Pariksha Builders & Developers Privatelimited Vs Registrar of Companies

Subrata Kumar Dash, Member (Technical)

This is a joint second motion company petition filed by the Petitioner-Companies, namely, Pariksha Builders & Developers Private Limited (Petitioner Company No. 1/Transferor Company No. 1) with Unicorn Real Estate Developers Private Limited (Petitioner Company No. 2/Transferee Company) under Section 230-232 of the Companies Act, 2013 (the Act) read with Companies (compromises, Arrangements, and Amalgamations) Rules, 2016 (the Rules) in relation to the Scheme of Amalgamation between the petitioner companies.

The Petitioner Companies have prayed for sanctioning of the Scheme of Amalgamation between Pariksha Builders & Developers Private Limited (Petitioner Company No.1/Transferor Company) and Unicorn Real Estate Developers Private Limited (Petitioner Company No.2/Transferee Company). The said Scheme is attached as Annexure -P-1 of the petition.

The first motion application seeking directions for dispensing/convening with the meetings of the equity shareholders, debentures holder, and unsecured creditors of both companies was filed before this Tribunal by CA (CAA) No.57/Chd/Hry/2021 and based on such an application necessary directions were issued on 11.03.2022. As per the order dated 11.03.2022, the meetings of equity shareholders, debenture holders, and Unsecured Creditors of applicant companies were dispensed with for the reasons recorded in the aforementioned order.

The main objects, date of incorporation, authorized and paid-up share capital and the rationale of the Scheme have been discussed in detail in the order dated 11.03.2022.

In the second motion proceedings, certain directions were issued by this Tribunal by order dated 29.04.2022 and the same was compiled by filing affidavit vide Diary No.00432/3 dated 04.07.2022. The notice of hearing was published in “The Tribune” (English) and “Dainik Bhaskar” (Hindi), both in Delhi NCR Edition, on 03.06.2022, and the original copies of the newspapers are attached as Annexure-A1 of the aforesaid affidavit. It has also stated in the affidavits that copies of notices were served upon the (1) Central Government through the Regional Director (Northern Region), Ministry of Corporate Affairs New Delhi; (2) The Concerned Registrar of Companies (3) The Official Liquidator; (4) Income Tax Authority through the Nodal Officer-Principal Commissioner of Income Tax, NWR, Ayakar Bhawan, Sector-17-E, through Speed Post on 04.05.2022. Original acknowledgment receipts and postal receipts along with tracking reports evidencing service of notices are attached as Annexure- A2 of the aforesaid affidavit.

It is deposed by the authorized signatory of the applicant companies that no objections have been received from any person in response to the publication made in the newspaper published on 03.06.2022. In response to the abovementioned notices, the statutory authorities have furnished their responses.

7.1Registrar of Companies (RoC)/Regional Director (RD)

7.1.1 The Registrar of Companies (RoC) has filed its report along with the report of the Regional Director (RD), by Diary No.00432/4 dated 11.07.2022.

7.1.2 It is stated in the report of the Regional Director, that RoC, Delhi has made certain observations in its report dated 30.06.2022 and subsequently after obtaining an explanation from the petitioners, found the same satisfactory on all counts.

7.2 Income Tax Department

7.2.1 The Income Tax Department filed its report by Diary Nos. 00432/5 dated 20.12.2022, wherein it has been stated that a demand of Rs. 1,73,45,482/-, Rs.1,52,110/- & Rs.23,550/- for A.Y. 2017-18, 2018-19 & 2019-2020 respectively is pending in respect of the Transferor Company. It is further stated in the report that assessment proceedings under Section 147 pertaining to the assessment years 2013-14, 2014-15, 2015-16, 2016-17 & 2017-18 are pending against the Transferor Company No.1. Further, in view of above, the department has no objection in proposed amalgamation.

7.2.2 The Petitioner Companies have filed a joint response to the reports of the Income Tax Department by Diary No. 00432/6 dated 21.12.2022 stating that the Department has no objection to the scheme of amalgamation. further, as per the scheme the transferee company shall bear the burden and the benefits of any demand, legal or other proceedings initiated by or against the transferor company in accordance with the law, and therefore, the interest of revenue would not be affected at all. Further, the transferee company undertakes to discharge/take care of all its liabilities, proceedings including income tax liability/proceedings, if any, in accordance with law and the carry forward accumulated losses in the petitioner companies, if any, shall be subject to applicable provisions of Income Tax Act, 1961.

7.2.3 In any case, this Tribunal is not shutting out the legitimate interest of the income-tax authorities to recover the lawful dues payable by the petitioner companies which are not being dissolved, and the scheme provides the savings in relation to the liabilities as well, the rights of the tax authorities remain intact, and they can proceed against the companies in accordance with the law, if any amount is found due and payable.

7.3 Official Liquidator

7.3.1 The Official Liquidator has filed his report by Diary No.00432/01 dated 29.06.2022. The Official Liquidator in its report has reproduced the information on the incorporation of the Petitioner Companies, their capital structure, financial highlights, shareholding, etc. The Official Liquidator has also reproduced the extracts of Reports of the Statutory Auditors of the Petitioner Companies on the Financial Statements.

On a perusal of the report, it is seen that the Official Liquidator has made no adverse observation against the petitioner companies.

