The New Delhi International Arbitration Centre (Amendment) Act, 2022.

jftLVªh lañ Mhñ ,yñ—(,u)04@0007@2003—22 REGISTERED NO. DL—(N)04/0007/2003—22 सी.जी.-डी.xएxलx.G-अI.D-2H40x8x2x022-238334 CG-DL-E-24082022-238334 xxxGIDExxx vlk/kkj.k EXTRAORDINARY Hkkx II — [k.M 2 PART II—Section 2 izkf/kdkj ls izdkf'kr PUBLISHED BY AUTHORITY lañ 19] ubZ fnYyh] 'kqØokj] vxLr 5] 2022@Jko.k 14] 1944 ¼'kd½ No. 19] NEW DELHI, FRIDAY, AUGUST 5, 2022/SRAVANA 14, 1944 (SAKA) bl Hkkx esa fHkUu i`"B la[;k nh tkrh gS ftlls fd ;g vyx ladyu ds :i esa j[kk tk ldsA Separate paging is given to this Part in order that it may be filed as a separate compilation. LOK SABHA ———— The following Bills were introduced in Lok Sabha on 5th August, 2022:— BILL NO. 186 OF 2022 A Bill to amend the New Delhi International Arbitration Centre Act, 2019. BE it enacted by Parliament in the Seventy-third Year of the Republic of India as follows:— 1. (1) This Act may be called the New Delhi International Arbitration Centre Short title and (Amendment) Act, 2022. commencement. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. 17 of 2019. 2. In the New Delhi International Arbitration Centre Act, 2019 (hereinafter referred to Amendment as the principal Act), in the long title, for the words “New Delhi International Arbitration of long title. Centre”, wherever they occur, the words “India International Arbitration Centre” shall be substituted.2 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— Amendment 3. In the principal Act, in the Preamble, for the words “New Delhi International of Preamble. Arbitration Centre” at both the places where they occur, the words “India International Arbitration Centre” shall be substituted. Amendment 4. In section 1 of the principal Act, in sub-section (1), for the words “New Delhi of section 1. International Arbitration Centre”, the words “India International Arbitration Centre” shall be substituted. Amendment 5. In section 2 of the principal Act, in sub-section (1), in clause (a), for the words of section 2. “New Delhi International Arbitration Centre”, the words “India International Arbitration Centre” shall be substituted. Amendment 6. In the principal Act, in Chapter II, in the chapter heading, for the words of chapter “NEW DELHI INTERNATIONAL ARBITRATION CENTRE”, the words “INDIA heading. INTERNATIONAL ARBITRATION CENTRE” shall be substituted. Amendment 7. In section 3 of the principal Act,— of section 3. (i) in the marginal heading, for the words “New Delhi International Arbitration Centre”, the words “India International Arbitration Centre” shall be substituted; (ii) in sub-section (1), for the words “New Delhi International Arbitration Centre”, the words “India International Arbitration Centre” shall be substituted. Amendment 8. In section 4 of the principal Act,— of section 4. (i) in the marginal heading, for the words “New Delhi International Arbitration Centre”, the words “India International Arbitration Centre” shall be substituted; (ii) in sub-section (1), for the words “New Delhi International Arbitration Centre” at both the places where they occur, the words “India International Arbitration Centre” shall be substituted. Amendment 9. In section 15 of the principal Act, for clause (a), the following clause shall be of section 15. substituted, namely:— “(a) to facilitate the conduct of arbitration and other forms of alternative dispute resolution mechanism, both international and domestic, in the manner as may be specified by the regulations;”. Amendment 10. In section 20 of the principal Act, in sub-section (5), in the proviso, for the word of section 20. "application" at both the places where they occur, the word "question" shall be substituted. Amendment 11. In section 23 of the principal Act, in sub-section (1), in clause (a), for the word of section 23. "Centre", the word "Secretariat" shall be substituted. Amendment 12. In section 25 of the principal Act, in sub-section (3), after the words “allowances of section 25. of Members”, the words “, Registrar, Counsel and other officers and employees of the Centre” shall be inserted. Amendment 13. In section 28 of the principal Act, in sub-section (1), for the words “which shall”, of section 28. the word “to” shall be substituted. Amendment 14. In section 31 of the principal Act, in sub-section (2), for clause (a), the following of section 31. clauses shall be substituted, namely:— “(a) the manner of the conduct of arbitration and other forms of alternative dispute resolution mechanism under clause (a) of section 15;SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 3 (aa) the time and place and the rules of procedure to be observed in regard to the transaction of business of the Committee at the meetings including the quorum under sub-section (3) of section 19;”. 15. In section 34 of the principal Act, in sub-section (1), in the proviso, for the words Amendment “two years”, the words “five years” shall be substituted. of section 34.4 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— STATEMENT OF OBJECTS AND REASONS The New Delhi International Arbitration Centre Act, 2019 provides for the establishment of the New Delhi International Arbitration Centre. Accordingly, the New Delhi International Arbitration Centre has been established for creating an independent and autonomous regime for institutionalised arbitration in the country. Sub-section (1) of section 4 of the Act declares the New Delhi International Arbitration Centre as an institution of national importance. 2. However, it has been felt that the Centre, being an institution of national importance, gives an impression of being city centric whereas it should be reflective of the aspirations to promote India as a hub of institutional arbitration and establish itself as a centre of international commercial arbitration. Therefore, it is considered imperative to change the name of the Centre from New Delhi International Arbitration Centre to India International Arbitration Centre so that a unique identity of the institute of national importance as conferred on it by law is evident and reflects its true objective. It is also proposed to make certain consequential amendments under the Act. 3. The Bill seeks to achieve the above objectives. NEW DELHI; KIREN RIJIJU. The 29th July, 2022. ————— MEMORANDUM REGARDING DELEGATED LEGISLATION Clause 9 of the Bill proposes to amend clause (a) of section 15 of the New Delhi International Arbitration Centre Act, 2019. 2. Clause (a) of section 15 provides that the proposed India International Arbitration Centre may specify by way of regulations, the manner of conduct of arbitration and other forms of alternative dispute resolution mechanism, both international and domestic. 3. The matters in respect of which regulations may be made under the aforesaid provisions are matters of procedure and administrative details and it is not practical to provide for them in the Bill itself. The delegation of legislative power is, therefore, of a normal character.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 5 BILL NO. 185 OF 2022 A Bill further to amend the Competition Act, 2002. BE it enacted by Parliament in the Seventy-third Year of the Republic of India as follows:— 1. (1) This Act may be called the Competition (Amendment) Act, 2022. Short title and commencement. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint: Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.6 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— Substitution 2. In the Competition Act, 2002 (hereinafter referred to as the principal Act),— 12 of 2003. of references to certain (a) for the words and figures "the Companies Act, 1956", wherever they occur, 1 of 1956. expressions the words and figures "the Companies Act, 2013" shall be substituted; 18 of 2013. by certain other (b) for the figures and word "1 of 1956", wherever they occur, the figures and expressions. word "18 of 2013" shall be substituted. Amendment 3. In section 2 of the principal Act,— of section 2. (a) after clause (e), the following clause shall be inserted, namely:— '(ea) "commitment" means the commitment referred to in section 48B;'; (b) in clause (h), for the portion beginning with the words "a person or a department of the Government" and ending with the words "defence and space", the following words shall be substituted, namely:— "a person or a department of the Government, including units, divisions, subsidiaries, who or which is, or has been, engaged in any economic activity, relating to the production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate, either directly or through one or more of its units or divisions or subsidiaries, but does not include any activity of the Government relatable to the sovereign functions of the Government including all activities carried on by the departments of the Central Government dealing with atomic energy, currency, defence and space;"; (c) after clause (k), the following clause shall be inserted, namely:— '(ka) "party" includes a consumer or an enterprise or a person or an information provider, or a consumer association or a trade association, or the Central Government or any State Government or any statutory authority, as the case may be, and shall include an enterprise or a person against whom any inquiry or proceeding is instituted; and any enterprise or person impleaded by the Commission to join the proceedings;'; (d) in clause (l), in sub-clause (vi), for the words and figures "section 617 of the Companies Act, 1956", the words, brackets and figures "clause (45) of section 2 of the 1 of 1956. Companies Act, 2013" shall be substituted; 18 of 2013. (e) for clause (p), the following clause shall be substituted, namely:— '(p) "public financial institution" means public financial institution as defined in clause (72) of section 2 of the Companies Act, 2013 and includes a 18 of 2013. State Financial Corporation, State Industrial Corporation or State Investment Corporation;'; (f) for clause (t), the following clause shall be substituted, namely:— '(t) "relevant product market" means a market comprising of all those products or services— (i) which are regarded as inter-changeable or substitutable by the consumer, by reason of characteristics of the products or services, their prices and intended use; or (ii) the production or supply of, which are regarded as inter- changeable or substitutable by the supplier, by reason of the ease of switching production between such products and services and marketing them in the short term without incurring significant additional costs or risks in response to small and permanent changes in relative prices;';SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 7 (g) after clause (u), the following clause shall be inserted, namely:— '(ua) "settlement" means the settlement referred to in section 48A;'. 