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Judgment
Lakshmi Gurung Member (Judicial)
Heard the Ld. Authorised Representative for Petitioner Companies.
The sanction of this Tribunal is sought under Sections 230 to 232 and other applicable provisions of the Companies Act, 2013 and the Rules framed thereunder for sanction of the Scheme of Amalgamation of CORAL VENTURE PRIVATE LIMITED (First Transferor Company or First Petitioner Company), ADITYA FINANCIAL CONSULTANTS PRIVATE LIMITED (Second Transferor Company or Second Petitioner Company), SRADDAH VYAPAAR PRIVATE LIMITED (Third Transferor Company or Third Petitioner Company), with and into RATHORE ORGANIC PRODUCTS PRIVATE LIMITED (formerly known as Twinstar Multi Trade Private Limited, (Transferee Company or Fourth Petitioner Company) and their respective shareholders (‘Scheme’).
The Boards of Directors of the Petitioner Companies have approved the said Scheme of Amalgamation by passing the Board resolutions in their respective Board meetings held on 01.10.2022 which are annexed to the Company Scheme Petition.
The Appointed Date is 1st April 2023.
Nature of Business:
5.1. The Transferor Companies are engaged in the business of providing consultancy and advisory services.
5.2. The Transferee Company is engaged in business of manufacturing Organic products.
The registered offices of the Petitioner Companies are situated in Mumbai, Maharashtra and hence the subject matter of the Petition is within the jurisdiction of this Bench.
The shares of the Petitioner Companies are not listed on any stock exchange.
Rationale of the Scheme:
The Applicant Companies submit that the rationale for the Scheme is as under:
a. The Transferor Companies and the Transferee Company are owned and controlled by the same management i.e. Directors and promoters belong to the same family.
b. The Transferor and Transferee Companies are willing to merge into a single entity to eliminate the same shareholders holding shares in all the Applicant Companies into one single holding in the Transferee Company.
c. The Transferor Companies do not have any significant business activities due to challenging economic conditions and slowdown in domestic economy.
d. The amalgamation of all the Transferor Companies into the Transferee Company shall facilitate consolidation of all the undertakings enabling effective management and unified control of operations. This would enable streamlining the activities and consequently reducing managerial overlaps by reducing the number of Companies under the same Management and thus lead to reduction in administration efforts.
e. It would be advantageous to combine the activities and operations of all the four Companies into a single Company for leveraging financial and operational resources and reflecting stronger financial position and for the benefit of lesser compliance issues as the Companies are engaged in similar businesses thereby reduction in Statutory Compliance and other related cost of the combined entity.
Ld. PCS submits that, the Company Petition is filed in consonance with Sections 230 to 232 of the Act along with the order dated 05.01.2023 passed in CA (CAA) No. 271/(MB)/2022 of this Tribunal. The Petitioner Companies have complied with all requirements as per directions of the Tribunal and have filed necessary affidavits of compliance with the Tribunal. Moreover, the Petitioner Companies undertake to comply with all statutory/regulatory requirements, if any, as required under the Act and the Rules made thereunder. The undertaking given by the Petitioner Companies is accepted.
Consideration:
The Scheme envisages that upon the Scheme becoming effective,
10.1. The Transferee Company shall issue and allot 8 (Eight) Equity shares of Rs. 10/- (Rupees Ten Only) each credited as fully paid-up in the capital of the Transferee Company for every 100 (Hundred) Equity Shares of the face value of Rs. 1/- (Rupees One only) each held by the Shareholders of the First Transferor Company.
10.2. The Transferee Company shall issue and allot 20 (Twenty) Equity shares of Rs. 10/- (Rupees Ten Only) each credited as fully paid-up in the capital of the Transferee Company for every 100 (Hundred) Equity Shares of the face value of Rs. 10/- (Rupees Ten only) each held by the Shareholders of the Second Transferor Company.