The certificate of the Statutory Auditors with respect to the Scheme between Petitioner Companies to the effect that the accounting treatment proposed in the Scheme is in compliance with applicable Indian Accounting Standards (Ind AS) as specified in Section 133 of the Act, read with rules thereunder and other Generally Accepted Accounting Principles is attached as Annexures-P11 of the petition.

We have heard the learned counsel for petitioner companies and have perused the record carefully.

In the context of the above discussion, the Scheme contemplated between the petitioner companies appears to be prima facie in compliance with all the requirements stipulated under the relevant Sections of the Companies Act, 2013. As the observations from the Statutory Authorities have been duly addressed by the Petitioner Companies and since all the requisite statutory compliances have been fulfilled, this Tribunal sanctions the Scheme of Amalgamation attached as Annexure -P1 with the petition.

Notwithstanding the submission that no investigation is pending against the petitioner companies, if there is any deficiency found or, the violation committed qua any enactment, statutory rule or regulation, the sanction granted by this Tribunal will not come in the way of action being taken, albeit, in accordance with the law, against the concerned persons, directors and officials of the petitioners.

While approving the scheme as above, it is clarified that this order should not be construed as an order in any way granting exemption from payment of stamp duty, taxes or any other charges, if any, payment is due or required 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:

i. That all the property, rights and powers of the Transferor Company be transferred, without further act or deed, to the Transferee Company and accordingly, the same shall pursuant to Sections 230 & 232 of the Companies Act, 2013, be transferred to and vested in the Transferee Company for all the estate and interest of the Transferor Company but subject nevertheless to all charges now affecting the same; and

ii. That all the liabilities and duties of the Transferor Company be transferred, without further act or deed, to the Transferee Company and accordingly the same shall pursuant to Sections 230 to 232 of the Companies Act, 2013, be transferred to and become the liabilities and duties of the Transferee Company;

iii. All benefits, entitlements, incentives, and concessions under incentive schemes and policies that the Transferor Company is entitled to include under Customs, Excise, Service Tax, VAT, Sales Tax, GST and Entry Tax and Income Tax laws, subsidy receivables from Government, a grant from any governmental authorities, direct tax benefit/exemptions/deductions, shall, to the extent statutorily available and along with associated obligations, stand transferred to and be available to the Transferee Company as if the Transferee Company was originally entitled to all such benefits, entitlements, incentives, and concessions;

iv. All contracts of the Transferor Company which are subsisting or having effect immediately before the Effective Date, shall stand transferred to and vested in the Transferee Company and be in full force and effect in favour of the Transferee Company and may be enforced by or against it as fully and effectually as if, instead of the Transferor Company, the Transferee Company had been a party or beneficiary or obliged thereto;

v. All the employees of the Transferor Company shall be deemed to have become the employees and the staff of the Transferee Company with effect from the Appointed Date, and shall stand transferred to the Transferee Company without any interruption of service and on the terms and conditions no less favourable than those on which they are engaged by the Transferor Company, as on the Effective Date, including in relation to the level of remuneration and contractual and statutory benefits, incentive plans, terminal benefits, gratuity plans, provident plans, and any other retirement benefits;

vi. That the Appointed Date for the scheme shall be 01.04.2021 as specified in the Scheme;

vii. That the proceedings, if any, now pending by or against the Transferor Company be continued by or against the Transferee Company;

viii. That the Transferee Company shall, without further application, allot to the existing members of the Transferor Company shares of Transferee Company to which they are entitled under the said Scheme;

ix. That the fee, if any, paid by the Transferor Company on their authorized capital shall be set off against any fees payable by the Transferee Company on its authorized capital subsequent to the sanction of the ‘Scheme’;

x. That the carry forward and set off of accumulated losses and unabsorbed depreciation allowance in the Petitioner Companies, if any, shall be subject to applicable provisions of Income Tax including Section 72A and Section 79 of the Income Tax Act, 1961;

xi. That the assessment under the Income Tax Act will be in accordance with the provisions of Section 170 (2A) of the Income Tax Act, 1961.

xii. That the Transferee Company shall file the revised memorandum and articles of association with the concerned Registrar of Companies and further make the requisite payments of the differential fee (if any) for the enhancement of authorized capital of the Transferee Company; after setting off the fees paid by the Transferor Company;

xiii. That the Petitioner Companies shall, within 30 days after the date of receipt of this order, cause a certified copy of this order to be delivered to the concerned Registrar of Companies for registration, and on such certified copy being so delivered, the Transferor Company shall be dissolved without undergoing the process of winding up. The concerned Registrar of Companies shall place all documents relating to the Transferor Company registered with him on the file relating to the said Transferee Company, and the files relating to the Companies and Transferee Company shall be consolidated accordingly, as the case may be; and

xiv. That any person interested shall be at liberty to apply to this Tribunal in the above matter for any directions that may be necessary.

As per the aforesaid directions, formal orders in Form No. CAA-7 of Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 be issued after the filing of the Schedule of Properties within three weeks from the date of receiving a certified copy of this order by the petitioners.

All the concerned Regulatory Authorities are to act on a copy of this order annexed with the Scheme duly authenticated by the Registrar of this Bench.

The Company Petition CP (CAA) No. 16/Chd/Hry/2022 is allowed and disposed of accordingly.