Supreme Court Remands Flipkart Appeal Against NCLAT Order Prima Facie Finding It Preferred Certain Sellers
Kirit Singhania
3 Feb 2026 5:34 PM IST
The Supreme Court of India on Tuesday sent back to the National Company Law Appellate Tribunal a case alleging abuse of dominance by Flipkart in favouring select sellers on its marketplace.
The appeal filed by Flipkart challenges an NCLAT order dated March 4, 2020, which had set aside the closure of the case by the Competition Commission of India and held that the material on record disclosed a prima facie case of abuse of dominance warranting investigation.
The NCLAT order was passed on an appeal filed by the All India Online Vendors Association, which has alleged that Flipkart extended preferential treatment to select sellers, resulting in unfair and discriminatory conditions for independent vendors.
The Supreme Court intervened after noting Flipkart's contention that the appellate tribunal had relied on observations made by an income tax assessing officer, even though those findings were later set aside by the Income Tax Appellate Tribunal, and asked the NCLAT to reconsider the matter afresh.
A bench of Chief Justice Surya Kant, with Justices Joymalya Bagchi and Vipul M. Pancholi, while declining to interfere with the findings of the NCLAT, observed,
“We request the NCLAT to decide the appeal afresh, keeping in mind the principles stated by this Court in a catena of decisions, including in Coal India Ltd. The parties will be at liberty to raise their respective contentions for the purpose of determining whether a prima facie case is made out, and if so, whether further remand of the case to the CCI is warranted”
Senior advocate Abhishek M. Singhvi, appearing for Flipkart, told the court that the CCI conducted a detailed investigation and applied the parameters of the Coal India case of relevant market, dominant position, and abuse of dominance while closing the investigation.
Singhvi said the CCI had noted in its order that there were other big players in the market, such as Amazon; as a result, Flipkart could not be said to have abused its position.
He also pointed out the NCLAT order, which had relied upon an observation made by an assessing officer in the Income Tax department, which said Flipkart was abusing its dominant position.
The CJI, however, proposed remanding the matter back to the appellate tribunal to consider factors other than what the assessing officer had found. Counsel for the All-India Online Vendor's Association argued that the ITAT had reversed the assessment order on certain points of law and the observations regarding predatory pricing were not dealt with.
Background
Complaints were filed on May 21, 2018, by the All-India Online Vendors Association under the Competition Act. The informant alleged that Flipkart India Pvt Ltd and Flipkart Internet Pvt Ltd were engaging in anti-competitive conduct by extending preferential treatment to select sellers on the Flipkart marketplace platform.
They alleged that Flipkart India sold goods at prices below cost to certain sellers, who then sold those goods at deep discounts on Flipkart's platform, resulting in unfair and discriminatory conditions and exclusion of independent vendors.
On November 6, 2018, the Competition Commission of India (CCI) formed the view that no prima facie case of abuse of dominance was made out.
The CCI in its order defined the relevant market as “services provided by online marketplace platforms for selling goods in India” and held that Flipkart Internet did not enjoy a dominant position in the said market, noting the presence of multiple competitors and the ability of sellers to operate across platforms. It closed the matter without directing an investigation.
Unsatisfied by the closure order, the informant approached the National Company Law Appellate Tribunal. The appellants argued that the CCI had failed to properly appreciate material on record, including findings recorded by tax authorities indicating sustained losses and alleged predatory pricing strategies adopted by Flipkart India with the objective of capturing market share.
On March 4, 2020, the NCLAT set aside the CCI's order. It held that, at the prima facie stage, the Commission was only required to assess whether sufficient material existed to warrant investigation.
The appellate tribunal found that the allegations and factual findings placed on record disclosed a prima facie case of abuse of dominance and remanded the case back to the CCI to order a detailed investigation by the Director General into the conduct of the Flipkart entities.