10.3. The Transferee Company shall issue and allot 22 (Twenty-Two) Equity shares of Rs. 10/- (Rupees Ten Only) each credited as fully paid-up in the capital of the Transferee Company for every 100 (Hundred) Equity Shares of the face value of Rs. 10/- (Rupees Ten only) each held by the Shareholders of the Third Transferor Company.
The meetings of the Shareholders and Unsecured Creditors of Petitioner Companies were dispensed with by the Tribunal vide order dated 05.01.2023 on account of consent affidavits of shareholders and Unsecured Creditors. Further, there were no secured creditors in the Petitioner Companies, so question of convening the meeting did not arise.
The Regional Director, Western Region on behalf of the Central Government has filed its Report dated 21.06.2023 (‘RD Report’) with observations in paragraphs 2(a) to 2(h). In response to the said observations, the Petitioner Companies have given undertakings and clarifications vide affidavit dated 03.07.2023. Some observations are mere factual or routine in nature. Important observations from RD Report are reproduced in italics and the clarifications and undertakings in reply are reproduced in italic, bold:
2(a)(ii)
a. In compliance of AS-14 (IND AS-103), the Petitioner Companies shall pass such accounting entries which are necessary in connection with the scheme to comply with other applicable Accounting Standards such as AS-5(IND AS-8) etc.
2(a)(ii)(a) -The Petitioner Companies undertakes to comply with AS-14 or IND AS-103 and such applicable accounting standards for Amalgamation and as per other applicable provisions of the Companies Act, 2013 while passing necessary entries in connection with the Scheme including AS-5 or IND AS-8 as applicable.
b. As per Definition of the Scheme, "Appointed Date" means April 01, 2023 or such other date, directed by or stipulated by the Mumbai bench of National Company Law Tribunal or any other competent authority may otherwise direct/fix; And "Effective Date" means the last of the dates on which the certified or authenticated copies of the order sanctioning this Scheme passed by the Mumbai bench of the National Company Law Tribunal is filed with the Registrar of Companies, Mumbai, Maharashtra, by the Transferor Company and the Transferee Company as required under the provisions of the Companies Act. Any reference in this Scheme to the date of "coming into effect of this Scheme" or "the Scheme coming into effect" or "Scheme becoming effective" shall mean the Effective Date;
In this regard, it is submitted that Section 232 (6) of the Companies Act, 2013 states that the scheme under this section shall clearly indicate an appointed date from which it shall be effective and the scheme shall be deemed to be effective from such date and not at a date subsequent to the appointed date. However, this aspect may be decided by the Tribunal taking into account its inherent powers. The Petitioners may be asked to comply with the requirements as clarified vide circular no. F. No. 7/12/2019/CL-I dated 21.08.2019 issued by the Ministry of Corporate Affairs.
2(b) The Petitioners Companies confirms that the definition “Appointed Date” means 1st April, 2023. Further, Clause 4.2 of the Scheme specifies that the appointed date shall be 1st April, 2023. Further, the Petitioners confirms that the “Effective Date” shall be the last of the dates on which certified or authenticated copies of the Orders of the National Company Law Tribunal, Mumbai sanctioning the scheme are filed with the Registrar of Companies by the Transferor and Transferee Company.
c. Petitioner Company have to undertake to comply with section 232(3)(i) of Companies Act, 2013, where the transferor companies is dissolved, the fee and stamp duty paid by the transferor companies on its authorised capital shall be set-off against fees and stamp duty payable by the transferee company on its authorised capital subsequent to the amalgamation and therefore, petitioners to undertake that the transferee company shall pay the difference of fees and stamp duty.
2(c) The Transferee Company undertakes to comply with the provisions of Section 232(3)(i) of the Companies Act, 2013 with respect to payment of differential fees in the increased Authorised Share Capital and would pay the differential fees, if any.
d. The Tribunal may kindly seek the undertaking that this Scheme is approved by the requisite majority of members and creditors as per Section 230(6) of the Act in meetings duly held in terms of Section 230(1) read with 7 sub-section (3) to (5) of Section 230 of the Act and the Minutes thereof are duly placed before the Tribunal.
