Complaint of money laundering and corruption against NDTV Ltd and General Electric Company arising out of the order dated 31.12.2013 of the Income Tax Dispute Resolution Panel –II in the case of NDTV Ltd pertaining to the assessment year 2009-2010
To
- The President of
- The Prime Minister of
- The Chief Justice of
- The Chief Justice of the
- The President of the
- The Attorney General of the
- The Federal Bureau of Investigations,
- The United States Department of Justice
- The Securities and Exchange Commission of the
- The United States Ambassador in
- The Central Bureau of Investigations,
- The Serious Fraud Investigation Office of the
- Commissioner of Police for
- The Central Vigilance Commissioner, Government of
The order dated 31.12.2013 of the Dispute Resolution Panel –II (constituted by and functioning under the Central Board of Direct Taxes and exercising powers under section 144C of the Income Tax Act) in the case of NDTV Ltd pertaining to the assessment year 2009-2010 has examined the evidence and issued two findings that establish that General Electric Company used a subsidiary of NBC Universal to launder money and transfer bribes to Indian politicians/ policymakers/ decision makers between 2008-2010 and used NDTV Ltd as a conduit for these bribes and to launder these bribes and hold them for the intended recipient.
Important observations, findings and rulings of the Dispute Resolution Panel –II (DRP) in the case of New Delhi Television Limited (assessee) for the assessment year 2009-2010 as recorded in its order dated 31.12.2013.
Issue of “sham” share transaction between an NDTV subsidiary and an NBCU subsidiary which resulted in the transfer of Rs. 584.46 Crores to NDTV from NBCU between 2008 and 2009
In 2008-2009, Universal Studios BV (Netherlands), a 100% subsidiary of NBC Universal Inc (United States), which in turn at that time was under the ownership and control of General Electric Company, indirectly acquired shares of NDTV Network Plc UK by purchasing shares of NNIH Netherlands. These shares were acquired for INR 642 Crores and were sold back to NDTV Networks BV, Netherlands for INR 58 Crores in the next financial year.
The AO found that “The effect of the above transaction was money introduced in the books of subsidiaries of the assessee and booking of loss in the hands of Universal Studios BV Netherland. By selling the shares in the very next year NBC Universal Inc. (which at that time was owned by General Electric Company, USA ) has booked a loss of Rs. 584.46 Crores and assessee has introduced Rs, 642.54 Crores”.
The DRP further relied upon the remand report of the AO which noted that no confirmation from NBCU regarding the transaction had been filed. The AO further noted that the share transaction was not a normal transaction and lacked commercial purpose or economic substance and that there is a “serious shadow on the genuineness of the impugned transaction”.
In paragraph 2.3.11.1 of its order, the DRP has recorded its finding that there was no commercial purpose or economic substance to the transaction for NBCU in subscribing to the shares of a company whose shares had a face value of only Rs 40-50 per shares, which was making losses, whose book value of shares was in the negative, which was only an investment company, having no business of its own, having been recently formed, with no proven performance record, and which was actually liquidated within 3 ½ years of the transaction. An investment of Rs 642.5 Crores could only be made with a view to earn profits. Yet no independent valuation of shares was carried out by NBCU either at the time of purchase or at the time of exit (barely a year later) when the shares were sold back by NBCU to NDTV for Rs 58 Crores. The DRP records a finding that “The only purpose apparent from the transaction is to create a loss of Rs. 584.46 Crores for NBCU and to bring the taxable income of the assessee amounting to Rs 642.54 Crores, earned from undisclosed sources, into the books of accounts of the assessee through its subsidiaries”. The DRP has reached a finding that therefore the transaction is a sham transaction and requires the lifting of the corporate veil.
In paragraph 2.3.11.2, the DRP has recorded that: “Once we lift the corporate veil in the context of the impugned transaction in the present case, the clear facts emerging regarding the transaction reveal that the transaction is engineered to result in claim of loss to NBCU and corresponding routing of the assessee’s own undisclosed money through its subsidiary”.
In paragraph 2.3.16.3, the DRP has recorded that “the explanation given by the assessee about the nature and source of this money is neither satisfactory nor tenable”.
In conclusion, the DRP has recorded in paragraph 2.3.17.1 that: “In view of the above facts and circumstances of the case, involving the round tripping involving such huge variations in the rates without any basis or valuation, the transaction lacks economic purpose and commercial substance and necessitates the piercing of corporate veil. It is therefore submitted that the amount of Rs. 642, 54, 22, 000/- represents the assessee’s own taxable income earned by it from undisclosed sources and the same is taxable u/s 69A.”
The DRP has recorded that the Assessing Officer (AO) recorded a finding that NDTV failed to disclose vital information (even after issuance of summons and notices specifically requesting information) about the transactions of its subsidiaries in its audited accounts. Disclosures required by SEBI under NDTV’s listing agreement with the stock exchange were not made. The AO therefore issued a show-cause notice to NDTV asking why its books of accounts should not be rejected and resort made to Section 144 of the Income Tax act.
Paragraphs 5.6 and 5.7 of the DRP order note the conclusions of the Assessing Officer (AO).
The AO concluded that “This subscription of shares of the assessee’s group company, having face value of Rs. 40-45 per share (equivalent to 1 $ in INR) by NBCU @ Rs. 7,015.05 per share and its subsequent sale back to the assessee’s another group company @ Rs. 634.17 per share, is therefore a sham transaction and it is a fit case, which requires the lifting of the corporate veil”. According to the AO, the arrangement had “neither commercial purpose nor any economic substance but was only for tax evasion” and that it was a “sham, colourable or bogus transaction with the pretence of commercial or corporate trading”. The AO further found that NDTV was in ownership and control of this “unexplained” money which was not recorded in the books of the assessee and therefore concluded that the money be added to NDTV’s income under section 69A of the Income Tax Act. The AO found support for her conclusions in the following: (i) the sale and buyback of shares occurred within a short span; (ii) Neither the buyer nor the seller had done any valuation of the shares from an independent valuer and the price for the shares was stated to be negotiated by the buyer and the seller based upon the proposed business potential and business forecast and projections; (iii) NDTV Ltd did not disclose the amount of Rs 642.5 Crores received by its subsidiary under this transaction, even though it was required to disclose this amount under both law and accounting standards. The AO noted that at the fag end of the limitation period, NDTV disclosed that this amount was received by a subsidiary and that this was deliberately done to “avoid further scrutiny regarding the identity and creditworthiness of the share subscriber and genuineness of the transactions”. The AO also noted that “Subscription to the shares of the subsidiary company of the assessee without determining any valuation for the same and receiving funds by a foreign party raises suspicion regarding the true nature of the transactions”.
The AO further relied upon the following:
(i) Neither NNIH nor NNPLC had any business activities.
(ii) NNIH was a holding company and NNPLC was incorporated to promote the interest of NNIH and other group companies. NNPLC had no business activity, no fixed assets and paid no rent. It had no presence in the UK apart from its incorporation there. NNPLC’s address in the UK was that of a company secretary dealing with its tax matters. The authorised capital of NNPLC was only about Rs. 46 lacs. It had declared a loss of Rs 8.67 Crores for the financial year ending 31.03.2009.
(iii) The value of NNIH’s shares at the time of the transaction was around 1$ (approx. Rs 40-50) per share yet these shares were sold at the rate of Rs. 7015.05 per share to Universal Studios BV Netherlands.
(iv) These shares were bought back by one of the step up subsidiaries of NNIH (the step down subsidiary of the assessee), i.e., by NDTV Networks BV, Netherlands for Rs 634.17 per share in the financial year 2009-2010.
The DRP noted that NDTV has its operation mainly in India and the proposed ventures of NDTV Labs etc were also located in India and that “It is not possible to fathom out the intention of the assessee or the business rationale to float the companies in Netherlands to indulge in such complex and layered transactions. This is the precise kind of holding structures which are the subject matter of the BEPS (OECD and G 20 Project against Base Erosion and Profit Shifting) Project”.
The DRP has therefore agreed with the AO that the corporate veil needs to be pierced in this case.
As of 2009, NDTV had 21 subsidiaries with many of them located in tax havens (low or no tax jurisdictions) and some of these subsidiaries were incorporated and liquidated by the promoters at frequent intervals. Some of these subsidiaries and their holding structure are described at page 3 of the DRP order dated 31 December 2013.
NNPLC was incorporated in the UK by NDTV in November 2006 as its 100% subsidiary. NNPLC was incorporated on 30.11.2006 with a meagre share capital of Rs. 40 lacs only and was liquidated on 20.10.2011. NNBV was incorporated in the Netherlands by NDTV in December 2006 and NNPLC became a subsidiary of NNBV at that time.
