2022 (6) TMI 624 - Tri - Companies Law

Approval of Amalgamation Scheme: Transfer of Rights, Compliance Confirmed, Synergies Identified

The Tribunal approved the Composite Scheme of Amalgamation between two companies, directing the transfer of properties, rights, and liabilities to the ... Seeking approval of the Composite Scheme of Amalgamation - Section 230 to 232 and other applicable provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- This Tribunal is of the considered view that the scheme as contemplated amongst the petitioner companies seems to be prima facie in compliance with the provisions of the Companies Act, 2013. Further there seems to be no objection on the part of the shareholders that the Scheme is in no way detrimental to the interest of the shareholders of the Company. In view of absence of any other objections having been placed on record before this Tribunal and since all the requisite statutory compliances having been fulfilled, this Tribunal sanctions the Scheme of Amalgamation along with Company Petitions as well as the prayer made therein. The Learned Counsel for the Petitioner Companies submitted that no investigation proceedings are pending against the Transferor or Transferee Companies under the provisions of the Companies Act, 1956 or the Companies Act, 2013 and no proceedings against the petitioner companies for oppression or mismanagement have been filed before this Hon'ble Tribunal or erstwhile Company Law Board - 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 will not come in the way of action being taken, albeit, in accordance with law, against the persons concerned and also the directors and officials of the petitioners. The scheme is approved - company petition are allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether the meetings of equity shareholders, secured and unsecured creditors of the transferor and transferee companies can be dispensed with under Sections 230-232 of the Companies Act, 2013 based on consent affidavits and compliance with Rules. 2. Whether the Composite Scheme of Amalgamation complies with statutory requirements of the Companies Act, 2013 and the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 so as to merit sanction by the Tribunal. 3. Whether the appointed date fixed in the Scheme (ante-dated to more than one year prior to filing) is permissible in view of Section 232(6) read with the Ministry of Corporate Affairs General Circular No. 09/2019 and the RD's objection. 4. Whether any objections or adverse reports from statutory authorities (Regional Director, Official Liquidator, Income Tax Department, RoC and others) preclude sanction of the Scheme. 5. Whether the accounting treatment in the Scheme conforms to applicable Indian Accounting Standards and Section 133 of the Companies Act, 2013. 6. What consequential orders should follow sanction (vesting of assets and liabilities, continuation of proceedings, employee transfer, appointed/effective dates, filing and registration formalities, and preservation of revenue/other rights). ISSUE-WISE DETAILED ANALYSIS Issue 1 - Dispensation of Meetings Legal framework: Sections 230-232 of the Companies Act, 2013 and the Rules govern compromise/arrangement procedure including summons/meeting dispensation where appropriate consents exist. Precedent treatment: Tribunal applied statutory scheme consistent with established practice permitting dispensation where consent affidavits and requisite notices are filed. Interpretation and reasoning: Petitioners obtained consent affidavits and complied with Tribunal directions for notice to statutory/regulatory authorities and newspaper publication; the Tribunal found no material opposition and, on that basis, earlier directed dispensation of meetings. Ratio vs. Obiter: Ratio - meetings may be dispensed with where statutory notices and consents are in order and no objection emerges. Conclusion: Dispensation of meetings under Sections 230-232 was appropriate and accepted as complied with in the record. Issue 2 - Compliance of the Scheme with the Companies Act and Rules Legal framework: Requirements under Sections 230-232 (including vesting, transfer, continuance of suits, employee rights), Rules, and obligation to satisfy public interest and creditor/member protection. Precedent treatment: Tribunal examined scheme parts (definitions, rationale, transfer/vesting, general terms) and statutory auditor certification of accounting treatment; applied standard sanctioning principles. Interpretation and reasoning: After review, Tribunal held scheme prima facie compliant with the Act; no shareholder or creditor objections on record; requisite affidavits, statutory notices and publications made; statutory authority reports raised no insurmountable objections. Ratio vs. Obiter: Ratio - where scheme satisfies statutory conditions, no prejudice to creditors/members and requisite procedural steps are complied with, Tribunal will sanction the scheme. Conclusion: Composite Scheme found to be in compliance and sanctioned. Issue 3 - Validity of Ante-dated Appointed Date vis-à-vis Section 232(6) and MCA Circular No. 09/2019 