TaxTMI 
TaxTMI 
2015 (3) TMI 415
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..... 3. Save Healthcare Limited, the First Transferor Company in Company Petition No.63 of 2014 was incorporated on 21/02/1989, as a Private Limited Company in the name of Biodeal Laboratories Private Limited, thereafter its name was changed to Sava Healthcare Private Limited and thereafter it was converted into Public Limited Company and the name Sava Healthcare Limited is the current name under which it stands incorporated. Sava Private Limited, Second Transferor Company in Company Petition No.64 of 2014 was incorporated on 17/09/2009, as a Private Limited Company in the name of Sava Infotech Private Limited, thereafter its name was changed to Sava Private Limited under which it stands incorporated and vide a special resolution the registered office of the Company was shifted from the State of Maharashtra to the State of Gujarat vide a certificate dated 10/05/2013 u/s. 8(3) of the Companies Act, 1956. Anagha Pharma Private Limited, the Transferee Company in Company Petition No.65 of 2014 was incorporated on 25/10/2004, as a Private Limited Company in the name of Anagha Pharma Private Limited under which it stands incorporated and vide a special resolution the registered office of....
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....in the Company Application No.7 of 2014 filed by Sava Healthcare Limited, meetings of the Equity Shareholders and sole Preference Shareholder of the Transferor Company were dispensed with in view of the written consent letters from all the concerned persons being placed on record and substantiated by the certificates of the Chartered Accountant. Separate meetings of the Secured Creditors and Unsecured Creditors were directed to be convened for the purpose of seeking the approval from all the concerned parties to the proposed scheme. Pursuant to the directions issued with regard to the conduct of the meetings, after the due service of individual notice to all the Secured and Unsecured Creditors, as well as after giving public notice, the said meetings were duly convened on 24th February 2014. the proposed scheme was considered at the said meetings and it was approved unanimously at the meeting of the Secured Creditors viz. 100% in number and 100% in value by the Secured Creditors present and voting and the proposed scheme was approved by requisite statutory majority at the meeting of the Unsecured Creditors viz. 86.67% in number and 94.36% in value by the Unsecured Creditors of the ....
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....was dispensed with. Affidavit dated 22nd April, 2014, confirms the same. No one has come forward with any objection to the said petitions even after the publication. The same has been further confirmed by the additional affiavit dated 14th October, 2014. 6.2 Notice of the petitions was served upon the Central Government through Regional Director. Learned Assistant Solicitor General appeared for the Central Government. Common affidavit dated 28th August, 2014, came to be filed by one Mr. Shambhu Kumar Agarwal, the Regional Director. In that common affidavit, the said authority made certain comments and observations. 6.3 In response to the aforesaid common affidavit, one Mr. Anand Choudhary, authorised signatory of all the three companies has filed a common additional affidavit and has dealt with the observations and comments of the Regional Director. 7. Proceeding to consider observations and comments of the Regional Director and the response of the petitioner companies in its additional affidavit mentioned above. 7.1 The first observation of the Regional Director is regarding accounting entries/adjustments as envisaged vide Clause 18 of the Scheme. It has been contended....
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....than permanent employees that are employed by the Transferor companies are as per the contractual obligations and therefore cannot be absorbed by the Transferee company as the validity of the contract is for a specific period. In any case, the employees other than the permanent employees are automatically covered under the Scheme as all the contracts entered into by the Transferor companies which are valid as on the effective date shall be binding on the Transferee company and therefore, this becomes an automatic absorption of all the employees other than permanent employees by the Transferee company. The Clause 4.9(b) and 10 of the Scheme clearly envisages that all the agreement/contracts shall continue in full force and effect in favour of the Transferee company and therefore, it is not required to amend Clause 12 of the Scheme. It was further submitted that the Transferee company undertakes to absorb all the employees of both the Transferor companies upon Scheme coming into effect. Hence, the observations made by the Regional Director is clarified and answered and therefore, there is no need to amend any clause of the Scheme. 7.3 The third observation is in respect of placing....
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....stands negated. 7.5 The fifth observation is regarding the compliance by the Transferee company with respect to Change in the Name. 7.5.1 It was submitted that Clause 19 of the Scheme relates to the Change in the Name of the Company on approval of the Scheme by this Court. The petitioner companies undertake to comply with the relevant provisions of the new Companies Act, 2013 and rules thereto for Change in the Name of the Transferee company upon Scheme coming into effect. 7.6 The sixth observation is regarding the activities carried out by the Company are ultra vires of the Memorandum of Association and the Company should be covered in the category of NBFC as the Company's income during the Financial Year 2011-12 is mainly generated from sources such as interest and dividend income which is an investment activity. 7.6.1 It was submitted that the total revenue of the Transferee company as on 31st March, 2013 is to the tune of Rs. 35.80 crores comprising of Rs. 28.74 crores is from other income including dividend income from the wholly owned subsidiary companies for the year ending on 31st March, 2013. Thus more than 75% of the total income has been derived out of sa....
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....ax Department has not found anything objectionable in the proposed Scheme. The company has agreed to comply with the applicable provisions of the Income Tax Act and rules. 7.8 The Regional Director in its affidavit has observed that as per the said report, no complaint has been received against the petitioner Companies including any complaint/representation against the scheme of amalgamation. 7.9 The Regional Director is in its affidavit vide paragraph 2(m) has observed that the proposed Scheme of Amalgamation is not prejudicial to the interest of the shareholders of the petitioner companies and the public at large. 8. Notices of the petitioner of the Transferor Companies were served upon the Official Liquidator. The Official Liquidator filed his report dated 13th October, 2014. Therein, the Official Liquidator has raised three issues viz. (a) The 'Appointed Date' as proposed under the Scheme, (b) all the employees of the Transferor Companies to be transferred to the Transferee Company and (c) Mismatch of the amount of Authorised Share Capital in the MCA data and the Audited Balance Sheet as on 31.03.2013 of Sava Private Limited. 8.1 The two issues with respect to (a) T....