In paragraph 2.1.18 the DRP records that even though the stated purpose of NNPL was “to create new business areas for NDTV as well as to unlock value of existing operations and skills”, however, NNPLC did not carry on any business activities on its own. The DRP records that between its incorporation and liquidation, the only activities of NNPLC were the following:
(i) In 2007-2008, NNPLC raised USD 100 million through Step Up Convertible Coupon Bonds.
(ii) In 2008-2009, NNPLC transferred 26% of its stake to NBCU for Rs. 642.54 Crores by way of issue of subscription equity of its parent company, NNIH (the Netherlands ).
(iii) In 2009-2010, NDTV through its subsidiary NDTV Networks BV repurchased 26% indirect stake held by NBCU in NNPLC.
(iv) In 2009-2010, NNPLC repurchased USD 100 million Step Up Coupon Convertible Bonds issued by it earlier
In paragraph 2.1.19, the DRP records that: “… the inevitable conclusion is that NNPLC was a Special Purpose Vehicle (SPV) created by NDTV, which acted as agent of NDTV for the purposes of NDTV and was liquidated as soon as it had outlived the purpose of its creation”.
In paragraph 2.1.20, the DRP holds: “In the case of Adams vs Cape Industries Plc [(1990) 2 WLR 6578], it was held that one of the three circumstances in which the corporate veil may be lifted would be in a situation, where the subsidiary is an agent of the company. In the present case, the situation is the same and the business affairs of the holding company NDTV and the subsidiary NNPLC are so intertwined that it is not only permissible but necessary to lift the corporate veil. The intertwining is evident from the fact that NNPLC carried out only two major transactions during its existence – the 1st transaction was to raise USD 100 million through Step Up Coupon Convertible Bonds, which was possible only due to undertaking for corporate guarantee offered by NDTV and NDTV was a party to the agreement along with NNPLC and the 2nd transaction was the indirect transfer of 26% of its stake to NBCU by way of subscription in equity of parent company NNIH, in which again, NDTV was a party to the Agreement along with NNPLC. In both transactions, it was NDTV which dictated the terms and in neither of the two transactions, NNPLC acted independently. Under these circumstances, it is evident that NNPLC is a mere façade entity on behalf of NDTV; and without prejudice to this, NNPLC is beyond doubt an agent of NDTV”.
In paragraph 5.16, the DRP has held that: “The totality of the transaction clearly leads to the inescapable conclusion that the entire transaction of sale & subsequent buyback of shares was a “sham” entered into by the assessee with the sole motive of introducing Rs, 642,54,22,000/ - in its books and providing loss of Rs. 584.46 Crores to Universal Studios BV Netherlands.”
In paragraph 5.16.1, the DRP has held that: “ .. it is held that the assessee has brought an amount of Rs. 642,54,22,000/ - being unexplained money into its books through its subsidiary NDTV Networks BV Netherlands. It is pertinent to mention that, as per the admission of the assessee the above subsidiary has been subsequently liquidated, which shows that the same was floated only to create a front for introducing the above amount”.
Issue of unsecured loan for Rs. 254.75 Crores transferred to an NDTV subsidiary from a subsidiary of NBCU in 2009-2010 which has been found to be a non-genuine transaction by the AO and the DRP
In paragraph 5.17, the DRP order reproduces the AO’s letter dated 20 August 2013, where the AO has stated: “Another issue involved in the case is that during the year, the assessee company, through its guarantees, raised an amount of Rs. 365,25,00,000/ - as unsecured loans through its subsidiary NNPLC. As the information was stated to be furnished by the assessee on 30.03.2013, i.e. just one day before the expiry of limitation, therefore, this aspect could also not be probed by the AO as to the identity of the payers, the creditworthiness of the payers and the genuineness of the transactions”.
The remand report of the AO dated 11.12.2013 has examined the “Tax implications of unsecured loans amounting to Rs. 365.25 Crores received by NDTV through its subsidiary NNPLC”.
The AO sought further information from NDTV including documentary evidence regarding this unsecured loan of Rs. 365.25 Crores received by NNPLC by letter dated 11.11.2013 to which NDTV sent a misleading response dated 26.11.2013 (reproduced in the DRP order in paragraph 2.4.3.
NDTV was confronted by its misleading and evasive lies on this issue of the unsecured loan by the AO by letter dated 5.12.2013 (reproduced in paragraph 2.4.4 of the DRP order).
NDTV sent another response dated 10.12.2013 and the AO found yet again that NDTV had failed to discharge the onus cast upon it.
The remand report of the AO proposed that the amount of Rs. 254.75 Crores be added to the assessee’s income for that year. NDTV provided an alternative explanation for Rs. 110.5 Crores.
The DRP order records in paragraph 5.19 that: “The copy of the remand report was given to the assessee on 16.12.2013 to submit its rejoinder and on the day of hearing i.e., on 17.12.2013 they were asked to treat the forwarding letter of the DRP enclosing the remand report as enhancement notice by DRP to cut short the time as the matter is getting time barred on 31.12.2013. The same was recorded in the order sheet vide entry dated 17.12.2013.”
For the first time on 23.12.2013, NDTV by a letter produced before the DRP a document purported to be a loan agreement dated 10.11.2008 between Universal Studios international BV (a subsidiary of NBCU and therefore of General Electric Company at the relevant time) on the one hand and between NDTV Ltd, NDTV PLC, and NDTV Networks BV on the other hand. NDTV claimed in this letter that they had been unable to produce this document earlier as the issue had come up for the first time before the DRP, and because the AO had not specifically asked for the loan agreement (both these assertions are factually incorrect).
The DRP handed over the copy of this purported loan agreement to the AO for his response, and the AO placed a response dated 26.12.2013 before the DRP addressing this loan agreement.
NDTV’s letter dated 23.12.2013 also stated that a confirmation of this loan transaction from Universal Studios International BV was also attached. The AO response however noted that though the attached confirmation by Universal Studios International BV mentions a bank account in BNP Paribas and states that the copy of the bank certificate is attached, yet no bank certificate was actually attached.
The AO has further noted in its response that copies of documents provided were mere photocopies and not subject to any verification or enquiries and held that the assessee had failed to discharge the onus of proving the identity of the lender, creditworthiness of the lender and the genuineness of the transaction.
The DRP in paragraph 5.23 of its order has noted that “From a bare perusal of the so called agreement copy by the DRP, it is found that the above loan is advanced without any interest, the reason for which has not been explained. The amount involved is quite a large sum of money. Further, as per this document, the interest free credit facility was to be granted on the basis of a duly completed utilization request, where as no such utilisation request or basis for seeking the above credit facility has been produced by the assessee before the AO or before the DRP. We are therefore in agreement with the AO’s finding that the onus of proving the genuineness of the loan transaction has not been discharged by the assessee. The AO is, therefore, directed to make addition of Rs. 254.75 Crores.”
It is pointed out that this loan does not appear to have been repaid by NDTV/ its subsidiary to NBCU/ Universal Studios BV (Netherlands ).
The DRP order dated 31 December 2013 has directed the AO to complete the assessment according to the directions issued by the DRP in its order.
The DRP order dated 31 December 2013 issued in respect of NDTV Ltd for the assessment year 2009-2010 therefore prima facie establishes that between 2008 and 2009-2010, a subsidiary of General Electric Company entered into sham and non-genuine transactions with shell subsidiaries of NDTV Ltd which resulted in a transfer of Rs. 839.21 Crores to NDTV and which had no discernable commercial purpose or economic substance other than to result in the transfer of this money from General Electric Company/ NBC Universal to NDTV Ltd.
The DRP order dated 31 December 2013 (which is an order of a Civil Court) has therefore arrived at binding findings/ conclusions that subsidiaries of NDTV Ltd and NBCU engaged in money laundering in 2008 and 2009 by entering into sham transactions for issue/ transfer of shares and for transfer of an unsecured loan, both of which resulted in a net transfer of unaccounted money amounting to Rs. 839.21 Crores from NBCU to NDTV Ltd. NBCU was at the relevant time owned and controlled by General Electric Company and therefore this money laundering was carried out by General Electric Company using NBCU. This much is already established by the DRP order dated 31 December 2013 itself.
Since a company owned and controlled by General Electric Company was used in these illegal and sham transactions amounting to money laundering, it must be concluded that General Electric Company had an interest in these illegal transactions. General Electric Company/ NBCU would not participate in laundering someone else’s money for someone else’s benefit. Further investigation into these transactions will therefore establish the exact interest of General Electric Company in using a group company to carry out these illegal transactions. The only possible reason for General Electric Company to use a group company to participate in these illegal transactions would be that these transactions were used to transfer bribes for and on behalf of General Electric Company to Indian politicians/ decision-makers/ policy-makers in exchange for favours rendered to General Electric Company to cause financial gain to General Electric at the cost of the Indian public exchequer.
Here are the possible reasons for General Electric Company to have transferred these bribes:
(i) The deals favouring General Electric agreed to/ permitted by the Government of India relating to the Dabhol power project which caused financial gain to General Electric and financial loss to the Indian public exchequer and to Indian public sector firms and Indian public sector banks, and which facilitated the cover up of the corrupt dealings connected to this Project.