2(d) The Petitioner Companies states that the meetings of members and creditors were dispensed with by the Tribunal vide its Order dated 05th January, 2023. Therefore, the requirement of holding the meetings and furnishing the minutes thereof are not applicable in the present matter.
e. The Petitioner Company states that the Transferee Company shall be in compliance with provisions of Section 2(1B) of the Income Tax Act, 1961. In this regard, the petitioner company shall ensure compliance of all the provisions of Income Tax Act and Rules thereunder;
2(e) the Petitioner Companies undertakes the compliance of all provisions of the Income Tax Act, 1961 including any direction of the Income Tax department, if any in accordance with the law.
f. In the Balance Sheet of Transferor Company 1, Transferor Company 2, Transferor Company 3 and Transferee Company as on 31.03.2022, Security Premium of Rs. 20,12,57,100/-, 18,51,52,500/-, 5,60,36,400/-, and 3,92,24,500/- respectively are showing, details of the same are, as under:
CORAL VENTURE PRIVATE LIMITED
Date of allotment
Name of Allottees
No of shares
Par value
Premium per share
Security premium
31-03-2008
Saisahara Commercial Pvt Ltd
35000
1
99
3465000
31-03-2008
Nirnidhi Consultants Pvt Ltd
55000
1
99
5445000
31-03-2008
Risewell
Suppliers Pvt Ltd
120000
1
99
11880000
31-03-2008
Warner
Multimedia Limited
60000
1
99
5940000
31-03-2008
JMD Sounds Limited
100000
1
99
9900000
31-03-2008
Prominent
Vyapaar Pvt Ltd
30000
1
99
2970000
31-03-2008
Sainath Dealcom Pvt
Ltd
110000
1
99
10890000
31-03-2008
Prime capital
Market Limited
75000
1
99
7425000
31-03-2008
Sairam Dealcom Pvt Ltd
155000
1
99
15345000
31-03-2008
Mooncity
Merchandies Pvt Ltd
40000
1
99
3960000
31-03-2008
Saisahara
Vyapaar Pvt Ltd
70000
1
99
6930000
31-03-2008
Kumaon
Engineering Co. Pvt Ltd
75000
1
99
7425000
31-03-2008
Rohtang
Commcercial Pvt Ltd
80000
1
99
7920000
31-03-2008
Bahar
Merchants Pvt Ltd
200000
1
99
19800000
31-03-2008
sairam
commercial Pvt Ltd
100000
1
99
9900000
31-03-2008
Albright
Consultants Pvt Ltd
165000
1
99
16335000
31-03-2008
Godawari
Commerce PVt Ltd
90000
1
99
8910000
31-03-2008
Reward Advisory Pvt
Ltd
100000
1
99
9900000
31-03-2008
Sai Vyapaar Pvt Ltd
100000
1
99
9900000
31-03-2008
Sainam
Commrecial Pvt Ltd
4000
1
99
396000
31-03-2008
Select Infinlease Pvt Ltd
18900
1
99
1871100
31-03-2008
Tridev Multitrade Pvt
Ltd
100000
1
99
9900000
31-03-2008
Sital Mercantile
& Credit Pvt Ltd
50000
1
99
4950000
31-03-2008
Seashell
Venture Pvt Ltd
75000
1
99
7425000
31-03-2008
Meadow Venture Pvt Ltd
25000
1
99
2475000
2032900
201257100
ADITYA FINANCIAL CONSULTANTS PRIVATE LIMITED
Date of issue
Name Of Allotte
No of shares
Par value
Premium Per Share
Security Premium
31-03-2008
Bhaneshwari
Dealcomm Pvt Ltd
1750
10
390
682500
31-03-2008
Classic Advertising &
Services Pvt Ltd
12750
10
390
4972500
31-03-2008
Dhirendra Merchants Pvt ltd
14000
10
390
5460000
31-03-2008
Doon valley
Commvercial Pvt Ltd
16250
10