4. In section 3 of the principal Act,— Amendment of section 3. (a) in sub-section (3), after the proviso, the following proviso shall be inserted, namely:— "Provided further that an enterprise or association of enterprises or a person or association of persons though not engaged in identical or similar trade shall also be presumed to be part of the agreement under this sub-section if it actively participates in the furtherance of such agreement."; (b) in sub-section (4),— (i) for the words "Any agreement amongst enterprises or persons", the words "Any other agreement amongst enterprises or persons including but not restricted to agreement amongst enterprises or persons" shall be substituted; (ii) in clause (b), for the word "supply", the word "dealing" shall be substituted; (iii) before the Explanation, the following proviso shall be inserted, namely:— "Provided that nothing contained in this sub-section shall apply to an agreement entered into between an enterprise and an end consumer."; (iv) in the Explanation,— (i) for clauses (a) and (b), the following clauses shall be substituted, namely:— '(a) "tie-in arrangement" includes any agreement requiring a purchaser of goods or services, as a condition of such purchase, to purchase some other distinct goods or services; (b) "exclusive dealing agreement" includes any agreement restricting in any manner the purchaser or the seller, as the case may be, in the course of his trade from acquiring or selling or otherwise dealing in any goods or services other than those of the seller or the purchaser or any other person, as the case may be;'; (ii) in clause (c), after the word "goods", at both the places where it occurs, the words "or services" shall be inserted; (iii) in clause (d), after the word "goods", at both the places where it occurs, the words "or services" shall be inserted; (iv) in clause (e), for the words "includes any agreement to sell goods on condition", the words "includes, in case of any agreement to sell goods or provide services, any direct or indirect restriction" shall be substituted; (c) in sub-section (5), in clause (i), after sub-clause (f), the following sub-clause shall be inserted, namely,— "(g) any other law for the time being in force relating to the protection of other intellectual property rights.". 5. In section 4 of the principal Act, in sub-section (2), in clause (a), in the Explanation, Amendment for the words "discriminatory condition or price", the words "condition or price" shall be of section 4. substituted.8 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— Amendment 6. In section 5 of the principal Act,— of section 5. (A) in clause (c), in sub-clause (ii), in item (B), for the word "India.", the words "India; or" shall be substituted; (B) after clause (c), the following clauses shall be inserted, namely:— "(d) value of any transaction, in connection with acquisition of any control, shares, voting rights or assets of an enterprise, merger or amalgamation exceeds rupees two thousand crore: Provided that the enterprise which is a party to the transaction has such substantial business operations in India as may be specified by regulations. (e) notwithstanding anything contained in clause (a) or clause (b) or clause (c), where either the value of assets or turnover of the enterprise being acquired, taken control of, merged or amalgamated in India is not more than such value as may be prescribed, such acquisition, control, merger or amalgamation, shall not constitute a combination under section 5."; (C) for the Explanation, the following Explanation shall be substituted, namely:— 'Explanation.—For the purposes of this section,— (a) "control" means the ability to exercise material influence, in any manner whatsoever, over the management or affairs or strategic commercial decisions by— (i) one or more enterprises, either jointly or singly, over another enterprise or group; or (ii) one or more groups, either jointly or singly, over another group or enterprise; (b) "group" means two or more enterprises where one enterprise is directly or indirectly, in a position to— (i) exercise twenty-six per cent. or such other higher percentage as may be prescribed, of the voting rights in the other enterprise; or (ii) appoint more than fifty per cent. of the members of the board of directors in the other enterprise; or (iii) control the management or affairs of the other enterprise; (c) "turnover" means the turnover certified by the statutory auditor on the basis of the last available audited accounts of the company in the financial year immediately preceding the financial year in which the notice is filed under sub-section (2) or sub-section (4) of section 6 and such turnover in India shall be determined by excluding intra-group sales, indirect taxes, trade discounts and all amounts generated through assets or business from customers outside India, as certified by the statutory auditor on the basis of the last available audited accounts of the company in the financial year immediately preceding the financial year in which the notice is filed under sub-section (2) or sub-section (4) of section 6; (d) "value of transaction" includes every valuable consideration, whether direct or indirect, or deferred for any acquisition, merger or amalgamation; (e) the value of assets shall be determined by taking the book value of the assets as shown, in the audited books of account of the enterprise, in the financial year immediately preceding the financial year in which the date of proposed combination falls and if such financial statement has not yet become due to be filed with the Registrar under the Companies Act, 2013 then as per the statutory auditor's report made on the basis of 18 of 2013. the last available audited accounts of the company in the financial yearSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 9 immediately preceding the financial year in which the notice is filed under sub-section (2) or sub-section (4) of section 6, as reduced by any depreciation, and the value of assets shall include the brand value, value of goodwill, or value of copyright, patent, permitted use, collective mark, registered proprietor, registered trade mark, registered user, homonymous geographical indication, geographical indications, design or layout-design or similar other commercial rights under the laws provided in sub-section (5) of section 3; (f) where a portion of an enterprise or division or business is being acquired, taken control of, merged or amalgamated with another enterprise, the value of assets or turnover or value of transaction as may be applicable, of the said portion or division or business or attributable to it, shall be the relevant assets or turnover or relevant value of transaction for the purpose of applicability of the thresholds under section 5.'. 7. In section 6 of the principal Act,— Amendment of section 6. (a) in sub-section (2),— (i) for the words "within thirty days of", the words "after any of the following, but before consummation of the combination" shall be substituted; (ii) in clause (a), after the word, brackets and letter "clause (c)", the words, brackets and letter "and clause (d)" shall be inserted; (iii) in clause (b), after the word, brackets and letter "clause (a)", the words, brackets and letter "and clause (d)" shall be inserted; (iv) the following Explanation shall be inserted, namely:— 'Explanation.—For the purposes of this sub-section, "other document" means any document, by whatever name called, conveying an agreement or decision to acquire control, shares, voting rights or assets or if the acquisition is without the consent of the enterprise being acquired, any document executed by the acquiring enterprise, by whatever name called, conveying a decision to acquire control, shares or voting rights or where a public announcement has been made in accordance with the provisions of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 made under the 15 of 1992. Securities and Exchange Board of India Act, 1992 for acquisition of shares, voting rights or control such public document.'; (b) in sub-section (2A),— (i) for the words "two hundred and ten days", the words "one hundred and fifty days" shall be substituted; (ii) the following proviso shall be inserted, namely:— "Provided that in case the party to the combination requests for additional time to furnish relevant information or remove defects to the notice filed under sub-section (2), the Commission may, by order, grant additional time which shall not be more than thirty days for furnishing relevant information or removing defects, as the case may be."; (c) in sub-section (3), for the words and figures "sections 29, 30 and 31", the words, figures and letter "sections 29, 29A, 30 and 31" shall be substituted; (d) for sub-sections (4) and (5) and the Explanation, the following shall be substituted, namely:— '(4) Notwithstanding anything contained in sub-sections (2A) and (3) and section 43A, if a combination fulfils such criteria as may be prescribed and is not10 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— otherwise exempted under this Act from the requirement to give notice to the Commission under sub-section (2), then notice for such combination may be given to the Commission in such form and on payment of such fee as may be specified by regulations, disclosing the details of the proposed combination and thereupon a separate notice under sub-section (2) shall not be required to be given for such combination. (5) Upon filing of a notice under sub-section (4) and acknowledgement thereof by the Commission, the proposed combination shall be deemed to have been approved by the Commission under sub-section (1) of section 31 and no other approval shall be required under sub-section (2) or sub-section (2A). (6) If within the period referred to in sub-section (1) of section 20, the Commission finds that the combination notified under sub-section (4) does not fulfil the requirements specified under that sub-section or the information or declarations provided are materially incorrect or incomplete, the approval under sub-section (5) shall be void ab initio and the Commission may pass such order as it may deem fit: Provided that no such order shall be passed unless the parties to the combination have been given an opportunity of being heard. (7) Notwithstanding anything contained in this section and section 43A, upon fulfilment of such criteria as may be prescribed, certain categories of combinations shall be exempted from the requirement to comply with sub-sections (2), (2A) and (4). (8) Notwithstanding anything contained in sub-sections (4), (5), (6) and (7)— (i) the rules and regulations made under this Act on the matters referred to in these sub-sections as they stood immediately before the commencement of the Competition (Amendment) Act, 2022 and in force at such commencement, shall continue to be in force, till such time as the rules or regulations, as the case may be, made under this Act; and (ii) any order passed or any fee imposed or combination consummated or resolution passed or direction given or instrument executed or issued or thing done under or in pursuance of any rules and regulations made under this Act shall, if in force at the commencement of the Competition (Amendment) Act, 2022, continue to be in force, and shall have effect as if such order passed or such fee imposed or such combination consummated or such resolution passed or such direction given or such instrument executed or issued or done under or in pursuance of this Act. (9) The provisions of this section shall not apply to share subscription or financing facility or any acquisition, by a public financial institution, foreign portfolio investor, bank or Category I alternative investment fund, pursuant to any covenant of a loan agreement or investment agreement. Explanation.