Legal framework: Section 232(6) (procedural requirement for applications), and General Circular No. 09/2019 clarifying that an appointed date ante-dated beyond one year from filing requires justification and should not be against public interest. Precedent treatment: The RD raised objection that the appointed date (01.04.2019) was ante-dated beyond one year; petitioners relied on filing date to demonstrate compliance with the Circular and invoked pandemic-related exclusion of time per Supreme Court order to justify timing. Interpretation and reasoning: Tribunal analyzed RD's observation and petitioners' reply: (a) Section 232(6) does not itself prescribe a one-year limit; (b) the Circular permits appointed dates beyond a year provided justification and absence of public interest concerns; (c) petitioners produced proof of filing within one year from appointed date and/or relied on pandemic-related exclusion of specified period; (d) RD made no other adverse findings. Ratio vs. Obiter: Mixed - Ratio in this judgment is that an appointed date of 01.04.2019 was acceptable on the facts: petitioners either filed within the one-year window or justified delay consistent with Circular and pandemic exclusions. Obiter - broader doctrinal limits of RD's supervisory role were noted but not expanded. Conclusion: The RD's single observation did not sustain objection to the appointed date; no bar to sanction on this ground was found. Issue 4 - Effect of Statutory Authorities' Reports and Revenue Interest Legal framework: Duty to serve notices on RD, RoC, Income Tax Dept, Official Liquidator; Section 230(5) presumption where no objection is filed; protection of revenue by permitting appropriate recovery proceedings. Precedent treatment: Tribunal treated Official Liquidator's report (no adverse findings) and RD's limited observation; noted absence of Income Tax Department response and accordingly presumed no objection under Section 230(5). Tribunal referenced prior Tribunal practice and judicial pronouncements that revenue's rights to recover are preserved (as applied in earlier NCLT order quoting Vodafone Essar decisions). Interpretation and reasoning: Official Liquidator's investigation revealed nothing prejudicial; auditors certified affairs not conducted against public interest; Income Tax's non-response led to presumption of no objection but Tribunal acknowledged established position that revenue retains rights to pursue recovery by appropriate proceedings despite sanction. Ratio vs. Obiter: Ratio - absence of adverse statutory authority reports and compliance with notice requirements supports sanction; the sanction does not impede revenue's statutory remedies. Obiter - reiteration of authority allowing revenue to initiate recovery proceedings post-sanction. Conclusion: Statutory reports did not preclude sanction; protection of revenue preserved. Issue 5 - Accounting Treatment Compliance Legal framework: Requirement that accounting treatment in scheme be in conformity with Indian Accounting Standards notified under Section 133 and certified by statutory auditors. Precedent treatment: Tribunal relied on statutory auditors' certificates filed by petitioners attesting compliance with applicable accounting standards. Interpretation and reasoning: Auditors certified that accounting treatment conforms to applicable Indian Accounting Standards; Tribunal accepted certification as fulfilment of the statutory requirement. Ratio vs. Obiter: Ratio - auditor certification of accounting treatment in accordance with applicable standards is a determinative compliance factor for sanction. Conclusion: Accounting treatment found compliant; no objection on accounting grounds. Issue 6 - Consequential Orders and Protection of Rights Legal framework: Section 232(3) and related provisions govern transfer/vesting of properties, liabilities, continuation of proceedings, employee rights, filing and registration formalities, and dissolution of transferor upon filing certified order. Precedent treatment: Tribunal issued standard consequential directions: automatic vesting of assets and liabilities in transferee without further act/deed; continuation of pending proceedings by/against transferee; employees to continue without break; appointed and effective dates specified; direction for filing certified copy with RoC and dissolution of transferor on registration; retention of rights for interested persons to apply for further directions. Interpretation and reasoning: Tribunal applied statutory provisions to give practical effect to the sanctioned scheme while explicitly reserving actions under other enactments for any deficiency/violation and disavowing any exemption from stamp duty/tax obligations. Ratio vs. Obiter: Ratio - sanction entails specified statutory consequences; sanction does not confer immunity from other statutory liabilities or taxes and does not bar subsequent lawful action against officers/directors if violations are discovered. Conclusion: Tribunal sanctioned the scheme and issued consequential orders consistent with statutory mandates, subject to preservation of revenue and other lawful rights.