390
6337500
31-03-2008
Ganpati DealcomPvt Ltd
23750
10
390
9262500
31-03-2008
Gulmohar Enclave
Pvt Ltd
19875
10
390
7751250
31-03-2008
Gulmohar Tower Pvt Ltd
32000
10
390
12480000
31-03-2008
Harish Tie-Up Pvt Ltd
12625
10
390
4923750
31-03-2008
Majestic Commercial Pvt Ltd
15000
10
390
5850000
31-03-2008
Manish Merchants
Pvt ltd
18250
10
390
7117500
31-03-2008
Mateshwari Estates Pvt Ltd
20000
10
390
7800000
31-03-2008
Mayukh
Constructions Pvt ltd
6125
10
390
2388750
31-03-2008
Orchid Merchants pvt Ltd
10375
10
390
4046250
31-03-2008
Pawan Putra Advertising Pvt Ltd
24000
10
390
9360000
31-03-2008
Prime Tracom Pvt ltd
5250
10
390
2047500
31-03-2008
Pushpanjali Projects Pvt Ltd
15000
10
390
5850000
31-03-2008
Sahashi Jyoti Tectiles Pvt Ltd
27625
10
390
10773750
31-03-2008
Shreeradhe Tea Plantation Pvt Ltd
36250
10
390
14137500
31-03-2008
Sparl Impex Pvt ltd
3750
10
390
1462500
31-03-2008
Sriram Dealcom
Pvt Ltd
2000
10
390
780000
31-03-2008
Swagatam Financial Consultants Pvt Ltd
10750
10
390
4192500
31-03-2008
Tanish Infotech Pvt Ltd
18250
10
390
7117500
31-03-2008
Tanish Tradecom Pvt Ltd
41750
10
390
16282500
31-03-2008
Tirupati Mansion Pvt Ltd
10000
10
390
3900000
31-03-2008
Trimurty Advisory
Services Pvt Ltd
32500
10
390
12675000
31-03-2008
Vishkha Technology Pvt Ltd
19875
10
390
7751250
31-03-2008
Yogita Developers Pvt Ltd
25000
10
390
9750000
474750
185152500
SRADDAH VYAPAAR PRIVATE LIMITED
Date of allotment
Name Of Allotte
No Of Shares
Par Value
Premium Per Share
Security Premium
31-03-2008
Elishan Esates Pvt Ltd
3000
10
490
1470000
31-03-2008
Buskinath Design
Private Limited
5000
10
490
2450000
31-03-2008
Bimex Exports Pvt Ltd
3000
10
490
1470000
31-03-2008
Fastner Mercantile Pvt Ltd
10000
10
490
4900000
31-03-2008
Gajbadan Advisory Services Pvt Ltd
2000
10
490
980000
31-03-2008
Goodfaith Cement
Pvt Ltd
3400
10
490
1666000
31-03-2008
Growth Commodities Pvt Ltd
2000
10
490
980000
31-03-2008
Joyprit Hotel Pvt Ltd
1400
10
490
686000
31-03-2008
Kolkata Trexim Pvt Ltd
10000
10
490
4900000
31-03-2008
Marudhar Vyapaar Pvt Ltd
11000
10
490
5390000
31-03-2008
Prospect TIE-UP Pvt Ltd
6000
10
490
2940000
31-03-2008
Sanyam Mercants Pvt Ltd
7600
10
490
3724000
31-03-2008
Sarthak Traders Pvt Ltd
20000
10
490
9800000
31-03-2008
Shivratri
Commodities Pvt Ltd
4000
10
490
1960000
31-03-2008
Sristi Developers Pvt Ltd
8300
10
490
4067000
31-03-2008
Sukant Steel Pvt
Ltd
4400
10
490
2156000
31-03-2008
Sunlight Financial
Advisory Pvt Ltd
2060
10
490
1009400
31-03-2008
Tuticorin Trexim Pvt Ltd
200
10
490
98000
31-03-2008
Vinayak Financial Consultants Pvt Ltd
10000
10
490
4900000
31-03-2008
Mansukh Consultancy
Services Pvt Ltd
1000
10
490
490000
114360
56036400
RATHORE ORGANIC PRODUCTS PRIVATE LIMITED
Date of allotment
Name Of Allotte
No. of Shares
Par Value
Premium Per Share
Security Premium
30-03-2007
Ram Avatar
Prajapati
500
10
490
245000
30-03-2007
Bayanwala
Brothers Pvt. Ltd
10000
10
490
4900000
30-03-2007
Sargam Tradelink Pvt.
