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and
also
other details
obtained
during
the
preliminary
examination, prima facie indicated that the activity of the Noticee is in the
nature of offering stock market advisory tips and investment advisory
services to its clients, the concerned department of SEBI viz. Investment
Management Department vide letters dated February 14, 2014, March 7,
2014, April 9, 2014 and May 22, 2014 and also vide emails dated April
10, 2014, May 22, 2014 and June 13, 2014 had advised the Noticee to
refrain from providing stock market advisory tips to its clients and to
ensure compliance with the provisions of SEBI ( Investment Advisers)
Regulations, 2013 (hereinafter referred to as Investment Advisers
Regulations). However, it was observed by SEBI that the Noticee had
failed to respond to the aforementioned letters / emails and also failed to
deactivate the website through which the Noticee was providing stock
market advisory tips and investment advisory activities to its clients. It was
therefore alleged that the Noticees activities were in violation of the
provisions of Section 12 of the SEBI Act, 1992 (hereinafter referred to as
SEBI Act) and also Regulation 3 of the Investment Advisers Regulations.
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5. The gist of the allegations leveled against the Noticee in the SCN dated
October 31, 2014 are as under :
a) It was mentioned that the Noticee had provided stock market advisory
tips through its website without being registered with SEBI as an
Investment Adviser in terms of the Investment Advisers Regulations. It
was further alleged that the Noticee continued to function as
Investment Adviser despite repeated instructions issued to the Noticee
by SEBI to refrain from undertaking such activities without being
registered with SEBI under the provisions of Investment Advisers
Regulations.
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letters dated March 24, 2015, August 25, 2015 and August 31, 2015 are
as follows:
a) Till the beginning of the Year 2014, our website had the contents to
provide knowledge to the general public and we did not reap any
monetary benefit out of the same in any manner at all. Neither did we
solicit any business of stock market in any manner from any person.
b) The website was created for knowledge purposes only and we did not
approach anyone in the open market to solicit any business. No one
from the general public had approached us or invested in stock market
based on our website and neither did we enter into any CIS Schemes,
for that matter. At no point of time, we solicited business on the basis
of investments in market or market investment schemes.
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h) The only glitch in the website was the word TIPS, that too not in the
main page, the website creator committed this. When this was brought
to the notice of BSS they immediately had it removed.
i) Since the regulations were brought into effect, the business was not
viable due to the compliances to be made. However, the advisor for
BSS could not specify the regulations and there was delay in making
the application beyond the required date. We pray for leniency on this
count. We never made any money on this count.
j) BSS finally made the application on 13-06-2014. In the absence of any
confirmation for registration, first the website was shut down on 01-102014 and the client base also started dwindling to negligible figures as
the business was not at all viable
k) It took some time to apply for registration as our advisor at that time
consumed time in spite of him being provided with all the documents.
Anyway, with regards to this, kindly overlook and condone the small
lapse.
l) The contents of the website were very simple, providing knowledge as
to the stock market and no particular company was pin pointed in the
website. No particular company was advised in this regard.
m) No corporate clients were dealt within the same and hence no
particular client base is available.
n) Pending issuance of registration by SEBI we have stopped the
advisory business also.
o) The entity of BSS is being closed full and final from 01-10-2015 and all
business in this company would totally stop.
p) The year wise breakup of the receipts of BSS are as follows:
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Financial Year
Amount
( in Remarks
Rs)
2012-13
11,63,530.00
2013-14
13,78,210.00
2014-15
7,84,260.00
2015-16
1,78,278.00
On behalf of the Noticee, M/s Maitra J and Co also made the following
additional submissions during the personal hearing held on August 26,
2015 and on September 29, 2015.
(a) Noticee admitted to the delay on its part in making the application for
registration as Investment Adviser under the Investment Advisers
Regulations. Noticee also mentioned during the course of the proceedings
that it has currently stopped the business of Investment Advisory and have
also removed the website in this regard.
(b) Noticee admitted to the fact that it had provided tips to clients even after
the notification of Investment Advisers Regulations (without being
registered as an Investment Adviser with SEBI).
(c) Noticee also admitted to collection of fees from its clients towards the
advisory services provided to them.
(d) Noticee requested that a lenient view may be taken in the said matter.
during the personal hearing held on August 26, 2015 and September 29,
2015. I observe that allegations were levelled against the Noticee that it
had provided stock market advisory tips, guaranteed money making share
market tips to clients through its website www.beststocksolutions.com. It
was therefore alleged that the Noticee had functioned as Investment
Adviser without being registered with SEBI under the provisions of
Investment Advisers Regulations.
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firm.
However,
observe
from
the
subsequent
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of Best Stock Solutions and the Proprietors name was also mentioned in
the application form as Shri Amit Upadhyay.
10. I observe that SEBI had received a complaint against the Noticee during
January 2014, wherein it was alleged by the complainant that the Noticee
was providing guaranteed money making share market tips on its website
viz. www.beststocksolutions.com. In this regard, I also observe that the
complainant had enclosed the relevant page extracted from the above
mentioned website. On perusal of the contents mentioned in the complaint
and also the website, I find that the Noticee had used the reference of
SEBI registered Stock Brokers viz. K R Choksey, Networth Direct,
Samurdhi India etc. I observe from the reply of the Noticee that it was
associated with the above mentioned Stock Brokers for the purpose of
sharing stock market related expertise and research data based on past
performances of the listed stocks. I also observe that the Noticee had
added the additional feature Guaranteed Money Making Share Market
Tips on its website so as to entice the clients to invest in the stocks for
which the tips were offered. I find from the contents mentioned in the
website that the logo and tag line of the Stock Brokers mentioned above
were prominently displayed by the Noticee, which leads to a visual
misrepresentation made to the clients who invest in the stocks for which
the tips were offered by the Noticee. Further, it also gives an impression
that the stock market tips and assured returns guaranteed through the
website of the Noticee are backed by the commitment of the Stock
Brokers, as mentioned above.
