In Re: AMP Supercars Private Limited And Ors. Vs

B.S.V. Prakash Kumar, J

This company petition has been filed by the Petitioner Companies under Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 and the National Company Law Rules, 2016, for the purpose of the approval of the Scheme of Demerger as contemplated between the Petitioner Company No. 1/Demerged Company and the Petitioner No. 2 Company/Resultant Company. The copy of the Scheme of Demerger (hereinafter referred to as the "Scheme") has been placed on record.

The "Petitioner Company No. 1/Demerged Company", M/s. AMP Supercars Private Limited was incorporated on 12.08.2014 under the provisions of the Companies Act, 2013 and having its registered office at 2686, Kashmiri Gate, New Delhi - 110006.

The "Petitioner Company No. 2/Resultant Company" M/s. AMP Motors Private Limited was incorporated on 22.10.2009 under the provisions of Companies Act, 1956 and having its registered office at 2686, Kashmiri Gate, New Delhi- 110006.

A perusal of the Petition discloses that initially the First Motion application seeking dispensation from the convening of the meetings of the Equity Shareholders, Secured Creditors and Unsecured Creditors of both the petitioner companies was filed before this Bench vide Company Application (CAA) No. 86/PB/2019 and based on such application moved under Sections 230-232 of the Companies Act, 2013, the meetings of the Equity Shareholders, Secured Creditors and Unsecured Creditors of both the petitioner companies were dispensed with vide order dated 14.06.2019 passed by this bench.

Thereafter, vide order dated 21.08.2019 both the Petitioner Companies were directed to carry out publication in the newspapers "Business Standard" (English, Delhi edition) and "Jansatta" (Hindi, Delhi edition). In addition to the public notice, notices were also directed to be served on the Central Government through Regional Director (Northern Region), Registrar of Companies, NCT of Delhi and Haryana, the Income Tax Department and to such other sectoral Regulate Authorities who are likely to be affected by this Scheme.

It is seen from the records that both the Petitioner Companies have filed an affidavit dated 10.10.2019 affirming compliance of the order dated 21.08.2019 passed by the Tribunal. A perusal of the affidavit discloses that the Petitioner Companies have affected the publication as directed in one issue of the "Business Standard" English edition as well as in "Jansatta" Hindi edition on 11.09.2019 in relation to the date of hearing of the petition. Further, the affidavit also discloses that copies of the petition have been duly served to the Registrar of Companies, Central Government through Regional Director, Northern Region, and Income Tax Department in compliance of the order and in proof of the same acknowledgement made by the respective offices have also been enclosed.

The Income Tax Department has filed its report and made the following observations:

"With respect to the Resultant Company AMP Motors Pvt. Ltd it is submitted as follows:

a. There is an outstanding amount of Rs. 1,33,95,500/- for the Assessment Year 2018-19 u/s 143(1)(9a) of the Income Tax Act, 1961.

b. There are pending proceeding before the Ld. Income Tax Appellate Tribunal for the Assessment Years 2010-11 and 2015-16."

In reply to the aforementioned observations the Petitioner Companies have filed an affidavit affirming that all pending demand or demands that are likely to arise in nearby future relating to Income Tax in case due and payable by the Petitioner No. 2 Company shall be duly honored in the normal course of business.

Ld. counsel for the Petitioner companies further pointed out that there are pending proceedings before the Ld. Income Tax Appellate Tribunal for the assessment year 2010-11 and 2015-16 for the Resultant Company/Petitioner No. 2 Company and depending on the outcome of the Appellate proceedings the liabilities will be crystallized

It is further submitted by the petitioner companies that as per para 4 (d) of the affidavit/undertaking wherein it is stated that Resultant Company/petitioner No. 2 Company shall continue to exist and all the pending demand or demands that are likely to arise in the future pertaining to the Income Tax Department shall be duly honored. The Demerger exercise will have no impact on the recovery of tax, statutory dues and satisfaction of all the pending demands relating to income tax.

Be that as it may, in order to protect the interest of the Revenue it is clarified that there shall be no limitation on the power of the Income Tax Department for recovery of pending Income Tax dues, including imposition of penalties etc. as provided in law.

The Regional Director has filed its report wherein no specific objection has been raised against the approval of the Scheme.