—For the purposes of this section, the expression— (a) "Category I alternative investment fund" has the same meaning as assigned to it under the Securities and Exchange Board of India (Alternative Investment Funds) Regulations, 2012 made under the Securities and Exchange Board of India Act, 1992; 15 of 1992. (b) "foreign portfolio investor" has the same meaning as assigned to it under the Securities and Exchange Board of India (Foreign Portfolio Investors) Regulations, 2019 made under the Securities and Exchange Board of India Act,1992.'. 15 of 1992.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 11 8. After section 6 of the principal Act, the following section shall be inserted, namely:— Insertion of a new section 6A. '6A. Nothing contained in sub-section (2A) of section 6 and section 43A shall Open offers, prevent the implementation of an open offer or an acquisition of shares or securities etc. convertible into other securities from various sellers, through a series of transactions on a regulated stock exchange from coming into effect, if— (a) the notice of the acquisition is filed with the Commission within such time and in such manner as may be specified by regulations; and (b) the acquirer does not exercise any ownership or beneficial rights or interest in such shares or convertible securities including voting rights and receipt of dividends or any other distributions, except as may be specified by regulations, till the Commission approves such acquisition in accordance with the provisions of sub-section (2A) of section 6 of the Act. Explanation.—For the purposes of this section, "open offer" means an open offer made in accordance with the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulation, 2011 made under the Securities and 15 of 1992. Exchange Board of India Act,1992.'. 9. In section 8 of the principal Act, in sub-section (2), after the word "industry,", the Amendment word "technology," shall be inserted. of section 8. 10. In section 9 of the principal Act, in sub-section (1), in clause (d), after the word, Amendment "industry,", the word "technology," shall be inserted. of section 9. 11. For section 12 of the principal Act, the following section shall be substituted, Substitution of namely:— new section for section 12. "12. (1) The Chairperson and other Members shall, for a period of two years from Restriction on the date on which they cease to hold office, not accept any employment in or advise as employment of Chairperson a consultant, retainer or in any other capacity whatsoever, or be connected with the and other management or administration of— Members. (a) any enterprise which is or has been a party to a proceeding before the Commission under this Act; or (b) any person who appears or has appeared before the Commission under section 35. (2) Notwithstanding anything contained in section 35, the Chairperson or any other Members after retirement or otherwise ceasing to be in service for any reason shall not represent for any person or enterprise before the Commission: Provided that nothing contained in this section shall apply to any employment under the Central Government or a State Government or local authority or in any statutory authority or any corporation established by or under any Central, State or Provincial Act or a Government company as defined in clause (45) of section 2 of the 18 of 2013. Companies Act, 2013.". 12. In section 16 of the principal Act, in sub-section (1), for the words "Central Amendment Government may, by notification", the words "Commission may, with the prior approval of of section 16. the Central Government" shall be substituted. 13. For section 18 of the principal Act, the following section shall be substituted, Substitution of namely:— new section for section 18. "18. Subject to the provisions of this Act, it shall be the duty of the Commission Duties and to eliminate practices having adverse effect on competition, promote and sustain functions of Commission. competition, protect the interests of consumers and ensure freedom of trade carried on by other participants, in markets in India:12 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— Provided that the Commission may, for the purpose of discharging its duties or performing its functions under this Act, enter into any memorandum or arrangement with the prior approval of the Central Government, with any agency of any foreign country: Provided further that, the Commission may, for the purpose of discharging its duties or performing its functions under this Act, enter into any memorandum or arrangement with any statutory authority or department of Government.". Amendment 14. In section 19 of the principal Act,— of section 19. (a) in sub-section (1), the following provisos shall be inserted, namely:— "Provided that the Commission shall not entertain an information or a reference unless it is filed within three years from the date on which the cause of action has arisen: Provided further that an information or a reference may be entertained after the period specified in the first proviso if the Commission is satisfied that there had been sufficient cause for not filing the information or the reference within such period after recording its reasons for condoning such delay."; (b) in sub-section (3),— (i) in clause (c), the words "by hindering entry into the market" shall be omitted; (ii) in clause (d), for the words "accrual of benefits", the words "benefits or harm" shall be substituted; (c) in sub-section (6), after clause (h), the following clauses shall be inserted, namely:— "(i) characteristics of goods or nature of services; (j) costs associated with switching supply or demand to other areas."; (d) in sub-section (7),— (i) in clause (a), after the words "end-use of goods", the words "or the nature of services" shall be inserted; (ii) after clause (f), the following clauses shall be inserted, namely:— "(g) costs associated with switching demand or supply to other goods or services; (h) categories of customers.". Amendment 15. In section 20 of the principal Act,— of section 20. (a) in sub-section (1), for the words, brackets and letter "clause (c) of that section", the words, brackets, letters and figure "clause (c) of section 5 or acquisition of any control, shares, voting right or assets of an enterprise, merger or amalgamation referred to in clause (d) of that section" shall be substituted; (b) in sub-section (3), after the words "value of turnover", the words "or the value of transaction'' shall be inserted; (c) in sub-section (4), in clause (c), for the word "combination", the word "concentration" shall be substituted. Amendment 16. In section 21 of the principal Act, in sub-section (1), for the proviso, the following of section 21. proviso shall be substituted, namely:— "Provided that any statutory authority, may, suo motu, make a reference to theSEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 13 Commission on any issue that involves any provision of this Act or is related to promoting the objectives of this Act, as the case may be.". 17. In section 21A of the principal Act, in sub-section (1),— Amendment of section (a) for the words "this Act", the words "an Act" shall be substituted; 21A. (b) for the proviso, the following proviso shall be substituted, namely:— "Provided that the Commission, may, suo motu, make a reference to a statutory authority on any issue that involves provisions of an Act whose implementation is entrusted to that statutory authority.". 18. In section 22 of the principal Act, in sub-section (3), the words "and in the event Amendment of equality of votes, the Chairperson or in his absence, the Member presiding, shall have a of section 22. second or casting vote" shall be omitted. 19. In section 26 of the principal Act,— Amendment of section 26. (a) after sub-section (2), the following sub-section shall be inserted, namely:— "(2A) The Commission may not inquire into agreement referred to in section 3 or conduct of an enterprise or group under section 4, if the same or substantially the same facts and issues raised in the information received under section 19 or reference from the Central Government or a State Government or a statutory authority has already been decided by the Commission in its previous order."; (b) after sub-section (3), the following sub-sections shall be inserted, namely:— "(3A) If, after consideration of the report of the Director General referred to in sub-section (3), the Commission is of the opinion that further investigation is required, it may direct the Director General to investigate further into the matter. (3B) The Director General shall, on receipt of direction under sub-section (3A), investigate the matter and submit a supplementary report on his findings within such period as may be specified by the Commission."; (c) in sub-section (4), for the word, brackets and figure "sub-section (3)", at both the places where they occur, the words, brackets, figures and letter "sub-sections (3) and (3B)" shall be substituted; (d) in sub-section (5), for the word, brackets and figure "sub-section (3)", the words, brackets, figures and letter "sub-sections (3) and (3B)" shall be substituted; (e) in sub-section (8), for the word, brackets and figure "sub-section (3)", the words, brackets, figures and letter "sub-sections (3) and (3B)" shall be substituted; (f) after sub-section (8), the following sub-section shall be inserted, namely:— "(9) Upon completion of the investigation or inquiry under sub-section (7) or sub-section (8), as the case may be, the Commission may pass an order closing the matter or pass an order under section 27, and send a copy of its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be: Provided that before passing such order, the Commission shall issue a show-cause notice indicating the contraventions alleged to have been committed and such other details as may be specified by regulations and give a reasonable opportunity of being heard to the parties concerned.". 