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Judgment
Sumita Purkayastha, Member (T)
This Joint Application has been filed by the Petitioner Companies under Section 230 to 232 of the Companies Act, 2013 read with the Companies (Compromise, Arrangement and amalgamations) Rules, 2016 and the National Company Law Tribunal Rules, 2016, for the purpose of the approval of the Scheme of Amalgamation. The copy of the Scheme has been placed on record.
From the record, it is seen that the First Motion application seeking direction for dispensing with the meeting of the Shareholders and Creditors of the Petitioner Companies was filed before this bench vide in CA (CAA) 97(ND)/2019 and based on such joint application moved under Section 230-232 of the Companies Act, 2013, it was allowed vide order dated 11.07.2019.
Thereafter, the present Second Motion petition was filed and vide order dated 02.08.2019, Hon'ble Tribunal issued notice to the Regional Director (Northern Region), Registrar of Companies (NCT of Delhi & Haryana), Official Liquidator (New Delhi) and Assessing officer of the Income Tax Department having Jurisdiction and further directed the Petitioner Companies for publication of Notice of petition in the 'Financial Express (English - Delhi Edition) and Jansatta (Hindi - Delhi Edition).
It is seen from the records that petitioners have filed an affidavit dated 12.09.2019 affirming compliance of the order passed by the Tribunal dated 02.08.2019. On perusal of the affidavit discloses that the petitioners have effected the newspaper publication as directed in one issue of the Financial Express (English - Delhi Edition) on 31.08.2019 and Jansatta (Hindi - Delhi Edition) on 31.08.2019 in relation to the date of hearing of the petition.
Further in compliance with the directions issues by this Tribunal, a notice of the petition has also been served to the Regional Director, Northern Region, Registrar of the Companies, Delhi and Haryana, official Liquidator and Income Tax Department in compliance of the order and in proof of the same acknowledgement by the respective offices have also been placed on record.
The Regional Director has filed its representation dated 22.01.2019 wherein, it was observed that in Para 9(i) of the Report, "it has stated that the Scheme of Amalgamation along with proposed share exchange ratio was approved and adopted by the board of directors of these companies at their separate Board Meetings held on 29.04.2019, whereas the valuation report is dated 14.05.2019. Therefore, it is not understood as to how the swap ratio which was prepared on the succeeding date can be approved ahead of its preparation". In this respect, the Petitioner Company vide Affidavit dated 24.02.2019 has stated that vide letter dated 20.12.2019 has clarified to Ld. Regional Director that board of directors of the petitioner companies in its meeting held on 29.04.2019 has approved the draft Valuation Report prepared by M/s. APAS & Co. subject to the approval of shareholders of each petitioner company. Further, the shareholders of each Petitioner Company approved the final version of the same Valuation Report with no amendment. Copy of the letter dated 20.12.2019 is annexed with Affidavit dated 24.02.2020 filed by Petitioner Companies. Further, "the Ld. Regional Director, (NR) in Para 9(ii) has made an observation that the Transferor Company No. 1, 3 and Transferee Company have not filed their complete Financial Statement (AOC-4) for the financial year ended on 31.03.2018 in terms of the provision of Section 137 of the Companies Act, 2013." In this respect, the Petitioner Company vide Affidavit dated 24.02.2019 has stated that after verifying e-records from MCA-21 Portal, the said Companies found that inadvertently 'Note to Schedule 8' was not uploaded, however, the complete Financial Statement (AOC-4) for the financial year ended on 31.03.2018 has been filed before MCA-21 Portal as per Section 137 of the Companies Act, 2013. Copy of the complete Financial Statement (AOC-4) of Transferor Company No. 1, 3 and Transferee Company for the financial year ended on 31.03.2018 are annexed with Affidavit dated 24.02.2020 filed by Petitioner Companies.
The Official Liquidator has filed a report wherein no specific objections have been raised against the approval of the scheme. It is submitted in the report that that the official liquidator has not received any compliant against the proposed Scheme from any person/party interested in the Scheme in any manner and the affairs of the Petitioner Companies do not appear to has been conducted in a manner prejudicial to the interest of its members, creditors or public interest.
The department of the income tax has also filed its report in respect of Petitioner Companies No. 1, 2, 3 and 4. That as per the report submitted by Income Tax Department with respect to Transferor Company No. 1, 2 and 4, no demands have been raised by the Concerned Income Tax Department, Further, the report of Transferor Company No. 3 states that certain Tax Demands i.e. AY 2007-08: Rs. 14,968/-, AY 2010-11: Rs. 25,300/-, AY 2015-16: Rs. 200/-, AY 2017-18: Rs. 9,600/- are pending and therefore, the Transferee Company vide affidavit dated 24.02.2020 undertakes that all the Tax demands pending shall be paid and honoured by the Transferee Company. Further, Transferee Company undertakes to honour all demand of Transferor Companies and/or Transferee Company in accordance with law.
It is seen form the case records that at the time of final hearing on 19.05.2020, the Ld. Counsel for the departments has submitted that the department is satisfied with the response filed by all the petitioner companies.
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 affidavit by the Regional Director, Northern Region, Ministry of Corporate Affairs and the report of the Official Liquidator and, there appears to be no impediment in sanctioning the present Scheme. Consequently, sanction is hereby granted to the Scheme under Section 230 to 232 of the Companies Act, 2013. The petitioner shall however remain to bound to comply with the statutory requirements in accordance with the law.
Notwithstanding the above, if there is any deficiency found or, violation committed qua any enactment, statutory rules and regulation, the sanction granted by this court to the Scheme will not come in any 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, we further clarify that this order should not be construed as an order in any granting exemption from payment of stamp duty, taxes including income tax, GST etc or any other charges, if any, and payment in accordance with law or in respect of any permission/Compliance with any other requirement which may be specifically required under any other law.
THIS TRIBUNAL DO FURTHER ORDER(S):
That in terms of the Scheme:
i. That the transferor companies stand dissolved without being wound up; and
ii. That all the property, rights and powers of all the transferor Companies be transferred without further act or deed, to the Transferee Company and accordingly the same shall pursuant to Section 230 of the Act, be transferred to and vest in the transferee Company for all the estate and interest of the transferor Companies therein but subject nevertheless to all charges now affecting the same; and
iii. That all the liabilities and duties of the Transferor Companies be transferred without further act or deed, to Transferee Company and accordingly the same shall, pursuant to Section 232 of the Act, be transferred to and become the liabilities and duties of the Transferee Company;
iv. That all the proceedings now pending by or against the Transferor Companies by continued by or against the Transferee Company; and
v. All the employees of the Transferor Companies in service on date immediately preceding the date on which the scheme finally take effect shall become the employees of the Transferee company without any break or interruption in their service;
vi. The Petitioner Companies are directed to file a copy of this Order along with a copy of the Scheme of Arrangement with the concerned Registrar of Companies, electronically, along with E-Form INC-28, in addition to the physical copy within 30 days from the date of receipt of copy of the Order from the Registry;
vii. The Order of sanction to this Scheme shall be prepared by the Registry as per the relevant format provided under the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 notified on 14th December, 2016.
viii. Any person interested shall be at liberty to apply to the Tribunal in the above matter for any directions that may be necessary.
ix. Accordingly, the Scheme stands sanctioned and CAA -114/230/232/ND/2019 is allowed.