Ltd
10000
10
490
4900000
30-03-2007
Sital Mercantile Co
Pvt. Ltd
20000
10
490
9800000
30-03-2007
Reward
Commodity Pvt Ltd
20000
10
490
9800000
30-03-2007
Saltlake Vaypaar Pvt
Ltd
10000
10
490
4900000
30-03-2007
Godawari Commercial
Pvt Ltd
10000
10
490
4900000
80500
39445000
In view of the above, if agreed, NCLT may ask the petitioners to clarify that Income Tax Department has properly assessed the increase of share capital from time-to-time u/s. 68 of the Income Tax Act, 1961 payment of Income Tax by existing shareholders, if they who have purchased shares at lower price than issued price from above allotees or seek the reply from Income tax department about issue of share capital at high premium through accommodation entries.
It is further submitted that CBDT vide circular dated 17.03.2023 (Copy Enclosed) appointed following nodal officer for income tax department for the Region of Mumbai & Goa, which is as follows:-Pr. CCIT, Mumbai Address:- 3rd Floor, Aayakar Bhawan, Maharishi Karve Road, Mumbai - 400020. Phone No. 022-22017654 Email:- Mumbai.pccit@incometax.gov.in
2(f) The Petitioner Companies submits that the Regional Director has raised issues which pertain to the financial year 2008-09 and 2007-08 respectively of which the income tax assessments have already been completed. Further the issues raised by the Regional Director is time barred under section 149 of the Income Tax Act. 1961. Further, there are no outstanding dues payable to the Income Tax Department by both the Petitioner Companies. Copies of screenshot of the Income tax login ID of the respective Companies showing the No dues are annexed herewith as Annexure A. It is further submitted that the Scheme already provides that all the assets and liabilities of Transferor Company shall vest in the Transferee Company upon Amalgamation which is also a very well settled law. Furthermore, the Petitioner Companies also undertakes to comply with all the provisions of the Income Tax Act, 1961 including provisions of section 2(1B) of the Income Tax Act.
g. It is observed from latest MGT-7 for the year ending 31.03.2022 filed by the petitioner companies that transferor companies has following corporate body shareholders having more than 10% shareholding, but form Ben-2 has not been filed:-
Name of the Company
Name of the shareholder
Percentage of shareholding
Status of Ben-2
Aditya Financial Consultants Private Limited (Transferor Company 2)
Coral Venture Pvt Ltd
43.86%
Not Filed
Twinstar Multi Trade Pvt Ltd
56.14%
Not Filed
Sraddah Vyapaar Private Limited (Transferor Company 3)
Coral Venture Pvt Ltd
44.87%
Not Filed
Twinstar Multi Trade Pvt Ltd 55.13%
Not Filed
Therefore, petitioner company may be directed to clarify and comply with the same as required u/s. 90 of the Companies Act, 2013 r.w. companies (Significant Beneficial Owners) Rules, 2018.