20. In section 27 of the principal Act, for clause (b), the following clause shall be Amendment substituted, namely:— of section 27. '(b) impose such penalty, as it may deem fit which shall be not more than ten per cent. of the average of the turnover or income, as the case may be, for the last14 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— three preceding financial years, upon each of such person or enterprise which is a party to such agreement or has abused its dominant position: Provided that in case any agreement referred to in section 3 has been entered into by a cartel, the Commission may impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty of up to three times of its profit for each year of the continuance of such agreement or ten per cent. of its turnover or income, as the case may be, for each year of the continuance of such agreement, whichever is higher. Explanation.—For the purposes of this clause, the expression "turnover" or "income", as the case may be, shall be determined in such manner as may be specified by regulations.'. Amendment 21. In section 29 of the principal Act,— of section 29. (a) in sub-section (1), for the words "within thirty days", the words "within fifteen days" shall be substituted; (b) after sub-section (1A), the following sub-section shall be inserted, namely:— "(1B) The Commission shall, within twenty days of receipt of notice under sub-section (2) of section 6, form its prima facie opinion referred to in sub-section (1)."; (c) in sub-section (2),— (i) for the words "within seven working days", the words "within seven days" shall be substituted; (ii) for the words "within ten working days", the words "within seven days" shall be substituted; (d) in sub-section (3), for the words "within fifteen working days", the words "within ten days" shall be substituted; (e) in sub-section (4), for the words "within fifteen working days", the words "within seven days" shall be substituted; (f) in sub-section (5), for the words "within fifteen days", the words "within ten days" shall be substituted; (g) for sub-section (6), the following sub-sections shall be substituted, namely:— "(6) After receipt of all information, the Commission shall proceed to deal with the case in accordance with the provisions contained in section 29A or section 31, as the case may be. (7) Notwithstanding anything contained in this section, the Commission may accept appropriate modifications offered by the parties to the combination or suo motu propose modifications, as the case may be, before forming a prima facie opinion under sub-section (1).". Insertion of 22. After section 29 of the principal Act, the following section shall be inserted, new section namely:— 29A. Issue of "29A. (1) Upon completion of the process under section 29, where the Commission statement of is of the opinion that the combination has, or is likely to have, an appreciable adverse objections by effect on competition, it shall issue a statement of objections to the parties identifying Commission such appreciable adverse effect on competition and direct the parties to explain within and proposal of twenty-five days of receipt of the statement of objections, why such combination modifications. should be allowed to take effect. (2) Where the parties to the combination consider that such appreciable adverse effect on competition can be eliminated by suitable modification to such combination,SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 15 they may submit an offer of appropriate modification to the combination along with their explanation to the statement of objections issued under sub-section (1) in such manner as may be specified by regulations. (3) If the Commission does not accept the modification submitted by the parties under sub-section (2) it shall, within seven days from the date of receipt of the proposed modifications under that sub-section, communicate to the parties as to why the modification is not sufficient to eliminate the appreciable adverse effect on competition and call upon the parties to furnish, within twelve days of the receipt of the said communication, revised modification, if any, to eliminate the appreciable adverse effects on competition: Provided that the Commission shall evaluate such proposal for modification within twelve days from receipt of such proposal: Provided further that the Commission may suo motu propose appropriate modifications to the combination which may be considered by the parties to the combination.". 23. In section 31 of the principal Act,— Amendment of section 31. (a) in the marginal heading, the word "certain" shall be omitted; (b) in sub-section (1), the words "including the combination" shall be omitted; (c) after sub-section (1), the following proviso shall be inserted, namely:— "Provided that if the Commission does not form a prima facie opinion as provided under sub-section (1B) of section 29, the combination shall be deemed to have been approved and no separate order shall be required to be passed."; (d) for sub-sections (3), (4), (5) and (6), the following sub-sections shall be substituted, namely:— "(3) Where the Commission is of the opinion that any appreciable adverse effect on competition that the combination has, or is likely to have, can be eliminated by modification proposed by the parties or the Commission, as the case may be, under sub-section (7) of section 29 or sub-section (2) or sub-section (3) of section 29A, it may approve the combination subject to such modifications as it thinks fit. (4) Where a combination is approved by the Commission under sub-section (3), the parties to the combination shall carry out such modification within such period as may be specified by the Commission. (5) Where— (a) the Commission has directed under sub-section (2) that the combination shall not take effect; or (b) the parties to the combination, fail to carry out the modification within such period as may be specified by the Commission under sub-section (4); or (c) the Commission is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition which cannot be eliminated by suitable modification to such combination, then, without prejudice to any penalty which may be imposed or any prosecution which may be initiated under this Act, the Commission may order that such combination shall not be given effect to, or be declared void, or frame a scheme to be implemented by the parties to address the appreciable adverse effect on competition, as the case may be.16 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— (6) If no order is passed or direction issued by the Commission in accordance with the provisions of sub-section (1) or sub-section (2) or sub-section (3) or sub-section (5), as the case may be, within a period of one hundred and fifty days from the date of notice given to the Commission under sub-section (2) of section 6, the combination shall be deemed to have been approved by the Commission: Provided that the Commission may, by order, extend the said period of one hundred and fifty days by such further period as it thinks fit, but not exceeding thirty days in case parties to the combination request for additional time to furnish relevant information or remove defects to the notice filed under sub-section (2) of section 6."; (e) sub-sections (7), (8), (9), (10), (11) and (12) shall be omitted. Amendment 24. In section 32 of the principal Act, for the figures and word "29 and 30", the figures, of section 32. letter and word "29, 29A and 30" shall be substituted. Amendment 25. Section 35 of the principal Act shall be numbered as sub-section (1) thereof,— of section 35. (a) in sub-section (1) as so numbered, for the words "A person or an enterprise", the words "A party'' shall be substituted; (b) after sub-section (1) as so numbered, the following sub-section shall be inserted, namely:— "(2) Without prejudice to sub-section (1), a party may call upon experts from the fields of economics, commerce, international trade or from any other discipline to provide an expert opinion in connection with any matter related to a case.". Amendment 26. In section 41 of the principal Act,— of section 41. (a) for sub-section (3), the following sub-sections shall be substituted, namely:— "(3) Without prejudice to sub-section (2), it shall be the duty of all officers, other employees and agents of a party which are under investigation— (a) to preserve and to produce all information, books, papers, other documents and records of, or relating to, the party which are in their custody or power to the Director General or any person authorised by it in this behalf; and (b) to give all assistance in connection with the investigation to the Director General. (4) The Director General may require any person other than a party referred to in sub-section (3) to furnish such information or produce such books, papers, other documents or records before it or any person authorised by it in this behalf if furnishing of such information or the production of such books, papers, other documents or records is relevant or necessary for the purposes of its investigation. (5) The Director General may keep in his custody any information, books, papers, other documents or records produced under sub-section (3) or sub-section (4) for a period of one hundred and eighty days and thereafter shall return the same to the person by whom or on whose behalf the information, books, papers, other documents or records were produced: Provided that the information, books, papers, other documents or records may be called for by the Director General if they are needed again for a further period of one hundred and eighty days by an order in