

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16. Copy of this Order shall be forwarded to the recognized stock exchanges for information and necessary action.

17. A copy of this Order shall also be forwarded to the Ministry of Corporate Affairs, Serious Fraud Investigation Office and Directorate of Economic Offences, Kolkata for their information.

-Sd-

DATE: MAY 16, 2018 MADHABI PURI BUCH PLACE: MUMBAI WHOLE TIME MEMBER SECURITIES AND EXCHANGE BOARD OF INDIA

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