2(g) The Petitioner Companies submit that the Form BEN-2 for the Transferor Company No. 2 has been filed vide SRN F62126446 and F62102819; for the Transferor Company No. 3 has been filed vide SRN F62127030 and F62126776 and a copy of the Form as filed on the MCA Portal is annexed hereto and marked as Annexure- B.
h. That on examination of the report of the Registrar of Companies, Mumbai dated 16.05.2023 (Annexed as Annexure A-1)) that all the Petitioner Companies fall within the jurisdiction of ROC, Mumbai. It is submitted that no complaint and /or representation regarding the proposed scheme of Amalgamation has been received against the Petitioner Companies. Further, the petitioner companies have filed Financial Statements up to 31.03.2022 further observations in ROC report are as under:
i. That the ROC Mumbai in his report dated 09.05.2023 has stated that no Inquiry, inspection, investigation & prosecution is pending against the subject applicant companies except Transferor Company 2 namely Aditya Financial Consultants Private Limited against which inquiry is pending.
2(h)(i) The Petitioner Companies states that, the Petitioner Company has not received any notice for pending inquiry. Further, any inquiry against the Petitioner Company which has not come to our notice up to this stage and if anything arises or observed post approval of scheme of amalgamation even in the name of transferor companies would be considered.
ii. The Transferor Company is having below mentioned Charge with the Status as "OPEN"
Assets under Charge
Charge
Amount
Date of
creation
Status
Lien of FD Account No.:
918040059908766
500000
16-07-2018
OPEN
Lien of FD Account No.:
919040050164025
1064791
20-07-2019
OPEN
Lien of FD Account No.:
918040059908766
1500000
16-07-2018
OPEN
100% in form of TDR with Banks
lien noted thereon
12000000
31-03-2022
Open
2(h)(ii) Petitioner Companies states that the “OPEN” Charge of Transferor Company would be transferred and reflect on the Index of Charge of the Transferee Company once the Form INC 28 of Transferee Company is approved.
iii. As per available information with this office the Transferor Company 2 is under Inquiry & pending.
2(h)(iii) The Petitioner Companies states the same is self-explanatory and does not require explanation.
iv. The Transferor Company No. 1 is having Long Term Borrowings as per note 3 attached to Financial Statement as at 31/03/2022 as Unsecured but considered good from Directors of Rs. 99,25,000/ & other of Rs. 98,66,851/-
2(h)(iv) The Petitioner Companies states that, the Long term Borrowings of the Transferor Company No. 1 would be transferred and reflect in the Financial Statement of the Transferee Company once the Form INC 28 of Transferee Company is approved.
v. The Transferor Company No. 2 is having Short Term Loans and Advances as per note 7 attached to Financial Statement as at 31/03/2022 as Loans from others of Rs. 2,06,20,195/-. Further the company is under Inquiry follow up process.
2(h)(v) The Petitioner Companies states that, the Short term loans and advances of the Transferor Company No. 2 would be transferred and reflect in the Financial Statement of the Transferee Company once the Form INC 28 of Transferee Company is approved.
vi. The Transferor Company No. 3 is having Long term Borrowings as Anukumar Rathore as per note 3 attached to Financial Statement as at 31/03/2022 of Rs. 37,21,000/- who is a Director of the Company. However, the name as per Master Data & its Financial Statement appears to vary from each other.
2(h)(vi) The Petitioner Companies states that, the Long term Borrowings of the Transferor Company No. 3 would be transferred and reflect in the Financial Statement of the Transferee Company once the Form INC 28 of Transferee Company is approved. Further, change in the name of the Director Anukumar Rathore on the Master Data and Financial Statement, it is typological mistake in the Financial Statement, whereas Mr. Anukumar Rathore, Director of the Petitioner Company No. 3 is one and the same.
vii. As.
viii. As per the provisions of Section 232(3)(i) of the Companies Act; 2013, where the transferor Company is dissolved, the fee, if any, paid by the transferor Company on its authorized capital shall be set-off against any fees payable by the Transferee company on its authorized capital subsequent to the amalgamation. Therefore, remaining fee, if any after setting-off the fees already paid by the transferor company on its authorized capital, has to be paid by the transferee Company on the increased authorized capital subsequent to the amalgamation
2(h)(viii) The Transferee Company reiterates that it would comply with the provisions of Section 232(3)(i) of the Companies Act, 2013 with respect to payment of differential fees and would pay the differential fees, if any.
ix. Interest of the Creditors should be protected.