11. I find from the contents mentioned in the Noticees website that the
Noticee had used the terms such as stock tips, stock market tips on
mobile, short term and long term tips, read our terms and conditions of
stock tips on your mobile for 2 days, Big profit less capital ,Bank Nifty
calls , Future and Options, STBT Tips etc. Further, I also observe that
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12. I observe that the Stock Brokers viz. K R Choksey, Networth Direct and
Samruddhi India in their respective emails addressed to SEBI have denied
knowledge about the fact that the Noticee was using their name through
the website for providing guaranteed stock market tips to clients. I further
observe from the reply submitted by the Stock Brokers that they had
utilized the services of the Noticee for obtaining the search engine for
marketing facilities and as per the agreed terms, they were providing
research calls / research reports to the Noticee. I find that the Stock
Brokers have categorically stated in their reply that the research reports /
calls provided by them to the Noticee did not contain any guaranteed tips
or guaranteed money making share market tips. I also observe that the
Stock Brokers have severed all their business connections with the
Noticee upon receipt of the complaint from SEBI.
13. On perusal of the bank statement of the Noticee i.e Account no.
911020065899477 maintained by the Noticee with Axis Bank, I observe
that there were regular flow of funds in the form of cash deposits ranging
from Rs 5000/- to Rs 15,000/- which were made into the above mentioned
account during the calendar years 2012 and 2013. These cash deposits
that were made into the Noticees bank account are nothing but the
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subscription amount paid by the users of the Noticees website and also
the charges paid by the clients towards the stock advisory services offered
to them by the Noticee. The Noticee has also admitted to receiving these
amounts towards BPO training facilities and receiving small amount
towards stock market advisory services offered to its clients.
14. Contrary to the above observations, I find that the Noticee in its letters
dated August 25, 2015 and August 31, 2015 have denied offering stock
tips to corporate or retail clients, collecting money from the general public,
recommending any company to clients from an investment perspective,
coercing the public to invest in stocks etc. It was mentioned by the Noticee
that the website ( www.beststocksolutions.com ) had contents to only
provide knowledge to its users and the website did not contain any
information recommending investment in the stocks of listed companies. I
am unable to agree with the submissions / views put forth by the Noticee.
It is on record that the Noticee on various occasions have admitted to
offering stock market related advisory services, functioning as investment
advisor and also offering stock market related tips to its clients. Relevant
submissions made by the Noticee in this regard are mentioned below:
Vide letter dated June 13, 2014 forwarding the application form for
registration as Investment Adviser, the Noticee had specifically
mentioned that I wish to state that I am a proprietor of Best Stock
Solutions and is already engaged in providing investment advisory
services since June 2011. Our advice are mostly on the equity and
debt products and our clients are traders and investors who seek
guidance from experts. The services we provide are extremely
personalized
and
based
on
thorough
reading,
analysis
and
Thus, from the facts mentioned above and also the observations brought
out in paras 10 and 11 above, I am convinced that the activities of the
Noticee of providing stock market related tips and making stock market
related recommendations and offering advisory services to the investors
on payment of fees falls within the definition of the activities of Investment
Adviser as defined under Regulation 2 (m) of the Investment Advisers
Regulations. The above observations also leads to the inescapable
conclusion that the Noticee had functioned as an Investment Adviser for a
very long period without obtaining registration from SEBI. In view of the
above observations, I also find it very unreasonable on the part of the
Noticee in making conflicting statements / submissions from time to time
as regards the usage of the term Tips in its website and also in the matter
regarding providing stock market related tips and advisory services to
clients through its website.
15. I observe that SEBI had issued letters dated January 31, 2014, February
17, 2014, March 7, 2014, April 9, 2014, May 22, 2014 and also sent
emails to the Noticee on April 10, 2014, May 22, 2014 and June 13, 2014
advising the Noticee to refrain from providing stock market advisory tips
and also to comply with the provisions of the Investment Advisers
Regulations. I further observe that the Noticee had submitted its
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21. The material made available on record has not quantified the amount of
disproportionate gain or unfair advantage made by the Noticee and the
loss suffered by the investors as a result of the Noticees default. I observe
that Noticee vide its letter dated August 31, 2015 has confirmed that it had
received an income of Rs 11.63 lakh for the financial year 2012-13, Rs
13.58 lakh as income during the financial year 2013-14, Rs 7.84 lakh
during the financial year 2014-15 and Rs 1.78 lakh during the financial
year 2015-16 ( upto August 2015). However, I observe from some of the
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ORDER
23. After taking into consideration all the facts and circumstances of the case,
the material on record and the factors stipulated in Section 15 J of the
SEBI Act, I, in exercise of the powers conferred upon me under Section 15
I of the SEBI Act, impose a penalty of Rs 12,00,000/- ( Rupees Twelve
Lakh only) on the Noticee viz. Best Stock Solutions ( Represented by its
proprietor Mr Amit Upadhyay) in terms of the provisions of Section 15 HB
of the SEBI Act, 1992. I am of the view that the above penalty will be
commensurate with the violation committed by the Noticee.
24. The penalty shall be paid by way of demand draft drawn in favour of SEBI
Penalties Remittable to Government of India payable at Mumbai within
45 days of the receipt of this Order. The said demand draft shall be
forwarded to the Chief General Manager, Enforcement Department,
Securities and Exchange Board of India, SEBI Bhavan, Plot No. C 4 A,
G Block, Bandra Kurla Complex, Bandra (East), Mumbai 400 051.
Place: Mumbai
Date: 03.05.2016
SURESH B MENON
ADJUDICATING OFFICER
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