(ii) The nuclear deal signed by the UPA government which damaged Indian national interest and which was signed to permit the sale of nuclear power plants to India by General Electric for commercial gain.
(iii) Kickbacks paid to Indian legislators to purchase votes for the nuclear deal related vote of no-confidence in the Indian Parliament.
(iv) The high value General Electric aircraft engine deal for the HAL TEJAS aircraft agreed to by the Indian Government after efforts to develop an indigenous aircraft engine were sabotaged.
(v) The high value General Electric aircraft engine deal with Air India for exclusive use of General Electric engines in the Boeing aircraft purchased by Air India .
(vi) The Project, tenders and contract for the diesel locomotive factory at Marhowra, impugned by the undersigned in Writ Petition Civil 1280 of 2012 pending in the Delhi High Court.
Further investigations are required into the illegal transactions between NBCU and NDTV described in the DRP order dated 31 December 2013. Since these transactions involve legal entities incorporated in India , the United States , the United Kingdom , and the Netherlands besides other tax havens including the Cayman Islands , the authorities in all these jurisdictions including the European Union must launch fraud, criminal, and revenue investigations into these illegal and sham transactions between NDTV Ltd and NBC Universal/ General Electric Company.
However even without such further investigations, the DRP order dated 31 December 2013 has conclusively held that subsidiaries of NBCU and NDTV Ltd engaged in money laundering activities in 2008 and 2009 using sham and non-genuine transactions with the sole intent and purpose to move unaccounted for money from NBCU to NDTV Ltd and to defraud India revenue and in violation of Indian laws including the Prevention of Money Laundering Act and the Foreign Exchange Management Act. This finding by a Civil Court
The effect of the DRP order dated 31 December 2013 would also be that the declarations/ disclosures made by General Electric Company and/ or its Associates in connection with any contracts/ tenders as required by the guidelines dated 31 July 2001 issued by Department of Disinvestment, Government of India would no longer be true and correct or compliant with these guidelines.
By virtue of the DRP order dated 31 December 2013, wherein a finding of money laundering has been recorded against an associate firm (subsidiary) of General Electric Company, General Electric Company and all its associate firms automatically stand disqualified to participate in Indian Government contracts and tenders to which the said guidelines dated 31 July 2001 apply.
The Government of India must therefore take steps to disqualify and blacklist General Electric Company and its subsidiaries from all contracts and government tenders in India, including the current Global tenders for the Projects for the proposed diesel and electric locomotive factories at Marhowra and Madhepura respectively (being Global RFQ No. 2013/M(W)/964/33 dated May 2013 and Global RFQ No. 2013/ Elect. (Dev)/440/7 dated 6 May 2013 issued by the Ministry of Railways, Government of India for the diesel and electric locomotive factory Projects respectively).
The undersigned who is the petitioner in person in Writ Petition Civil 1280/ 2012 (in the matter of Seema Sapra vs General Electric Company and Others) which raises complaints of corruption, fraud, forgery, bribery, illegal lobbying etc against General Electric Company and its subsidiaries/ agents in connection with the Projects/ Tenders/ Contracts for the diesel and locomotive factory Projects, has in that matter also moved Civil Miscellaneous Application 7197 of 2013 seeking the following relief:
(a) Stay the decision of the Cabinet dated 1 May 2013 to cancel the impugned tenders and to issue new RFQs and RFPs for the ELF and DLF Projects or to proceed with the new Bidding Process for these Projects until this writ petition is heard and finally decided and until the complaints made in this writ petition are dealt with in accordance with law;
(b) Injunct/ restrain respondents 4 and 5 (Railway Ministry and the Union of India through the PMO) from proceeding further with the bid process under the two RFQs issued on 6 May 2013 (Global RFQ No. 2013/M/ (W)/ 964/33 dated May, 2013, and Global RFQ No. 2013/Elect (Dev)/440/7 dated 6 May, 2013) until this writ petition is heard and finally decided;
(c) Injunct/ restrain respondents 4 and 5 (Railway Ministry and the Union of India through the PMO) from issuing the RFQ documents for DLF and ELF (for Global RFQ No. 2013/M/ (W)/ 964/33 dated May, 2013, and for Global RFQ No. 2013/Elect (Dev)/440/7 dated 6 May, 2013) to General Electric Company, or to GE India Industrial Private Limited, or to GE Global Sourcing India Private Limited or to any of their associate companies and/or from receiving applications for prequalification under these RFQs from any of these companies or their associates until this writ petition is heard and finally decided;
(d) Injunct/ restrain respondents 4 and 5 (Railway Ministry and the Union of India through the PMO) from short-listing General Electric Company or GE India Industrial Private Limited, or GE Global Sourcing India Private Limited or any of their associate companies under Global RFQ No. 2013/M/ (W)/ 964/33 dated May, 2013, and Global RFQ No. 2013/Elect (Dev)/440/7 dated 6 May, 2013 until this writ petition is heard and finally decided;
(e) Direct the PMO and the Railway Ministry to file separate affidavits (through the Principal Secretary, PMO and the Chairman of the Railway Board respectively) answering the questions raised in this application;
(f) Direct the Railway Ministry to blacklist General Electric Company, GE India Industrial Private Limited, GE Global Sourcing India Private Limited and all and any of their associate companies from participation in any Railway Tenders including (Global RFQ No. 2013/M/ (W)/ 964/33 dated May, 2013, and Global RFQ No. 2013/Elect (Dev)/440/7 dated 6 May, 2013) for a minimum period of two years;
In CM 7197 of 2013 the petitioner has pointed out that the decision of the Government of India to cancel the 2010 tenders for these Projects (which were impugned in WP Civil 1280 of 2012) during the pendency of that writ petition and without considering the complaints of corruption, fraud, bribery, forgery and illegal lobbying pertaining to these tenders and Projects which are the subject matter of WP Civil 1280 of 2012, was nothing but a colorable, malafide and fraudulent exercise of power to cover up these complaints against General Electric, to avoid having to disqualify and blacklist General Electric, to sabotage the hearing of WP Civil 1280 of 2012, to over-reach the Delhi High Court, and to prevent the Delhi High court from deciding that matter on merits.
CM 7197 of 2013 also points out that several other prayers made in Writ Petition Civil 1280 of 2012 survive despite this fraudulent attempt by the Government of India to over-reach the Delhi High Court, and to sabotage the hearing of WP Civil 1280 of 2012 with intent to cover up the corruption complaints against General Electric Company.
The prayers made in WP Civil 1280 of 2012 are as follows:
1. Summon the records of Respondent Nos. 2, 4 and 5 on the whistle-blower complaints made by the Petitioner and after examining the records and hearing the Respondents, issue a writ of mandamus to Respondent 4 directing that Respondent 7 be disqualified and Respondent Nos. 1, 6 and 7 be black-listed from the Diesel and Electric Locomotive Tenders (Global RFQ No. 2010/ ME (Proj)/ 4/ Marhoura/RFQ and RFQ No. 2010/ Elect. (Dev0 440/1(1)).
2. Issue writs of mandamus to Respondent Nos. 2, 4 and 5 directing them to respond to and act upon the said whistle-blower complaints in accordance with law.
3. Direct that Respondent No. 2 inquire into the commission of criminal offences (including forgery, bribery and public corruption) arising out of the Petitioner’s whistle-blower complaints and direct prosecution of GE employees and government officials and public servants found involved and complicit.
4. Enforce and protect the right to life of the Petitioner and direct that the Petitioner be provided full protection and safety and be immediately relocated to a safe house.
The DRP order can be read at http://seemasapra.blogspot.in/2014/03/did-general-electric-transfer-bribes-to.html
This is the reason why honest IRS officer S K Srivastava (the whistleblower who exposed this money laundering by NDTV) has been targeted and victimized including by a group of corrupt Delhi High Court judges and lawyers. Mr S K Srivastava has also been subjected to psychiatric abuse.
A copy of my curriculum vitae is attached.