writing:SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 17 Provided further that the certified copies of the information, books, papers, other documents or records, as may be applicable, produced before the Director General may be provided to the party or person on whose behalf the information, books, papers, other documents or records are produced at their own cost. (6) The Director General may examine on oath— (a) any of the officers and other employees and agents of the party being investigated; and (b) with the previous approval of the Commission, any other person, in relation to the affairs of the party being investigated and may administer an oath accordingly and for that purpose may require any of those persons to appear before it personally. (7) The examination under sub-section (6) shall be recorded in writing and shall be read over to or by, and signed by, the person examined and may thereafter be used in evidence against it. (8) Where in the course of investigation, the Director General has reasonable grounds to believe that information, books, papers, other documents or records of, or relating to, any party or person, may be destroyed, mutilated, altered, falsified or secreted, the Director General may make an application to the Chief Metropolitan Magistrate, Delhi for an order for seizure of such information, books, papers, other documents or records. (9) The Director General may make requisition of the services of any police officer or any officer of the Central Government to assist him for all or any of the purposes specified in sub-section (10) and it shall be the duty of every such officer to comply with such requisition. (10) The Chief Metropolitan Magistrate, Delhi may, after considering the application and hearing from the Director General, by order, authorise the Director General— (a) to enter, with such assistance, as may be required, the place or places where such information, books, papers, other documents or records are kept; (b) to search that place or places in the manner specified in the order; and (c) to seize information, books, papers, other documents or records as it considers necessary for the purpose of the investigation: Provided that certified copies of the seized information, books, papers, other documents or records, as the case may be, may be provided to the party or person from whose place or places such documents have been seized at its cost. (11) The Director General shall keep in his custody such information, books, papers, other documents or records seized under this section for such period not later than the conclusion of the investigation as it considers necessary and thereafter shall return the same to the party or person from whose custody or power they were seized and inform the Chief Metropolitan Magistrate, of such return: Provided that the Director General may, before returning such information, books, papers, other documents or records take copies of, or extracts thereof or place identification marks on them or any part thereof.18 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— (12) Save as otherwise provided in this section, every search or seizure made under this section shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1973, relating to search or seizure made under 2 of 1974. that Code."; (b) for the Explanation, the following Explanation shall be substituted, namely:— ‘Explanation.—For the purposes of this section,— (a) "agent", in relation to any person, means, any one acting or purporting to act for or on behalf of such person, and includes the bankers and legal advisers of, and persons employed as auditors by, such person; (b) "officers", in relation to any company or body corporate, includes any trustee for the debenture holders of such company or body corporate; (c) any reference to officers and other employees or agents shall be construed as a reference to past as well as present officers and other employees or agents, as the case may be.’. Amendment 27. In section 42 of the principal Act,— of section 42. (a) in sub-section (2), for the words, figures and letters "sections 27, 28, 31, 32, 33, 42A and 43A of the Act, he shall be punishable with fine", the words, figures and letters "sections 6, 27, 28, 31, 32, 33, 42A, 43, 43A, 44 and 45 of the Act, he shall be liable to a penalty" shall be substituted; (b) in sub-section (3), for the words, brackets and figure "pay the fine imposed under sub-section (2)'', the words, brackets and figure "pay the penalty imposed under sub-section (2)'' shall be substituted. Amendment 28. In section 42A of the principal Act, for the words and figures "under sections 27", of section the words and figures "under sections 6, 27" shall be substituted. 42A. Amendment 29. In section 43 of the principal Act, for the words "shall be punishable with fine", the of section 43. words "shall be liable to a penalty" shall be substituted. Substitution 30. For section 43A of the principal Act, the following section shall be substituted,— of new section for section 43A. Power to "43A. If any person or enterprise fails to give notice to the Commission under impose sub-section (2) or sub-section (4) of section 6 or contravenes sub-section (2A) of penalty for section 6 or submit information pursuant to an inquiry under sub-section (1) of non- furnishing of section 20, the Commission may impose on such person or enterprise, a penalty which information may extend to one per cent., of the total turnover or assets or the value of transaction on referred to in clause (d) of section 5, whichever is higher, of such a combination: combination. Provided that in case any person or enterprise has given a notice under sub-section (4) of section 6 and such notice is found to be void ab initio under sub-section (6) of section 6, then a notice under sub-section (2) of section 6 may be given by the acquirer or parties to the combination, as may be applicable, within a period of thirty days of the order of the Commission under sub-section (6) of that section and no action under this section shall be taken by the Commission till the expiry of such period of thirty days.". Amendment 31. In section 44 of the principal Act, for the words "rupees one crore", the words of section 44. "rupees five crore" shall be substituted.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 19 32. In section 45 of the principal Act,— Amendment of section 45. (a) in the marginal heading, for the word "offences", the word "contraventions" shall be substituted; (b) in sub-section (1),— (i) after the words "Without prejudice to the provisions of", the words, brackets and figures "sub-section (6) of section 6 and" shall be inserted; (ii) for the words "punishable with fine", the words "liable to a penalty" shall be substituted. 33. For section 46 of the principal Act, the following section shall be substituted, Substitution of namely:— new section for section 46. "46. (1) The Commission may, if it is satisfied that any producer, seller, Power to distributor, trader or service provider included in any cartel, which is alleged to have impose lesser violated section 3, has made a full and true disclosure in respect of the alleged penalty. violations and such disclosure is vital, impose upon such producer, seller, distributor, trader or service provider a lesser penalty as may be specified by regulations, than leviable under this Act or the rules or the regulations made under this Act: Provided that lesser penalty shall not be imposed by the Commission in cases where the report of investigation directed under section 26 has been received before making of such disclosure: Provided further that lesser penalty shall be imposed by the Commission only in respect of a producer, seller, distributor, trader or service provider included in the cartel, who has made the full, true and vital disclosures under this section: Provided also that lesser penalty shall not be imposed by the Commission if the person making the disclosure does not continue to co-operate with the Commission till the completion of the proceedings before the Commission: Provided also that the Commission may, if it is satisfied that such producer, seller, distributor, trader or service provider included in the cartel had in the course of proceedings,— (a) not complied with the condition on which the lesser penalty was imposed by the Commission; or (b) had given false evidence; or (c) the disclosure made is not vital, and thereupon such producer, seller, distributor, trader or service provider may be tried for the contravention with respect to which the lesser penalty was imposed and shall also be liable to the imposition of penalty to which such person has been liable, had lesser penalty not been imposed. (2) The Commission may allow a producer, seller, distributor, trader or service provider included in the cartel, to withdraw its application for lesser penalty under this section, in such manner and within such time as may be specified by regulations. (3) Notwithstanding anything contained in sub-section (2), the Director General and the Commission shall be entitled to use for the purposes of this Act, any evidence submitted by a producer, seller, distributor, trader or service provider in its application for lesser penalty, except its admission. (4) Where during the course of the investigation, a producer, seller, distributor, trader or service provider who has disclosed a cartel under sub-section (1), makes a full, true and vital disclosure under sub-section (1) with respect to another cartel in which it is alleged to have violated section 3, which enables the Commission to form a prima facie opinion under sub-section (1) of section 26 that there exists another cartel, then the Commission may impose upon such producer, seller,20 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— distributor, trader or service provider a lesser penalty as may be specified by regulations, in respect of the cartel already being investigated, without prejudice to the producer, seller, distributor, trader or service provider obtaining lesser penalty under sub-section (1) regarding the newly disclosed cartel.". Amendment 34. For section 47 of the principal Act, after the word "penalties'', the words "and of section 47. recovery of legal costs by the Commission" shall be inserted. Substitution of 35. For section 48 of the principal Act, the following sections shall be substituted, new sections namely:— for section 48. Contravention '48. (1) Where a person committing contravention of any of the provisions of by companies. this Act or of any rule, regulation, order made or