2(h)(ix) The interest of creditors shall be protected at all times.
RD during hearing dated 24.08.2023 submitted that certain inquiry is being conducted in case of Second Transferor Company which is pending. The matter was adjourned from time to time on the request of the RD on account of pending inquiry. Finally Regional Director (WR) filed Additional Affidavit dated 05.02.2024, inter alia stating therein that Inquiry Report has been submitted by the Inquiry Officer, Registrar of Companies, Mumbai and directed the Directors of the Second Transferor Company and Transferee Company to undertake, that any proceedings arising out of the said inquiry in near future shall be enforced against Transferee Company.
In response to the above the Directors of Transferor Company 2 and Transferee Company have filed an Affidavit in Supplementary Rejoinder dated 08.02.2024 undertaking that any notices or order or adjudication notices issued in the name of Transferor Company no 2 in the near future, shall be enforced against the Transferee Company and same shall be complied by the Transferee Company, and its directions.
During hearing on 13.02.2024, Mr. Bhagawati Prasad, Assistant Director for RD (WR) submits that he has no further objection/ objections for the scheme.
The Official Liquidator has filed Report dated 11.07.2023 inter-alia making the following observations in paragraphs 10 and 11 which is reproduced hereunder:
“10. From the Assets and Revenue of the Coral Venture Private Limited (1st Transferor Company) as at 31.03.2022 it appears to be a deemed NBFC. There may be applicability of provisions of Section 45-IA of Reserve Bank of India Act. Tribunal may require the Company to clarify on this.
From the Financial statement as at 31/03/2022 of Transferor Companies it is found that companies have taken loan from Directors. In terms of proviso to clause (viii) sub rule (c) of Rule 2 of Companies (Acceptance of Deposit) Rules, 2014 a declaration needs to be given to the effect that, that such amount is given from own fund and not being given out of funds acquired by him by borrowing or accepting loans or deposits from others and the same has to be disclosed in the Board Report. Tribunal may require the Transferor Company to produce a copy of such declaration and extract of Board Report where such disclosure has been made.”
The Petitioner Companies in their reply vide Rejoinder dated 26.07.2023 to the report of Official Liquidator have submitted as under:
17.1. The Transferee Company has changed its main object clause from "distribution of chemical, textile products and related activities" to "produce, prepare and deal in processed foods, organic foods" vide passing Special Resolution dated June 6, 2022. A copy of the certificate for change in object clause is annexed to the Rejoinder in respect of Report of OL.
17.2. The Transferee Company applied for FDA/FSSAI license for carrying out the said object. The Food and Drug Administration, Maharashtra has issued registration certificate dated 17th October, 2022 to carry on the Yausiness of Food Additives. It is further submitted that the Transferee pany is in process of setting up the requisite infrastructure for carrying he said business. A copy of the license issued by FDA, Maharashtra is annexed to the Rejoinder in respect of Report of OL.
17.3. The Transferee Company would commence the business of Food Additives very soon and would come out of the criterial of deemed NBFC in near future and therefore the provisions of Section 45-IA of Reserve Bank of India will not apply to Transferee Company.
17.4. It is further submitted that Notice was also served upon the Reserve Bank of India, Legal Department by hand delivery on July 19, 2023. Copy of the proof of service by Hand Delivery is annexed to the Rejoinder in respect of Report of OL.
17.5. As observation made in Para 11 of the report of Official Liquidator is concerned, copies of the declaration as received from Directors stating that the loans advanced to the Companies have been given out of their own funds and not from borrowed funds are annexed to the Rejoinder in respect of Report of OL.
Thus, the Petitioner Companies have taken care of the Observations/ Clarifications sought by Official Liquidator.
No objections have been received by the Tribunal opposing the Company Scheme Petition and nor has any party controverted any averments made in the Company Scheme Petition.