Seema Sapra
Lawyer enrolled with the Bar Council of Delhi
This was emailed as below:
---------- Forwarded message ----------
From: Seema Sapra <seema.sapra@googlemail.com>
Date: Wed, Mar 5, 2014 at 4:11 PM
Subject: Complaint of money laundering against General Electric Company from - Seema Sapra - Petitioner in Writ Petition (Civil) 1280/ 2012 - in the matter of Seema Sapra v. General Electric Company and Others in the Delhi High Court
To: lggc.delhi@nic.in, "rg.dhc@nic.in" <rg.dhc@nic.in>, Bhim Sain Bassi <cp.bsbassi@nic.in>, joe.kaeser@siemens.com, dch@nic.in, secypc@nic.in, "splcp-admin-dl@nic.in" <splcp-admin-dl@nic.in>, "splcp-intandops-dl@nic.in" <splcp-intandops-dl@nic.in>, "splcp-antiriotcell-dl@nic.in" <splcp-antiriotcell-dl@nic.in>, "splcp-security-dl@nic.in" <splcp-security-dl@nic.in>, "splcp-vigilance-dl@nic.in" <splcp-vigilance-dl@nic.in>, "splcp-crime-dl@nic.in" <splcp-crime-dl@nic.in>, "splcp-armed-dl@nic.in" <splcp-armed-dl@nic.in>, "splcp-operation-dl@nic.in" <splcp-operation-dl@nic.in>, "splcp-traffic-dl@nic.in" <splcp-traffic-dl@nic.in>, "splcp-pl-dl@nic.in" <splcp-pl-dl@nic.in>, splcp-trg-dl@nic.in, "splcp-splcell-dl@nic.in" <splcp-splcell-dl@nic.in>, jtcp-cr-dl@nic.in, "jtcp-nr-dl@nic.in" <jtcp-nr-dl@nic.in>, jtcp-ser-dl@nic.in, jtcp-swr-dl@nic.in, "splcp-pandi-dl@nic.in" <splcp-pandi-dl@nic.in>, jtcp-training-dl@nic.in, "jtcp-phq-dl@nic.in" <jtcp-phq-dl@nic.in>, jtcp-ga-dl@nic.in, 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"re-india.commerce@international.gc.ca" <re-india.commerce@international.gc.ca>, "info@new-delhi.diplo.de" <info@new-delhi.diplo.de>, Ambassaden New Delhi <ambassaden.new-delhi@foreign.ministry.se>, "delamb@um.dk" <delamb@um.dk>, "emb.newdelhi@mfa.no" <emb.newdelhi@mfa.no>, "chinaemb_in@mfa.gov.cn" <chinaemb_in@mfa.gov.cn>, "InfoDesk@ohchr.org" <InfoDesk@ohchr.org>, "Press-Info@ohchr.org" <Press-Info@ohchr.org>, "civilsociety@ohchr.org" <civilsociety@ohchr.org>, "nationalinstitutions@ohchr.org" <nationalinstitutions@ohchr.org>, "webmaster@ambafrance-in.org" <webmaster@ambafrance-in.org>, "info_visa_delhi@ambafrance-in.org" <info_visa_delhi@ambafrance-in.org>, "VA@ndh.rep.admin.ch" <VA@ndh.rep.admin.ch>, "indne@unhcr.org" <indne@unhcr.org>, "ambasciata.newdelhi@esteri.it" <ambasciata.newdelhi@esteri.it>, "chinaconsul_kkt@mfa.gov.cn" <chinaconsul_kkt@mfa.gov.cn>, "chinaconsul_mum_in@mfa.gov.cn" <chinaconsul_mum_in@mfa.gov.cn>, "webmaster@mfa.gov.cn" <webmaster@mfa.gov.cn>, "in@mofcom.gov.cn" <in@mofcom.gov.cn>, "advocatesapnachauhan@yahoo.com" <advocatesapnachauhan@yahoo.com>, "sapnachauhan.chauhan192@gmail.com" <sapnachauhan.chauhan192@gmail.com>, "dcbi@cbi.gov.in" <dcbi@cbi.gov.in>, Manpreet Lamba <manpreet.lamba@azbpartners.com>, "mr@rb.railnet.gov.in" <mr@rb.railnet.gov.in>, "msrk@rb.railnet.gov.in" <msrk@rb.railnet.gov.in>, "edpgmsrk@rb.railnet.gov.in" <edpgmsrk@rb.railnet.gov.in>, "msrb@rb.railnet.gov.in" <msrb@rb.railnet.gov.in>, "crb@rb.railnet.gov.in" <crb@rb.railnet.gov.in>, "srppscrb@rb.railnet.gov.in" <srppscrb@rb.railnet.gov.in>, "osdpri@rb.railnet.gov.in" <osdpri@rb.railnet.gov.in>, "dsconf@rb.railnet.gov.in" <dsconf@rb.railnet.gov.in>, "fc@rb.railnet.gov.in" <fc@rb.railnet.gov.in>, "ppsfc@rb.railnet.gov.in" <ppsfc@rb.railnet.gov.in>, "edfc@rb.railnet.gov.in" <edfc@rb.railnet.gov.in>, "ml@rb.railnet.gov.in" <ml@rb.railnet.gov.in>, "ppsml@rb.railnet.gov.in" <ppsml@rb.railnet.gov.in>, "psml@rb.railnet.gov.in" <psml@rb.railnet.gov.in>, "osdml@rb.railnet.gov.in" <osdml@rb.railnet.gov.in>, "me@rb.railnet.gov.in" <me@rb.railnet.gov.in>, "ppsme@rb.railnet.gov.in" <ppsme@rb.railnet.gov.in>, "osdme@rb.railnet.gov.in" <osdme@rb.railnet.gov.in>, "mm@rb.railnet.gov.in" <mm@rb.railnet.gov.in>, "ms@rb.railnet.gov.in" <ms@rb.railnet.gov.in>, "ppsms@rb.railnet.gov.in" <ppsms@rb.railnet.gov.in>, "dpc1@rb.railnet.gov.in" <dpc1@rb.railnet.gov.in>, "mt@rb.railnet.gov.in" <mt@rb.railnet.gov.in>, "srppsmt@rb.railnet.gov.in" <srppsmt@rb.railnet.gov.in>, "ppsmt@rb.railnet.gov.in" <ppsmt@rb.railnet.gov.in>, "dtcord@rb.railnet.gov.in" <dtcord@rb.railnet.gov.in>, "secyrb@rb.railnet.gov.in" <secyrb@rb.railnet.gov.in>, "pssecyrb@rb.railnet.gov.in" <pssecyrb@rb.railnet.gov.in>, "dgrhs@rb.railnet.gov.in" <dgrhs@rb.railnet.gov.in>, "ppsdgrhs@rb.railnet.gov.in" <ppsdgrhs@rb.railnet.gov.in>, "dgrpf@rb.railnet.gov.in" <dgrpf@rb.railnet.gov.in>, "srppsdgrpf@rb.railnet.gov.in" <srppsdgrpf@rb.railnet.gov.in>, "edcc@rb.railnet.gov.in" <edcc@rb.railnet.gov.in>, "aml@rb.railnet.gov.in" <aml@rb.railnet.gov.in>, "legaladv@rb.railnet.gov.in" <legaladv@rb.railnet.gov.in>, "amm@rb.railnet.gov.in" <amm@rb.railnet.gov.in>, "amplg@rb.railnet.gov.in" <amplg@rb.railnet.gov.in>, "r_s_chidambaram@cat.com" <r_s_chidambaram@cat.com>, "sunand.sharma@alstom.com" <sunand.sharma@alstom.com>, "hiren.vyas@alstom.com" <hiren.vyas@alstom.com>, "vandana.dhir@alstom.com" <vandana.dhir@alstom.com>, "jojo.alexander@alstom.com" <jojo.alexander@alstom.com>, "patrick.ledermann@alstom.com" <patrick.ledermann@alstom.com>, "rathin.basu@alstom.com" <rathin.basu@alstom.com>, "Dimitrief, Alexander (GE, Corporate)" <alexander.dimitrief@ge.com>, "Eglash, Jeffrey C (GE, Corporate)" <jeffrey.eglash@ge.com>, Nanju Ganpathy <nanju.ganpathy@azbpartners.com>, "bradford.berenson@ge.com" <bradford.berenson@ge.com>, "brackett.denniston@ge.com" <brackett.denniston@ge.com>, "jeffrey.immelt@ge.com" <jeffrey.immelt@ge.com>, "john.flannery@ge.com" <john.flannery@ge.com>, "delhihighcourt@nic.in" <delhihighcourt@nic.in>, "pmosb@nic.in" <pmosb@nic.in>, "askdoj@usdoj.gov" <askdoj@usdoj.gov>, "CHAIRMANOFFICE@SEC.GOV" <CHAIRMANOFFICE@sec.gov>, "help@sec.gov" <help@sec.gov>, "fcpa.fraud@usdoj.gov" <fcpa.fraud@usdoj.gov>, "radhakrishnan.k@ge.com" <radhakrishnan.k@ge.com>, "tejal.singh@ge.com" <tejal.singh@ge.com>, Sonali Mathur <sonali.mathur@azbpartners.com>, eric.holder@usdoj.gov, "preet.bharara@usdoj.gov" <preet.bharara@usdoj.gov>, "NDwebmail@state.gov" <NDwebmail@state.gov>, "Denise_L._Cote@nysd.uscourts.gov" <Denise_L._Cote@nysd.uscourts.gov>, "ruby_krajick@nysd.uscourts.gov" <ruby_krajick@nysd.uscourts.gov>, "Leonard_B._Sand@nysd.uscourts.gov" <Leonard_B._Sand@nysd.uscourts.gov>, "gloria_rojas@nysd.uscourts.gov" <gloria_rojas@nysd.uscourts.gov>, "william_donald@nysd.uscourts.gov" <william_donald@nysd.uscourts.gov>, "edward_friedland@nysd.uscourts.gov" <edward_friedland@nysd.uscourts.gov>, "richard_wilson@nysd.uscourts.gov" <richard_wilson@nysd.uscourts.gov>, "robert_rogers@nysd.uscourts.gov" <robert_rogers@nysd.uscourts.gov>, "kdonovan-maher@bermandevalerio.com" <kdonovan-maher@bermandevalerio.com>, "rcohen@lowey.com" <rcohen@lowey.com>, "ffetf@usdoj.gov" <ffetf@usdoj.gov>, "Harold_Baer@nysd.uscourts.gov" <Harold_Baer@nysd.uscourts.gov>, "Jed_S._Rakoff@nysd.uscourts.gov" <Jed_S._Rakoff@nysd.uscourts.gov>, "Cathy_Seibel@nysd.uscourts.gov" <Cathy_Seibel@nysd.uscourts.gov>, "Victor_Marrero@nysd.uscourts.gov" <Victor_Marrero@nysd.uscourts.gov>, "fja@federaljudgesassoc.org" <fja@federaljudgesassoc.org>, "supremecourt@nic.in" <supremecourt@nic.in>, "Loretta_A._Preska@nysd.uscourts.gov" <Loretta_A._Preska@nysd.uscourts.gov>, "Ronald J. Keating" <RKeating@bermandevalerio.com>, jtabacco@bermandevalerio.com, bhart@lowey.com, rharwood@hfesq.com, Joseph Guglielmo <jguglielmo@scott-scott.com>, drscott@scott-scott.com, "ombudsperson@corporate.ge.com" <ombudsperson@corporate.ge.com>, Directors@corporate.ge.com, Siemens Ombudsman COM <mail@siemens-ombudsman.com>, Sunder.Venkat@aero.bombardier.com, compliance.office@bombardier.com, nilesh.pattanayak@aero.bombardier.com, pierre.beaudoin@bombardier.com, djohnson@mccarthy.ca, douglas.oberhelman@caterpilllar.com, william.ainsworth@caterpillar.com, CATshareservices@cat.com, BusinessPractices@cat.com, patrick.kron@alstom.com, keith.carr@alstom.com, Jean-David.barnea@usdoj.gov, reed.brodsky@usdoj.gov, andrew.michaelson@usdoj.gov, ellen.davis@usdoj.gov, eric.glover@usdoj.gov, paul.murphy@usdoj.gov, sandra.glover@usdoj.gov, robert.spector@usdoj.gov, christopher.connolly@usdoj.gov, joseph.cordaro@usdoj.gov, david.jones6@usdoj.gov, daniel.filor@usdoj.gov, amy.barcelo@usdoj.gov, christopher.harwood@usdoj.gov, michael.byars@usdoj.gov, benjamin.torrance@usdoj.gov, sarah.normand@usdoj.gov, elizabeth.shapiro@usdoj.gov, alicia.simmons@usdoj.gov, joyce.vance@usdoj.gov, kenyen.brown@usdoj.gov, karen.loeffler@usdoj.gov, andre.birotte@usdoj.gov, melinda.haag@usdoj.gov, laura.duffy@usdoj.gov, john.walsh@usdoj.gov, david.weiss@usdoj.gov, ronald.machen@usdoj.gov, robert.o'neill@usdoj.gov, pamela.marsh@usdoj.gov, wifredo.ferrer@usdoj.gov, michael.moore@usdoj.gov, sally yates <sally.yates@usdoj.gov>, edward.tarver@usdoj.gov, alicia.limtiaco@usdoj.gov, florence.nakakuni@usdoj.gov, wendy.olson@usdoj.gov, james.lewis@usdoj.gov, patrick.fitzgerald@usdoj.gov, stephen.wigginton@usdoj.gov, david.capp@usdoj.gov, joseph.hogsett@usdoj.gov, stephanie.rose@usdoj.gov, nick.klinefeldt@usdoj.gov, kerry.harvey@usdoj.gov, david.hale@usdoj.gov, stephanie.finley@usdoj.gov, rod.rosenstein@usdoj.gov, carmen.ortiz@usdoj.gov, barbara.mcquade@usdoj.gov, b.todd.jones@usdoj.gov, william.martin@usdoj.gov, richard.callahan@usdoj.gov, beth.phillips@usdoj.gov, michael.cotter@usdoj.gov, deborah.gilg@usdoj.gov, daniel.bogden@usdoj.gov, john.kacavas@usdoj.gov, paul.fishman@usdoj.gov, kenneth.gonzales@usdoj.gov, loretta.lynch@usdoj.gov, richard.hartunian@usdoj.gov, william.hochul@usdoj.gov, john.stone@usdoj.gov, anne.tompkins@usdoj.gov, tim.purdon@usdoj.gov, steve.dettelbach@usdoj.gov, carter.stewart@usdoj.gov, sandy.coats@usdoj.gov, zane.memeger@usdoj.gov, peter.smith@usdoj.gov, david.hickton@usdoj.gov, peter.neronha@usdoj.gov, bill.nettles@usdoj.gov, william.killian@usdoj.gov, jerry.martin@usdoj.gov, edward.stanton@usdoj.gov, jose.moreno@usdoj.gov, carlie.christensen@usdoj.gov, tristram.coffin@usdoj.gov, ronald.sharpe@usdoj.gov, neil.macbride@usdoj.gov, timothy.heaphy@usdoj.gov, bill.ihlenfeld@usdoj.gov, booth.goodwin@usdoj.gov, james.santelle@usdoj.gov, john.vaudreuil@usdoj.gov, christopher.crofts@usdoj.gov, bprao@bhel.in, opb@bhel.in, akhatua@bhel.in, csverma@bhel.in, vpandhi@bhel.in, Atul Saraya <saraya@bhel.in>, ajay.sinha@emdiesels.com, "singhadvocate@hotmail.com" <singhadvocate@hotmail.com>, Rajeeve Mehra <mehralaw@gmail.com>, mehralaw@yahoo.co.in, lajita.rajesh@alstom.com, francois.carpentier@alstom.com, armin.bruck@siemens.com, sunil.mathur@siemens.com, benoit.martel@bombardier.com, luis.ramos@bombardier.com, harsh.dhingra@bombardier.com, glen.lehman@caterpillar.com, john.newman@caterpillar.com, peter.solmssen@siemens.com, roland.busch@siemens.com, michael.suess@siemens.com, klaus.helmrich@siemens.com, daniel.desjardins@bombardier.com, james.buda@caterpillar.com, adam.smith@emdiesels.com, glen.lehman@progressrail.com, duane.cantrell@progressrail.com, craig.johnson@caterpillar.com, alert.procedure@alstom.com, harjeetsinghsachdeva@gmail.com, "Zia Mody (zia.mody@azbpartners.com)" <zia.mody@azbpartners.com>, "Warin, F. 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Cc: Seema Sapra <seema.sapra@gmail.com>, Seema Sapra <seemasapra@hotmail.com>
Complaint of money laundering and corruption against NDTV Ltd and
General Electric Company arising out of the order dated 31.12.2013 of
the Income Tax Dispute Resolution Panel -II in the case of NDTV Ltd
pertaining to the assessment year 2009-2010
To
The President of India
The Prime Minister of India
The Chief Justice of India
The Chief Justice of the Delhi High Court
The President of the United States of America
The Attorney General of the United States of America
The Federal Bureau of Investigations, USA
The United States Department of Justice
The Securities and Exchange Commission of the United States
The United States Ambassador in New Delhi (Ms Nancy Powell)
The Central Bureau of Investigations, India
The Serious Fraud Investigation Office of the United Kingdom
Commissioner of Police for Delhi
The Central Vigilance Commissioner, Government of India
The order dated 31.12.2013 of the Dispute Resolution Panel -II
(constituted by and functioning under the Central Board of Direct
Taxes and exercising powers under section 144C of the Income Tax Act)
in the case of NDTV Ltd pertaining to the assessment year 2009-2010
has examined the evidence and issued two findings that establish that
General Electric Company used a subsidiary of NBC Universal to launder
money and transfer bribes to Indian politicians/ policymakers/
decision makers between 2008-2010 and used NDTV Ltd as a conduit for
these bribes and to launder these bribes and hold them for the
intended recipient.
Important observations, findings and rulings of the Dispute Resolution
Panel -II (DRP) in the case of New Delhi Television Limited (assessee)
for the assessment year 2009-2010 as recorded in its order dated
31.12.2013.