direction issued thereunder is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be in contravention of this Act and unless otherwise provided in this Act, the Commission may impose such penalty on such persons, as it may deem fit which shall not be more than ten per cent. of the average of the income for the last three preceding financial years: Provided that in case any agreement referred to in sub-section (3) of section 3 has been entered into by a cartel, the Commission may unless otherwise provided in this Act, impose upon such persons referred to in sub-section (1), a penalty of up to ten per cent. of the income for each year of the continuance of such agreement. (2) Nothing contained in sub-section (1) shall render any such person liable to any penalty if he proves that the contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such contravention. (3) Notwithstanding anything contained in sub-section (1), where a contravention of any of the provisions of this Act or of any rule, regulation, order made or direction issued thereunder has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be in contravention of the provisions of this Act and unless otherwise provided in this Act, the Commission may impose such penalty on such persons, as it may deem fit which shall not be more than ten per cent. of the average of the income for the last three preceding financial years: Provided that in case any agreement referred to in sub-section (3) of section 3 has been entered into by a cartel, the Commission may, unless otherwise provided under this Act, impose upon such person a penalty as it may deem fit which shall not exceed ten per cent. of the income for each year of the continuance of such agreement. Explanation.—For the purposes of this section,— (a) "company" means a body corporate and includes a firm or other association of individuals; (b) "director", in relation to a firm, means a partner in the firm; (c) "income", in relation to a person, shall be determined in such manner as may be specified by regulations. Settlement. 48A. (1) Any enterprise, against whom any inquiry has been initiated under sub-section (1) of section 26 for contravention of sub-section (4) of section 3 or section 4, may, for settlement of the proceeding initiated for the alleged contraventions, submit an application in writing to the Commission in such form and upon payment of such fee as may be specified by regulations.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 21 (2) An application under sub-section (1) may be submitted at any time after the receipt of the report of the Director General under sub-section (4) of section 26 but prior to such time before the passing of an order under section 27 or section 28 as may be specified by regulations. (3) The Commission may, after taking into consideration the nature, gravity and impact of the contraventions, agree to the proposal for settlement, on payment of such amount by the applicant or on such other terms and manner of implementation of settlement and monitoring as may be specified by regulations. (4) While considering the proposal for settlement, the Commission shall provide an opportunity to the party concerned, the Director General, or any other party to submit their objections and suggestions, if any. (5) If the Commission is of the opinion that the settlement offered under sub-section (1) is not appropriate in the circumstances or if the Commission and the party concerned do not reach an agreement on the terms of the settlement within such time as may be specified by regulations, it shall, by order, reject the settlement application and proceed with its inquiry under section 26. (6) The procedure for conducting the settlement proceedings under this section shall be such as may be specified by regulations. (7) No appeal shall lie under section 53B against any order passed by the Commission under this section. (8) All settlement amounts, realised under this Act shall be credited to the Consolidated Fund of India. 48B. (1) Any enterprise, against whom any inquiry has been initiated under Commitment. sub-section (1) of section 26 for contravention of sub-section (4) of section 3 or section 4, as the case may be, may submit an application in writing to the Commission, in such form and on payment of such fee as may be specified by regulations, offering commitments in respect of the alleged contraventions stated in the Commission's order under sub-section (1) of section 26. (2) An offer for commitments under sub-section (1) may be submitted at any time after an order under sub-section (1) of section 26 has been passed by the Commission but within such time prior to the receipt by the party of the report of the Director General under sub-section (4) of section 26 as may be specified by regulations. (3) The Commission may, after taking into consideration the nature, gravity and impact of the alleged contraventions and effectiveness of the proposed commitments, accept the commitments offered on such terms and the manner of implementation and monitoring as may be specified by regulations. (4) While considering the proposal for commitment, the Commission shall provide an opportunity to the party concerned, the Director General, or any other party to submit their objections and suggestions, if any. (5) If the Commission is of the opinion that the commitment offered under sub-section (1) is not appropriate in the circumstances or if the Commission and the party concerned do not reach an agreement on the terms of the commitment, it shall pass an order rejecting the commitment application and proceed with its inquiry under section 26 of the Act. (6) The procedure for commitments offered under this section shall be such as may be specified by regulations. (7) No appeal shall lie under section 53B against any order passed by the Commission under this section.22 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— Revocation 48C. If an applicant fails to comply with the order passed under section 48A or of the section 48B or it comes to the notice of the Commission that the applicant has not settlement or made full and true disclosure or there has been a material change in the facts, the order commitment passed under section 48A or section 48B, as the case may be, shall stand revoked and order and penalty. withdrawn and such enterprise shall be liable to pay legal costs incurred by the Commission which may extend to rupees one crore and the Commission may restore or initiate the inquiry in respect of which the order under section 48A or section 48B was passed.'. Amendment 36. In section 49 of the principal Act, in sub-section (3), after the words "competition of section 49. advocacy", the words "or culture" shall be inserted. Amendment 37. In section 51 of the principal Act, in sub-section (1), after clause (d), the following of section 51. clause shall be inserted, namely:— "(e) all sums received by the Commission from such other sources as may be decided upon by the Government.". Amendment 38. In section 53A of the principal Act, in sub-section (1), in clause (a), for the words, of section brackets and figures "sub-sections (2) and (6) of section 26", the words, brackets, figures 53A. and letter "sub-section (6) of section 6, sub-sections (2), (2A), (6) and (9) of section 26", shall be substituted. Amendment 39. In section 53B, in sub-section (2), after the proviso, the following proviso shall be of section inserted, namely:— 53B. "Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the Commission, shall be entertained by the Appellate Tribunal unless the appellant has deposited twenty-five per cent. of that amount in the manner as directed by the Appellate Tribunal.". Amendment 40. In section 53N of the principal Act,— of section 53N. (a) in sub-section (1), for the words, brackets, figures and letter "under sub-section (2) of section 53Q", the words, brackets, figures and letters "under sub-section (2) of section 53Q or the orders of the Supreme Court in an appeal against the findings of the Appellate Tribunal under section 53T" shall be substituted; (b) in sub-section (2), after the words "findings of the Commission", the words "or Appellate Tribunal or the Supreme Court" shall be inserted; (c) in the Explanation,— (i) in clause (a), after the words, brackets, figures and letter "sub-section (1) of section 53A", the words, figures and letter "or the Supreme Court on appeal under section 53T" shall be inserted; (ii) in clause (b), after the words "or the Appellate Tribunal", the words "or the Supreme Court," shall be inserted. Amendment 41. In section 53Q of the principal Act, for sub-section (1), the following sub-section of section shall be substituted, namely:— 53Q. "(1) Without prejudice to the provisions of this Act, if any person contravenes, without any reasonable ground, any order of the Appellate Tribunal, he shall be liable for contempt proceeding under section 53U.". Insertion of 42. After section 59 of the principal Act, the following section shall be inserted, namely:— new section 59A. Compounding "59A. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, 2 of 1974. of certain any offence punishable under this Act, not being an offence punishable with offences.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 23 imprisonment only or imprisonment and also with fine, may either before or after the institution of any proceeding, be compounded by the Appellate Tribunal or a court before which such proceeding is pending.". 43. In section 63 of the principal Act, in sub-section (2),— Amendment of section 63. (i) clause (a) shall be re-lettered as clause (ae) thereof, and before clause (ae) as so re-lettered, the following clauses shall be inserted, namely:— "(a) the value of the assets or turnover of the enterprise acquired, taken control of, merged or amalgamated in India under clause (e) of section 5; (ab) the percentage of voting rights higher than twenty-six per cent. under sub-clause (i) of clause (b) of the Explanation to section 5; (ac) the criteria of combinations under sub-section (4) of section 6; (ad) the criteria under sub-section (7) of section 6;"; (ii) after clause (mf), the following clause shall be inserted, namely:— "(mg) the form of the publication of guidelines under sub-section (5) of section 64B;". 