The Statutory Auditors of the Transferee Company have examined the Scheme in terms of provisions of Sections 230-232 and certified that the accounting treatment specified in the Scheme is in compliance with all applicable accounting standards specified under section 133 of the Companies Act, 2013.
The Income Tax Department will be at liberty to examine the aspect of any tax payable because of this scheme including Securities Premium Accounts in accordance with the law and it shall be open to the income tax authorities to take necessary action as permissible under the Income Tax Law.
Further, effectiveness of this Scheme shall not deter any regulatory authorities to initiate action, proceedings, prosecution, investigation or any regulatory action against the Petitioner Companies and the Second Petitioner Company. The Second Petitioner Company has undertaken that all such proceedings shall continue in its own name.
The shareholders and creditors of the Petitioner Companies are the best judges of their interest. Their decision should not be ordinarily interfered with by the Tribunal as per the decision of Hon’ble Supreme Court in Miheer H. Mafatlal vs. Mafatlal Industries Ltd [JT 1996 (8) 205] wherein it was held as follows:
“It is the commercial wisdom of the parties to the scheme who have taken an informed decision about the usefulness and propriety of the scheme by supporting it by the usefulness and propriety of the scheme by supporting it by the requisite majority vote.”
From the material on record, the Scheme to the Company Scheme Petition appears to be fair and reasonable and is not violative of any provisions of law and is not contrary to public policy.
ORDER
The Scheme annexed at Annexure A to the Company Scheme Petition is
hereby sanctioned, and the Appointed date of the scheme is 1st April
2023. Following directions are issued:
a) The Transferor Company be dissolved without winding up.
b) The Petitioner Companies are directed to file a certified copy of this Order along with a copy of the Scheme of Amalgamation with the concerned Registrar of Companies, electronically in e-Form INC-28 within 30 days from the date of receipt of the Certified copy of the Order from the Registry.
c) The Petitioner Companies to lodge a copy of this Order and the Scheme duly authenticated by the Registrar with the concerned Superintendent of Stamps, for the purpose of adjudication of stamp duty payable, if any, within 60 days from the date of receipt of the Certified copy of the Order from the Registry.
Petitioner Companies are also directed to serve copy of this order to Income Tax Department, Nodal Officer, GST (if applicable).
While approving the Scheme, we clarify that this Order should not, in any way, be construed as an Order granting exemption from payment of stamp duty, taxes or other charges, if any, and payment in accordance with law or in respect of any permission or compliance with other requirements which may be specifically required under any law.
The Petitioner Companies shall comply with all the undertakings given by them.
The Petitioner Companies shall take all consequential and statutory steps required under the provisions of the Act in pursuance of the Scheme.
All the employees of the Transferor 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 Transferee Company on such date, without any break or interruption in service and upon terms and conditions not less favourable than those subsisting in the concerned Transferor Company on the said date.
Any legal proceedings now pending by or against the Transferor Company be continued by or against the Transferee Company. The legal proceedings whether civil or criminal, if any of whatsoever nature shall not abate as a result of the present Scheme of Amalgamation and shall be taken over by the Transferee Company.
All the properties, rights, liabilities, duties and powers of the Transferor Company, be transferred without further act or deed, to the Transferee Company and accordingly the same shall, pursuant to Section 232 of the Companies Act, 2013, be transferred to and vest in the Transferee Company.
The Registrar of Companies is entitled to proceed against the Transferee Company for violation/offences committed by Transferor Company, if any.
All authorities concerned to act on a copy of this Order along with Scheme duly authenticated by the Registrar.
Any person interested shall be at liberty to apply to this Tribunal in the above matter for any directions that may be necessary.
Any concerned authorities are at liberty to approach this Tribunal for any further clarification as may be necessary.
Ordered Accordingly. Thus, the Company Scheme Petition with C.P. (CAA) /67/ MB/C-III/2023 in CA (CAA)/271/MB/C-III/2022 shall stand to be disposed of.