Issue of "sham" share transaction between an NDTV subsidiary and an
NBCU subsidiary which resulted in the transfer of Rs. 584.46 Crores
to NDTV from NBCU between 2008 and 2009
In 2008-2009, Universal Studios BV (Netherlands), a 100% subsidiary of
NBC Universal Inc (United States), which in turn at that time was
under the ownership and control of General Electric Company,
indirectly acquired shares of NDTV Network Plc UK by purchasing shares
of NNIH Netherlands. These shares were acquired for INR 642 Crores and
were sold back to NDTV Networks BV, Netherlands for INR 58 Crores in
the next financial year.
The AO found that "The effect of the above transaction was money
introduced in the books of subsidiaries of the assessee and booking of
loss in the hands of Universal Studios BV Netherland. By selling the
shares in the very next year NBC Universal Inc. (which at that time
was owned by General Electric Company, USA) has booked a loss of Rs.
584.46 Crores and assessee has introduced Rs, 642.54 Crores".
The DRP further relied upon the remand report of the AO which noted
that no confirmation from NBCU regarding the transaction had been
filed. The AO further noted that the share transaction was not a
normal transaction and lacked commercial purpose or economic substance
and that there is a "serious shadow on the genuineness of the impugned
transaction".
In paragraph 2.3.11.1 of its order, the DRP has recorded its finding
that there was no commercial purpose or economic substance to the
transaction for NBCU in subscribing to the shares of a company whose
shares had a face value of only Rs 40-50 per shares, which was making
losses, whose book value of shares was in the negative, which was only
an investment company, having no business of its own, having been
recently formed, with no proven performance record, and which was
actually liquidated within 3 1/2 years of the transaction. An investment
of Rs 642.5 Crores could only be made with a view to earn profits. Yet
no independent valuation of shares was carried out by NBCU either at
the time of purchase or at the time of exit (barely a year later) when
the shares were sold back by NBCU to NDTV for Rs 58 Crores. The DRP
records a finding that "The only purpose apparent from the transaction
is to create a loss of Rs. 584.46 Crores for NBCU and to bring the
taxable income of the assessee amounting to Rs 642.54 Crores, earned
from undisclosed sources, into the books of accounts of the assessee
through its subsidiaries". The DRP has reached a finding that
therefore the transaction is a sham transaction and requires the
lifting of the corporate veil.
In paragraph 2.3.11.2, the DRP has recorded that: "Once we lift the
corporate veil in the context of the impugned transaction in the
present case, the clear facts emerging regarding the transaction
reveal that the transaction is engineered to result in claim of loss
to NBCU and corresponding routing of the assessee's own undisclosed
money through its subsidiary".
In paragraph 2.3.16.3, the DRP has recorded that "the explanation
given by the assessee about the nature and source of this money is
neither satisfactory nor tenable".
In conclusion, the DRP has recorded in paragraph 2.3.17.1 that: "In
view of the above facts and circumstances of the case, involving the
round tripping involving such huge variations in the rates without any
basis or valuation, the transaction lacks economic purpose and
commercial substance and necessitates the piercing of corporate veil.
It is therefore submitted that the amount of Rs. 642, 54, 22, 000/-
represents the assessee's own taxable income earned by it from
undisclosed sources and the same is taxable u/s 69A."
The DRP has recorded that the Assessing Officer (AO) recorded a
finding that NDTV failed to disclose vital information (even after
issuance of summons and notices specifically requesting information)
about the transactions of its subsidiaries in its audited accounts.
Disclosures required by SEBI under NDTV's listing agreement with the
stock exchange were not made. The AO therefore issued a show-cause
notice to NDTV asking why its books of accounts should not be rejected
and resort made to Section 144 of the Income Tax act.
Paragraphs 5.6 and 5.7 of the DRP order note the conclusions of the
Assessing Officer (AO).
The AO concluded that "This subscription of shares of the assessee's
group company, having face value of Rs. 40-45 per share (equivalent to
1 $ in INR) by NBCU @ Rs. 7,015.05 per share and its subsequent sale
back to the assessee's another group company @ Rs. 634.17 per share,
is therefore a sham transaction and it is a fit case, which requires
the lifting of the corporate veil". According to the AO, the
arrangement had "neither commercial purpose nor any economic substance
but was only for tax evasion" and that it was a "sham, colourable or
bogus transaction with the pretence of commercial or corporate
trading". The AO further found that NDTV was in ownership and control
of this "unexplained" money which was not recorded in the books of the
assessee and therefore concluded that the money be added to NDTV's
income under section 69A of the Income Tax Act. The AO found support
for her conclusions in the following: (i) the sale and buyback of
shares occurred within a short span; (ii) Neither the buyer nor the
seller had done any valuation of the shares from an independent valuer
and the price for the shares was stated to be negotiated by the buyer
and the seller based upon the proposed business potential and business
forecast and projections; (iii) NDTV Ltd did not disclose the amount
of Rs 642.5 Crores received by its subsidiary under this transaction,
even though it was required to disclose this amount under both law and
accounting standards. The AO noted that at the fag end of the
limitation period, NDTV disclosed that this amount was received by a
subsidiary and that this was deliberately done to "avoid further
scrutiny regarding the identity and creditworthiness of the share
subscriber and genuineness of the transactions". The AO also noted
that "Subscription to the shares of the subsidiary company of the
assessee without determining any valuation for the same and receiving
funds by a foreign party raises suspicion regarding the true nature of
the transactions".
The AO further relied upon the following:
(i) Neither NNIH nor NNPLC had any business activities.
(ii) NNIH was a holding company and NNPLC was
incorporated to promote the interest of NNIH and other group
companies. NNPLC had no business activity, no fixed assets and paid no
rent. It had no presence in the UK apart from its incorporation there.
NNPLC's address in the UK was that of a company secretary dealing with
its tax matters. The authorised capital of NNPLC was only about Rs. 46
lacs. It had declared a loss of Rs 8.67 Crores for the financial year
ending 31.03.2009.
(iii) The value of NNIH's shares at the time of the
transaction was around 1$ (approx. Rs 40-50) per share yet these
shares were sold at the rate of Rs. 7015.05 per share to Universal
Studios BV Netherlands.
(iv) These shares were bought back by one of the step up
subsidiaries of NNIH (the step down subsidiary of the assessee), i.e.,
by NDTV Networks BV, Netherlands for Rs 634.17 per share in the
financial year 2009-2010.
The DRP noted that NDTV has its operation mainly in India and the
proposed ventures of NDTV Labs etc were also located in India and that
"It is not possible to fathom out the intention of the assessee or the
business rationale to float the companies in Netherlands to indulge in
such complex and layered transactions. This is the precise kind of
holding structures which are the subject matter of the BEPS (OECD and
G 20 Project against Base Erosion and Profit Shifting) Project".
The DRP has therefore agreed with the AO that the corporate veil needs
to be pierced in this case.
As of 2009, NDTV had 21 subsidiaries with many of them located in tax
havens (low or no tax jurisdictions) and some of these subsidiaries
were incorporated and liquidated by the promoters at frequent
intervals. Some of these subsidiaries and their holding structure are
described at page 3 of the DRP order dated 31 December 2013.
NNPLC was incorporated in the UK by NDTV in November 2006 as its 100%
subsidiary. NNPLC was incorporated on 30.11.2006 with a meagre share
capital of Rs. 40 lacs only and was liquidated on 20.10.2011. NNBV was
incorporated in the Netherlands by NDTV in December 2006 and NNPLC
became a subsidiary of NNBV at that time.
In paragraph 2.1.18 the DRP records that even though the stated
purpose of NNPL was "to create new business areas for NDTV as well as
to unlock value of existing operations and skills", however, NNPLC
did not carry on any business activities on its own. The DRP records
that between its incorporation and liquidation, the only activities of
NNPLC were the following:
(i) In 2007-2008, NNPLC raised USD 100 million through
Step Up Convertible Coupon Bonds.
(ii) In 2008-2009, NNPLC transferred 26% of its stake to
NBCU for Rs. 642.54 Crores by way of issue of subscription equity of
its parent company, NNIH (the Netherlands).
(iii) In 2009-2010, NDTV through its subsidiary NDTV
Networks BV repurchased 26% indirect stake held by NBCU in NNPLC.
(iv) In 2009-2010, NNPLC repurchased USD 100 million Step
Up Coupon Convertible Bonds issued by it earlier
In paragraph 2.1.19, the DRP records that: "... the inevitable
conclusion is that NNPLC was a Special Purpose Vehicle (SPV) created
by NDTV, which acted as agent of NDTV for the purposes of NDTV and was
liquidated as soon as it had outlived the purpose of its creation".