It is pertinent to state here that at the time of final hearing on 08.05.2020, the Ld. Counsels on behalf of the Income Tax Department and Central Government through Regional Director have not raised any objection against the approval of the Scheme.

The Petitioner has affirmed that no proceeding for inspection, inquiry or investigation under the provisions of the Companies Act, 2013 or under the provisions of Companies Act, 1956 is pending against the Petitioner Company.

It is also submitted in the Petition that the appointed date of the Scheme shall be effective from Appointed Date i.e. 01.04.2018.

Certificates of respective Statutory auditors of both the Petitioner Companies have been placed on record to the effect that Accounting Treatment proposed in the Scheme of Demerger is in conformity with the Accounting Standard notified by the Central Government as specified under the provisions of Section 133 of the Companies Act, 2013.

It has also been affirmed in the Petition that Scheme is in the interest of the Petitioner No. 1 Company/Demerged Company and the Petitioner No. 2 Company/Resultant Company including their shareholders, creditors, employees and all concerned.

In view of the foregoing, upon considering the approval accorded by the members and creditors of the Petitioner Companies to the proposed Scheme and the report filed by the Central Government through Regional Director, Northern Region, Ministry of Corporate Affairs and Income Tax Department and as there are no objection received from any quarter; there appears to be no impediment in sanctioning the present Scheme.

Consequently, sanction is hereby granted to the Scheme under Section 230-232 of the Companies Act, 2013.

The Petitioner Companies shall however remain bound to comply with the statutory requirements in accordance with law.

Notwithstanding the above, if there is any deficiency found or, violation committed qua any enactment, statutory rule or regulation, the sanction granted by this Tribunal to the Scheme will not come in any way of action being taken, albeit, in accordance with law, against the concerned persons, directors and officials of the Petitioner.

While approving the Scheme as above, we further clarify that this order should not be construed as an order in any way granting the exemption from payment of stamp duty, taxes or any other changes, if any, and payment in accordance with law or in respect to any permission/compliance with any other requirement which may be specifically required under any law.

THIS TRIBUNAL DO FURTHER ORDER

a. That all the property, rights, assets and liabilities relating to the car sales and service division (the Demerged Undertaking) of the Petitioner No. 1/Demerged Company as mentioned in Annexure 'M' in the Petition, be transferred without further act or deed, to the Petitioner No. 2/Resultant Company and accordingly the same shall pursuant to Section 232 of the Companies Act, 2013, be transferred to and vest in the Petitioner No. 2/Resultant Company; and

b. That all liabilities and duties relating to the car sales and service division (Demerged Undertaking) of the Petitioner No. 1/Demerged Company, be transferred without further act or deed, to the Petitioner No. 2/Resultant Company and accordingly the same shall pursuant to Section 232 of the Companies Act, 2013, be transferred to and vest in the Petitioner No. 2/Resultant Company; and

c. That all proceedings now pending by or against the car sales and service division (Demerged Undertaking) of the Petitioner No. 1/Demerged Company, be continued by or against the Petitioner No. 2/Resultant Company;

d. That all the employees of the car sales and service division (Demerged Undertaking) of the Petitioner No. 1/Demerged Company, in service, on the date immediately preceding the date on which the Scheme takes effect, i.e. the effective date shall become the employees of the Petitioner No. 2/Resultant Company on such date without any break or interruption in service and upon terms and condition not less favorable them those subsisting in the Transferor Company on the said date.

e. All business, undertaking, properties, investments and liabilities of whatsoever nature and kind and wheresoever situated of the Demerged Company in relation to the "car sales and service division" on going concern basis together with all its assets and liabilities shall be demerged and transferred to the Petitioner No. 2/Resultant Company;

f. The Petitioner Companies to lodge a copy of this order and the Scheme duly certified by Deputy Director or Assistant Registrar, as the case may be of National Company Law Tribunal, Principal Bench, with the concerned Superintendent of Stamps for the purpose of adjudication of stamp duty payable, if any, on the same, within 60 Days from date of receipt of copy of order.

g. That Petitioner Companies shall within thirty days of the date of the receipt of this order cause a certified copy of this order to be delivered to the concerned Registrar of Companies for registration; and

h. That any person interested shall be at liberty to apply to the Tribunal in the above matter for any directions that may be necessary. The Company Petition stands disposed of in the above terms. Let copy of the order be served to the parties.