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NCLAT tells AIOVA to prove abuse before dominance in case against Flipkart

On August 14, at the second hearing of the All India Online Vendors Association’s (AIOVA) appeal against the Competition Commission of India’s (CCI) clean chit to Flipkart over the issue of abuse of dominant position to favour “preferred sellers” through unfair and discriminatory pricing, the National Company Law Appellate Tribunal (NCLAT) instructed AIOVA, Flipkart and Competition Commission of India to submit their written arguments by August 19. The hearing took place in the Chairperson’s Court and was heard by NCLAT Chairperson Justice S. J. Mukopadhaya, Justice A. I. S. Cheema (Judicial Member), and Kanthi Narahari (Technical Member). Chanakya Basa represented AIOVA, while Amit Sibal and Yaman Verma represented Flipkart. A.C. Ojha, the joint director of the economics division at the CCI, represented CCI. Tribunal: Focus on abuse first, then talk about dominance Justice Mukopadhaya asked Basa one of the questions he had asked at the last hearing on July 30 as well — how do members of AIOVA use the platform? Basa explained that the vendors used Flipkart to sell their products. Justice Mukopadhaya told Basa to talk about abuse by Flipkart, not its dominance, first. “What is the abuse on their part? What is the area? What is their market?” To that end, Basa cited Flipkart’s case against the Assistant Commissioner of Income Tax in the Income Tax Appellate Tribunal, Bangalore. Justice Mukopadhaya asked him what the abuse was in this case. “Income tax has nothing to do with you. What have they [Flipkart] done to abuse their dominant…

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