In paragraph 2.1.20, the DRP holds: "In the case of Adams vs Cape
Industries Plc [(1990) 2 WLR 6578], it was held that one of the three
circumstances in which the corporate veil may be lifted would be in a
situation, where the subsidiary is an agent of the company. In the
present case, the situation is the same and the business affairs of
the holding company NDTV and the subsidiary NNPLC are so intertwined
that it is not only permissible but necessary to lift the corporate
veil. The intertwining is evident from the fact that NNPLC carried out
only two major transactions during its existence - the 1st transaction
was to raise USD 100 million through Step Up Coupon Convertible Bonds,
which was possible only due to undertaking for corporate guarantee
offered by NDTV and NDTV was a party to the agreement along with NNPLC
and the 2nd transaction was the indirect transfer of 26% of its stake
to NBCU by way of subscription in equity of parent company NNIH, in
which again, NDTV was a party to the Agreement along with NNPLC. In
both transactions, it was NDTV which dictated the terms and in neither
of the two transactions, NNPLC acted independently. Under these
circumstances, it is evident that NNPLC is a mere façade entity on
behalf of NDTV; and without prejudice to this, NNPLC is beyond doubt
an agent of NDTV".
In paragraph 5.16, the DRP has held that: "The totality of the
transaction clearly leads to the inescapable conclusion that the
entire transaction of sale & subsequent buyback of shares was a
"sham" entered into by the assessee with the sole motive of
introducing Rs, 642,54,22,000/ - in its books and providing loss of
Rs. 584.46 Crores to Universal Studios BV Netherlands."
In paragraph 5.16.1, the DRP has held that: " .. it is held that the
assessee has brought an amount of Rs. 642,54,22,000/ - being
unexplained money into its books through its subsidiary NDTV Networks
BV Netherlands. It is pertinent to mention that, as per the admission
of the assessee the above subsidiary has been subsequently liquidated,
which shows that the same was floated only to create a front for
introducing the above amount".
Issue of unsecured loan for Rs. 254.75 Crores transferred to an NDTV
subsidiary from a subsidiary of NBCU in 2009-2010 which has been found
to be a non-genuine transaction by the AO and the DRP
In paragraph 5.17, the DRP order reproduces the AO's letter dated 20
August 2013, where the AO has stated: "Another issue involved in the
case is that during the year, the assessee company, through its
guarantees, raised an amount of Rs. 365,25,00,000/ - as unsecured
loans through its subsidiary NNPLC. As the information was stated to
be furnished by the assessee on 30.03.2013, i.e. just one day before
the expiry of limitation, therefore, this aspect could also not be
probed by the AO as to the identity of the payers, the
creditworthiness of the payers and the genuineness of the
transactions".
The remand report of the AO dated 11.12.2013 has examined the "Tax
implications of unsecured loans amounting to Rs. 365.25 Crores
received by NDTV through its subsidiary NNPLC".
The AO sought further information from NDTV including documentary
evidence regarding this unsecured loan of Rs. 365.25 Crores received
by NNPLC by letter dated 11.11.2013 to which NDTV sent a misleading
response dated 26.11.2013 (reproduced in the DRP order in paragraph
2.4.3.
NDTV was confronted by its misleading and evasive lies on this issue
of the unsecured loan by the AO by letter dated 5.12.2013 (reproduced
in paragraph 2.4.4 of the DRP order).
NDTV sent another response dated 10.12.2013 and the AO found yet again
that NDTV had failed to discharge the onus cast upon it.
The remand report of the AO proposed that the amount of Rs. 254.75
Crores be added to the assessee's income for that year. NDTV provided
an alternative explanation for Rs. 110.5 Crores.
The DRP order records in paragraph 5.19 that: "The copy of the remand
report was given to the assessee on 16.12.2013 to submit its rejoinder
and on the day of hearing i.e., on 17.12.2013 they were asked to treat
the forwarding letter of the DRP enclosing the remand report as
enhancement notice by DRP to cut short the time as the matter is
getting time barred on 31.12.2013. The same was recorded in the order
sheet vide entry dated 17.12.2013."
For the first time on 23.12.2013, NDTV by a letter produced before the
DRP a document purported to be a loan agreement dated 10.11.2008
between Universal Studios international BV (a subsidiary of NBCU and
therefore of General Electric Company at the relevant time) on the one
hand and between NDTV Ltd, NDTV PLC, and NDTV Networks BV on the other
hand. NDTV claimed in this letter that they had been unable to produce
this document earlier as the issue had come up for the first time
before the DRP, and because the AO had not specifically asked for the
loan agreement (both these assertions are factually incorrect).
The DRP handed over the copy of this purported loan agreement to the
AO for his response, and the AO placed a response dated 26.12.2013
before the DRP addressing this loan agreement.
NDTV's letter dated 23.12.2013 also stated that a confirmation of this
loan transaction from Universal Studios International BV was also
attached. The AO response however noted that though the attached
confirmation by Universal Studios International BV mentions a bank
account in BNP Paribas and states that the copy of the bank
certificate is attached, yet no bank certificate was actually
attached.
The AO has further noted in its response that copies of documents
provided were mere photocopies and not subject to any verification or
enquiries and held that the assessee had failed to discharge the onus
of proving the identity of the lender, creditworthiness of the lender
and the genuineness of the transaction.
The DRP in paragraph 5.23 of its order has noted that "From a bare
perusal of the so called agreement copy by the DRP, it is found that
the above loan is advanced without any interest, the reason for which
has not been explained. The amount involved is quite a large sum of
money. Further, as per this document, the interest free credit
facility was to be granted on the basis of a duly completed
utilization request, where as no such utilisation request or basis for
seeking the above credit facility has been produced by the assessee
before the AO or before the DRP. We are therefore in agreement with
the AO's finding that the onus of proving the genuineness of the loan
transaction has not been discharged by the assessee. The AO is,
therefore, directed to make addition of Rs. 254.75 Crores."
It is pointed out that this loan does not appear to have been repaid
by NDTV/ its subsidiary to NBCU/ Universal Studios BV (Netherlands).
The DRP order dated 31 December 2013 has directed the AO to complete
the assessment according to the directions issued by the DRP in its
order.
The DRP order dated 31 December 2013 issued in respect of NDTV Ltd for
the assessment year 2009-2010 therefore prima facie establishes that
between 2008 and 2009-2010, a subsidiary of General Electric Company
entered into sham and non-genuine transactions with shell subsidiaries
of NDTV Ltd which resulted in a transfer of Rs. 839.21 Crores to NDTV
and which had no discernable commercial purpose or economic substance
other than to result in the transfer of this money from General
Electric Company/ NBC Universal to NDTV Ltd.
The DRP order dated 31 December 2013 (which is an order of a Civil
Court) has therefore arrived at binding findings/ conclusions that
subsidiaries of NDTV Ltd and NBCU engaged in money laundering in 2008
and 2009 by entering into sham transactions for issue/ transfer of
shares and for transfer of an unsecured loan, both of which resulted
in a net transfer of unaccounted money amounting to Rs. 839.21 Crores
from NBCU to NDTV Ltd. NBCU was at the relevant time owned and
controlled by General Electric Company and therefore this money
laundering was carried out by General Electric Company using NBCU.
This much is already established by the DRP order dated 31 December
2013 itself.
Since a company owned and controlled by General Electric Company was
used in these illegal and sham transactions amounting to money
laundering, it must be concluded that General Electric Company had an
interest in these illegal transactions. General Electric Company/ NBCU
would not participate in laundering someone else's money for someone
else's benefit. Further investigation into these transactions will
therefore establish the exact interest of General Electric Company in
using a group company to carry out these illegal transactions. The
only possible reason for General Electric Company to use a group
company to participate in these illegal transactions would be that
these transactions were used to transfer bribes for and on behalf of
General Electric Company to Indian politicians/ decision-makers/
policy-makers in exchange for favours rendered to General Electric
Company to cause financial gain to General Electric at the cost of the
Indian public exchequer.
Here are the possible reasons for General Electric Company to have
transferred these bribes:
(i) The deals favouring General Electric agreed to/
permitted by the Government of India relating to the Dabhol power
project which caused financial gain to General Electric and financial
loss to the Indian public exchequer and to Indian public sector firms
and Indian public sector banks, and which facilitated the cover up of
the corrupt dealings connected to this Project.
(ii) The nuclear deal signed by the UPA government which
damaged Indian national interest and which was signed to permit the
sale of nuclear power plants to India by General Electric for
commercial gain.
(iii) Kickbacks paid to Indian legislators to purchase
votes for the nuclear deal related vote of no-confidence in the Indian
Parliament.
(iv) The high value General Electric aircraft engine deal
for the HAL TEJAS aircraft agreed to by the Indian Government after
efforts to develop an indigenous aircraft engine were sabotaged.
(v) The high value General Electric aircraft engine deal
with Air India for exclusive use of General Electric engines in the
Boeing aircraft purchased by Air India.
(vi) The Project, tenders and contract for the diesel
locomotive factory at Marhowra, impugned by the undersigned in Writ
Petition Civil 1280 of 2012 pending in the Delhi High Court.