44. In section 64 of the principal Act, in sub-section (2),— Amendment of section 64. (i) for clause (c), the following clauses shall be substituted, namely:— "(c) the manner of determination of substantial business operations in India under clause (d) of section 5; (ca) the form and fee for notice for combination under sub-section (4) of section 6; (cb) the time and manner for filing notice of acquisition under clause (a) of section 6A; (cc) the manner and circumstance in which the acquirer may exercise the ownership or beneficial right or interest in shares or convertible securities including voting right and receipt of dividends or any other distributions as an exception under clause (b) of section 6A;"; (ii) after clause (f), the following clauses shall be inserted, namely:— "(fa) other details to be indicated in the show-cause notice under sub-section (9) of section 26; (fb) the manner of determining turnover or income under the Explanation to clause (b) of section 27; (fc) the manner in which modification may be proposed by parties to the combination to the Commission under sub-section (2) of section 29A;"; (iii) after clause (g), the following clauses shall be inserted, namely:— "(ga) the lesser penalty to be imposed on producer, seller, distributor, trader or service provider under sub-section (1) of section 46; (gb) the manner and time for withdrawal of application for lesser penalty under sub-section (2) of section 46; (gc) the lesser penalty to be imposed on producer, seller, distributor, trader or service provider under sub-section (4) of section 46; (gd) the manner of determining income under clause (c) of Explanation to section 48;24 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— (ge) the form of application and fee under sub-section (1), the time under sub-section (2), the terms and manner of implementations and monitoring under sub-section (3) and the procedure for conducting settlement proceedings under sub-section (6) of section 48A; (gf) the form of application and fee under sub-section (1), the time under sub-section (2), the terms and manner of implementations and monitoring under sub-section (3) and the procedure for commitments offered under sub-section (6) of section 48B; (gg) the other details to be published along with draft regulations and the period for inviting public comments under clause (a) of section 64A;". Insertion of 45. After section 64 of the principal Act, the following sections shall be inserted, new sections namely:— 64A and 64B. Process of "64A. The Commission shall ensure transparency while making regulations issuing under section 64, by— regulations. (a) publishing draft regulations along with such other details as may be specified on its website and inviting public comments for a specified period prior to issuing regulations; (b) publishing a general statement of its response to the public comments, not later than the date of notification of the regulations; (c) periodically reviewing such regulations: Provided that if the Commission is of the opinion that certain regulations are required to be made or existing regulations are required to be amended urgently in public interest or the subject matter of the regulation relates solely to the internal functioning of the Commission, it may make regulations or amend the existing regulations, as the case may be, without following the provisions stated in this section recording the reason for doing so. Commission 64B. (1) The Commission may publish guidelines on the provisions of this Act or to issue the rules and regulations made thereunder either on a request made by a person or on guidelines. its own motion. (2) Guidelines issued under sub-section (1) shall not be construed as determination of any question of fact or law by the Commission, its Members or officers and shall not be binding on the Commission, its Members or officers. (3) Without prejudice to anything contained in sub-section (1), the Commission shall publish guidelines as to the appropriate amount of any penalty for any contravention of provision of this Act. (4) While imposing penalty under clause (b) of section 27 or under section 43A or section 48 for any contravention of provision of this Act, the Commission shall consider the guidelines under sub-section (3) and provide reasons in case of any divergence from such guidelines. (5) The guidelines under sub-sections (1) and (3) shall be published in such form as may be prescribed.".SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 25 STATEMENT OF OBJECTS AND REASONS The Competition Act, 2002 (hereinafter referred to as the said Act) was enacted in the year 2002, to provide for establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants, in India, and for matters connected therewith or incidental thereto. 2. There has been a significant growth of Indian markets and a paradigm shift in the way businesses operate in the last decade. In view of the economic development, emergence of various business models and the experience gained out of the functioning of the Commission, the Government of India constituted Competition Law Review Committee, to examine and suggest the modifications in the said Act. After review of the recommendations proposed by the Committee, public consultations and with a view to provide regulatory certainty and trust-based business environment, it is considered imperative to amend the said Act. 3. The Competition (Amendment) Bill, 2022, inter alia, provides for the following, namely:— (a) changes in certain definitions like “enterprise”, “relevant product market”, “Group”, “Control”, etc., to provide clarity; (b) broadening the scope of anti-competitive agreements and inclusion of a party facilitating an anti-competitive horizontal agreement under such agreements; (c) provisions for reduction of time-limit for approval of combinations from two hundred and ten days to one hundred and fifty days and forming a prima facie opinion by the Commission within twenty days for expeditious approval of combinations; (d) provisions for “value of transaction” as another criteria for notifying combinations to the Commission; (e) limitation period of three years for filing information on anti-competitive agreements and abuse of dominant position before the Commission; (f) appointment of the Director General by the Commission with the prior approval of the Central Government; (g) introduction of Settlement and Commitment framework to reduce litigations; (h) incentivising parties in an ongoing cartel investigation in terms of lesser penalty to disclose information regarding other cartels; (i) substitution of a provision which provides for penalty up to rupees one crore or imprisonment up to three years or both in case of contravention of any order of the National Company Law Appellate Tribunal with provision for contempt; (j) issuance of guidelines including on penalties to be imposed by the Commission. 4. The Bill seeks to achieve the above objectives. NEW DELHI; NIRMALA SITHARAMAN. The 28th July, 2022.26 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— Notes on Clauses Clause 1 of the Bill seeks to provide for short title and commencement of the Act. Clause 2 of the Bill seeks to substitute the reference of Companies Act, 1956 to Companies Act, 2013 throughout the Act. Clause 3 of the Bill seeks to amend certain definitions of the Act such as 'enterprise', 'relevant product market', etc. Clause 4 of the Bill seeks to amend section 3 of the Act to broaden the scope of anti-competitive agreements and also to include a party facilitating an anti-competitive horizontal agreement under such agreements. Clause 5 of the Bill seeks to amend section 4 of the Act to omit the word "discriminatory" in the Explanation to clause (a) of sub-section (2) of the said section. Clause 6 of the Bill seeks to amend section 5 of the Act to insert new clauses (d) and (e) to provide that if the value of any transaction in connection with acquisition of any control, shares, voting rights, etc., exceeds Rs. 2,000 crore, it would require filing a notice of combination before the Commission and to empower the Central Government to exempt certain transactions from the requirement to file combination notice under the Act. It further provides to substitute the Explanation to define the terms of turnover, value of transaction, etc. Clause 7 of the Bill seeks to amend section 6 of the Act to omit the reference of 30 days and to reduce the overall time limit of assessment of combinations to a period of 150 days from 210 days. It further provides to enable the Commission to extend the time limit up to a maximum period of 30 days to accommodate the request of parties to file additional information or to remove defects in the notice. It also provides to introduce a separate channel for certain combinations which shall be eligible for deemed approval upon filing of a notice under sub-section (4) of section 6 of the Act. Clause 8 of the Bill seeks to insert a new section 6A after section 6 of the Act to provide that the provisions contained in sub-section (2A) shall not prevent the implementation of an open offer or an acquisition of shares or securities convertible into other securities from various sellers through a series of transactions on a regulated stock exchange from coming into effect with certain conditions. Clause 9 of the Bill seeks to amend section 8 of the Act which refers to the composition of the Commission to amend sub-section (2) by including additional qualification for such Members in the field of technology. Clause 10 of the Bill seeks to amend section 9 of the Act which refers to the composition of the selection committee for Chairperson and Members and also seeks to introduce knowledge and experience in the field of technology as additional criteria for the members of the selection committee. Clause 11 of the Bill seeks to substitute section 12 of the Act to restrict the acceptance of employment by Chairperson and Members of the Commission within a period of 2 years from the date of ceasing the office. Clause 12 of the Bill seeks to amend section 16 of the Act to empower the Commission to appoint the Director General with the prior approval of the Central Government. Clause 13 of the Bill seeks to substitute section 18 of the Act to enable the Commission to eliminate practices having adverse effect on competition, promote and sustain competition, protect the interest of consumers and enter into a memorandum or arrangement with department of Government or statutory bodies.