Further investigations are required into the illegal transactions
between NBCU and NDTV described in the DRP order dated 31 December
2013. Since these transactions involve legal entities incorporated in
India, the United States, the United Kingdom, and the Netherlands
besides other tax havens including the Cayman Islands, the authorities
in all these jurisdictions including the European Union must launch
fraud, criminal, and revenue investigations into these illegal and
sham transactions between NDTV Ltd and NBC Universal/ General Electric
Company.
However even without such further investigations, the DRP order dated
31 December 2013 has conclusively held that subsidiaries of NBCU and
NDTV Ltd engaged in money laundering activities in 2008 and 2009 using
sham and non-genuine transactions with the sole intent and purpose to
move unaccounted for money from NBCU to NDTV Ltd and to defraud India
revenue and in violation of Indian laws including the Prevention of
Money Laundering Act and the Foreign Exchange Management Act. This
finding by a Civil Court (the DRP) against a subsidiary/ associate of
General Electric Company renders General Electric Company liable for
disqualification and blacklisting in all tenders and contracts issued
by the Government of India.
The effect of the DRP order dated 31 December 2013 would also be that
the declarations/ disclosures made by General Electric Company and/ or
its Associates in connection with any contracts/ tenders as required
by the guidelines dated 31 July 2001 issued by Department of
Disinvestment, Government of India would no longer be true and correct
or compliant with these guidelines.
By virtue of the DRP order dated 31 December 2013, wherein a finding
of money laundering has been recorded against an associate firm
(subsidiary) of General Electric Company, General Electric Company and
all its associate firms automatically stand disqualified to
participate in Indian Government contracts and tenders to which the
said guidelines dated 31 July 2001 apply.
The Government of India must therefore take steps to disqualify and
blacklist General Electric Company and its subsidiaries from all
contracts and government tenders in India, including the current
Global tenders for the Projects for the proposed diesel and electric
locomotive factories at Marhowra and Madhepura respectively (being
Global RFQ No. 2013/M(W)/964/33 dated May 2013 and Global RFQ No.
2013/ Elect. (Dev)/440/7 dated 6 May 2013 issued by the Ministry of
Railways, Government of India for the diesel and electric locomotive
factory Projects respectively).
The undersigned who is the petitioner in person in Writ Petition Civil
1280/ 2012 (in the matter of Seema Sapra vs General Electric Company
and Others) which raises complaints of corruption, fraud, forgery,
bribery, illegal lobbying etc against General Electric Company and its
subsidiaries/ agents in connection with the Projects/ Tenders/
Contracts for the diesel and locomotive factory Projects, has in that
matter also moved Civil Miscellaneous Application 7197 of 2013 seeking
the following relief:
(a) Stay the decision of the Cabinet dated 1 May 2013 to cancel the
impugned tenders and to issue new RFQs and RFPs for the ELF and DLF
Projects or to proceed with the new Bidding Process for these Projects
until this writ petition is heard and finally decided and until the
complaints made in this writ petition are dealt with in accordance
with law;
(b) Injunct/ restrain respondents 4 and 5 (Railway Ministry and the
Union of India through the PMO) from proceeding further with the bid
process under the two RFQs issued on 6 May 2013 (Global RFQ No.
2013/M/ (W)/ 964/33 dated May, 2013, and Global RFQ No. 2013/Elect
(Dev)/440/7 dated 6 May, 2013) until this writ petition is heard and
finally decided;
(c) Injunct/ restrain respondents 4 and 5 (Railway Ministry and the
Union of India through the PMO) from issuing the RFQ documents for DLF
and ELF (for Global RFQ No. 2013/M/ (W)/ 964/33 dated May, 2013, and
for Global RFQ No. 2013/Elect (Dev)/440/7 dated 6 May, 2013) to
General Electric Company, or to GE India Industrial Private Limited,
or to GE Global Sourcing India Private Limited or to any of their
associate companies and/or from receiving applications for
prequalification under these RFQs from any of these companies or their
associates until this writ petition is heard and finally decided;
(d) Injunct/ restrain respondents 4 and 5 (Railway Ministry and the
Union of India through the PMO) from short-listing General Electric
Company or GE India Industrial Private Limited, or GE Global Sourcing
India Private Limited or any of their associate companies under Global
RFQ No. 2013/M/ (W)/ 964/33 dated May, 2013, and Global RFQ No.
2013/Elect (Dev)/440/7 dated 6 May, 2013 until this writ petition is
heard and finally decided;
(e) Direct the PMO and the Railway Ministry to file separate
affidavits (through the Principal Secretary, PMO and the Chairman of
the Railway Board respectively) answering the questions raised in this
application;
(f) Direct the Railway Ministry to blacklist General Electric
Company, GE India Industrial Private Limited, GE Global Sourcing
India Private Limited and all and any of their associate companies
from participation in any Railway Tenders including (Global RFQ No.
2013/M/ (W)/ 964/33 dated May, 2013, and Global RFQ No. 2013/Elect
(Dev)/440/7 dated 6 May, 2013) for a minimum period of two years;
In CM 7197 of 2013 the petitioner has pointed out that the decision of
the Government of India to cancel the 2010 tenders for these Projects
(which were impugned in WP Civil 1280 of 2012) during the pendency of
that writ petition and without considering the complaints of
corruption, fraud, bribery, forgery and illegal lobbying pertaining to
these tenders and Projects which are the subject matter of WP Civil
1280 of 2012, was nothing but a colorable, malafide and fraudulent
exercise of power to cover up these complaints against General
Electric, to avoid having to disqualify and blacklist General
Electric, to sabotage the hearing of WP Civil 1280 of 2012, to
over-reach the Delhi High Court, and to prevent the Delhi High court
from deciding that matter on merits.
CM 7197 of 2013 also points out that several other prayers made in
Writ Petition Civil 1280 of 2012 survive despite this fraudulent
attempt by the Government of India to over-reach the Delhi High Court,
and to sabotage the hearing of WP Civil 1280 of 2012 with intent to
cover up the corruption complaints against General Electric Company.
The prayers made in WP Civil 1280 of 2012 are as follows:
1. Summon the records of Respondent Nos. 2, 4 and 5 on the
whistle-blower complaints made by the Petitioner and after examining
the records and hearing the Respondents, issue a writ of mandamus to
Respondent 4 directing that Respondent 7 be disqualified and
Respondent Nos. 1, 6 and 7 be black-listed from the Diesel and
Electric Locomotive Tenders (Global RFQ No. 2010/ ME (Proj)/ 4/
Marhoura/RFQ and RFQ No. 2010/ Elect. (Dev0 440/1(1)).
2. Issue writs of mandamus to Respondent Nos. 2, 4 and 5
directing them to respond to and act upon the said whistle-blower
complaints in accordance with law.
3. Direct that Respondent No. 2 inquire into the commission of
criminal offences (including forgery, bribery and public corruption)
arising out of the Petitioner's whistle-blower complaints and direct
prosecution of GE employees and government officials and public
servants found involved and complicit.
4. Enforce and protect the right to life of the Petitioner and
direct that the Petitioner be provided full protection and safety and
be immediately relocated to a safe house.
The DRP order can be read at
http://seemasapra.blogspot.in/2014/03/did-general-electric-transfer-bribes-to.html
This is the reason why honest IRS officer S K Srivastava (the
whistleblower who exposed this money laundering by NDTV) has been
targeted and victimized including by a group of corrupt Delhi High
Court judges and lawyers. Mr S K Srivastava has also been subjected to
psychiatric abuse.
A copy of my curriculum vitae is attached.
Seema Sapra
Lawyer enrolled with the Bar Council of Delhi
Read http://www.ibtl.in/column/1403/would-us-authorities-investigate-ge-in-the-ndtv-money-laundering-case/
Read about the Case of Income Tax officer S K Srivasatava who was investigating Mr P Chidambaranm and NDTV for money laundering and who was viciously targeted by a group of corrupt judges and lawyers in the Delhi High Court and was subjected to psychiatric abuse.
Read http://pcwedsndtv.blogspot.in/ and http://mumbaiwalla.com/shocker-ndtv-probed-money-laundering-tax-evasion/
Read activist Madhu Kishwar at http://www.manushi.in/articles.php?articleId=1749#.UvdixPmSzQM and at http://www.manushi.in/articles.php?articleId=1751#.UxHLC_mSzQM
Read Mr Ram Jethmalani's letter dated 6 December 2013 to Mr P Chidambaram at https://drive.google.com/file/d/0BxHBZ8fQxNoQOU1RS3V2OGlLcFk/edit?usp=sharing
Here is the IndianIncome Tax Authorities' Dispute Resolution Panel's order against NDTV (It can also be accessed at : http://www.scribd.com/doc/202588312/NDTV-to-be-taxed-on-Rs-897-27-crores-of-unassessed-income-IT-Department