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 27 Clause 14 of the Bill seeks to amend section 19 of the Act to provide that the Commission shall not entertain any information or reference beyond the period of three years from the date of cause of action. However, the Commission may condone the delay if it is satisfied with the reasons given by the parties. Clause 15 of the Bill seeks to amend section 20 of the Act to substitute the term "combination" with "concentration" and insert "value of transaction". Clause 16 of the Bill seeks to amend section 21 of the Act in order to broaden the grounds on which the statutory authorities may suo motu make a reference to the Commission. Clause 17 of the Bill seeks to amend section 21A of the Act to allow the statutory authority to make a reference suo motu to the Commission on any issue which involves any provision of the Act or is relating to promoting the objectives of this Act. Clause 18 of the Bill seeks to amend section 22 of the Act to omit certain references. Clause 19 of the Bill seeks to amend section 26 of the Act to enable the Commission to pass orders without conducting an inquiry for closure of certain cases; to direct the Director General to investigate the matter and to submit a supplementary report on his finding to enable the Commission to pass an order in this regard. Clause 20 of the Bill seeks to amend section 27 to empower the Commission to pass orders in relation to anti-competitive agreements and the abuse of dominant position by inserting a reference to income. Clause 21 of the Bill seeks to amend section 29 of the Act to provide that the Commission shall form prima facie opinion within 20 days of receipt of notice under sub-section (2) of section 6 and further to reduce the period of the completion of investigation within 150 days instead of 210 days. Clause 22 of the Bill seeks to insert a new section 29A for issuance of statement of objections by the Commission and proposal of modifications. Clause 23 of the Bill seeks to amend section 31 of the Act to omit the word "certain" and provides that combination shall be deemed to have been approved and no separate order shall be required if the Commission does not form a prima facie opinion within 20 days as provided under sub-section (IB) of section 29. Clause 24 of the Bill seeks to amend section 32 of the Act to make a reference of 29A therein. Clause 25 of the Bill seeks to amend section 35 of the Act to insert sub-section (2) to enable a party to call upon experts from the fields of economics, commerce, international trade or any other discipline for an expert opinion in relation to a case before the Commission. Clause 26 of the Bill seeks to amend section 41 of the Act to provide procedure for investigation, inquiry, etc. and powers of the Director General to investigate the contravention of any provision of the Act. Clause 27 of the Bill seeks to amend section 42 of the Act to substitute the words "punishable with fine" with the words "liable to a penalty" and to make a reference of sections 6, 43, 44 and 45 of the Act. Clause 28 of the Bill seeks to amend section 42A of the Act to make a reference of section 6. Clause 29 of the Bill seeks to amend section 43 of the Act to substitute the words "punishable with fine" with the words "liable to a penalty". Clause 30 of the Bill seeks to amend section 43A of the Act to empower the Commission to impose penalty for non-furnishing of information in relation to combination.28 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— Clause 31 of the Bill seeks to amend section 44 of the Act to enhance the penalty from rupees one crore to rupees five crore. Clause 32 of the Bill seeks to amend section 45 of the Act to substitute the word "offences" with the word "contraventions" and to make a reference of sub-section (6) of section 6 and to substitute the words "punishable with fine" with the words "liable to a penalty". Clause 33 of the Bill seeks to substitute section 46 of the Act which empower the Commission to impose lesser penalty as may be specified by regulation. Clause 34 of the Bill seeks to amend section 47 of the Act to empower the Commission to recover legal cost in addition to penalty. Clause 35 of the Bill seeks to substitute section 48 of the Act to provide for the liability of a person in case of contravention made by the company for contravention of any provisions of the Act, rules, regulations, order or directions issued or made thereunder, to a penalty which shall not be more than ten per cent. of the average of the income for the last three preceding financial years and with certain other provisions. It further seeks to insert new sections 48A, 48B and 48C to provide for various provisions with regard to settlement, commitment, order and payment of legal costs with its revocation. Clause 36 of the Bill seeks to amend section 49 of the Act to insert the word "or culture" after the words, "competition advocacy" in order to broaden the grounds of competition advocacy. Clause 37 of the Bill seeks to amend section 51 of the Act to insert a new clause (e) in sub-section (1) to receive sums by the Commission from other sources as may be decided by the Government. Clause 38 of the Bill seeks to amend section 53A of the Act to make reference of certain sub-sections of section 26. Clause 39 of the Bill seeks to amend section 53B of the Act to insert a proviso in sub-section (2) to empower the appellate tribunal not to entertain an appeal unless the appellant deposits twenty-five per cent. of the amount of penalty imposed by the Commission. Clause 40 of the Bill seeks to amend section 53N of the Act to allow the parties to file the application for compensation from orders of the Supreme Court in an appeal against the findings of the Appellate Tribunal under section 53T of the Act. Clause 41 of the Bill seeks to amend section 53Q of the Act to provide contempt proceeding under section 53U if any person contravenes any order of the Appellate Tribunal. Clause 42 of the Bill seeks to insert new section 59A of the Act to provide the offences punishable under this Act, not being an offence punishable with the imprisonment only or imprisonment and also with fine shall be compoundable. Clause 43 of the Bill seeks to amend section 63 of the Act to provide certain provisions for the purpose of making rules by the Central Government. Clause 44 of the Bill seeks to amend section 64 of the Act to provide certain provisions for the purpose of making regulations by the Commission. Clause 45 of the Bill seeks to insert new sections 64A and 64B to provide for process of issuing regulations and guidelines.SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 29 FINANCIAL MEMORANDUM The Bill does not involve any expenditure, recurring or non-recurring, from the Consolidated Fund of India. ————— MEMORANDUM REGARDING DELEGATED LEGISLATION Clause 43 of the Bill seeks to amend section 63 of the Competition Act, 2002.This clause empowers the Central Government to make rules for the purposes of carrying out the provisions of the proposed legislation. Such rules, may, inter alia, provide for (i) the value of the assets or turnover of the enterprise to be acquired, taken control of, merged or amalgamated in India under clause (e) of section 5; (ii) the percentage of voting rights higher than twenty-six percentage under sub-clause (i) of clause (b) of the Explanation of section 5; (iii) the criteria for combinations under sub-section (4) of section 6; (iv) the criteria under sub-section (7) of section 6; (v) the form for the publication of guidelines under sub-section (5) of section 64B. Clause 44 of the Bill seeks to amend section 64 of the Competition Act, 2002. This clause empowers the Competition Commission of India to make regulations, consistent with the provisions of the Bill and rules made thereunder, for the purposes of carrying out the provisions of the proposed legislation. Such regulations may, inter alia, provide for (i) the manner of determination of substantial business operations in India under clause (d) of section 5; (ii) the form and fees for notice for combination under sub-section (4) of section 6; (iii) the time and manner for filing notice of acquisition under clause (a) of section 6A; (iv) the manner and circumstance in which the acquirer may exercise the ownership or beneficial right or interest in shares or convertible securities including voting right and receipt of dividends or any other distributions as an exception under clause (b) of section 6A; (v) the other details to be indicated in the show-cause notice under sub-section (9) of section 26; (vi) the manner of determining turnover or income under the Explanation to clause (b) of section 27; (vii) the manner in which modification may be proposed by parties to the combination to the Commission under sub-section (2) of section 29A; (viii) the lesser penalty to be imposed on producer, seller, distributor, trader or service provider under sub-section (1) of section 46; (ix) the manner and time for withdrawal of application for lesser penalty under sub-section (2) of section 46; (x) the lesser penalty to be imposed on producer, seller, distributor, trader or service provider under sub-section (4) of section 46; (xi) the manner of determining income under clause (c) of Explanation to section 48; (xii) the form of application and fee under sub-section (1), the time under sub-section (2) and the terms and manner of implementation and monitoring under sub-section (3), the procedure for conducting settlement proceedings under sub-section (6) of section 48A, (xiii) the form of application and fee under sub-section (1), the time under sub-section (2), the terms and manner of implementations and monitoring under sub-section (3) and procedure for commitments offered under sub-section (6) of section 48B; (xiv) the other details to be published along with draft regulations and the period for inviting public comments under clause (a) of section 64A. The rules and regulations made under the proposed legislation shall be required to be laid before each House of Parliament. The matter in respect of which rules and regulations may be made under the aforesaid provisions are matters of detail or of procedural in nature and administrative details and it is not practical to provide for them in the Bill itself. The delegation of legislative power is, therefore, of a normal character.30 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—SEC. 2] LOK SABHA ———— CORRIGENDUM to THE COMPETITION (AMENDMENT) BILL, 2022 [To be/As introduced in Lok Sabha] 1. Page 7, line 32,— for "other member after" read "other Members after" NEW DELHI; August, 3, 2022 Sravana 12, 1944 (Saka) ————— UTPAL KUMAR SINGH Secretary-General UPLOADED BY THE MANAGER, GOVERNMENT OF INDIA PRESS, MINTO ROAD, NEW DELHI–110002 AND PUBLISHED BY THE CONTROLLER OF PUBLICATIONS, DELHI–110054. MGIPMRND—849GI(S3)—24-08-2022.