TaxTMI 
TaxTMI 
2012 (9) TMI 1035
X X X X Extracts X X X X
X X X X Extracts X X X X
....rivate Limited had filed an application in this Court being Company Application No.208 of 2012 for dispensing with the convening and holding of the meetings of the Equity Shareholders, Preference Shareholder and Unsecured Creditor of the Petitioner Company. It was also prayed that this Court be pleased to dispense with the separate procedure to be followed under the provisions of the Act for the purpose of reduction of Preference Share Capital as the same forms an integral part of the Scheme itself. This Court, vide its order dated 09.05.2012 in Company Application No.208 of 2012, had dispensed with the requirement of holding of the meetings of the Equity Shareholders, Preference Shareholder and Unsecured Creditor in view of the consent affidavits of the Equity Shareholders, Preference Shareholder and Unsecured Creditor. This Court further noted that there are no Secured Creditors of the Petitioner Company. This Court vide its order dated 09.05.2012 further held that no separate procedure is required to be followed for reduction of Preference Share Capital as the same is part and parcel of the present Scheme. 3. The Petitioner of Company Petition No.114 of 2012 i.e. Adtiya Corpex ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....requirement of holding of the meetings of the Equity Shareholders and Unsecured Creditors in view of the consent affidavits of the Equity Shareholders and Unsecured Creditors. This Court further noted that there are no Secured Creditors of the Petitioner Company. 7. The Petitioner of Company Petition No.118 of 2012 i.e. Midex Overseas Limited had filed Company Application No.213 of 2012 in this Court for requisite directions for dispensing with the convening and holding of the meetings of the Equity Shareholders in view of the consent affidavits to the Scheme received from 85.71% in number of the total Equity Shareholders and 99.92% in value and the Unsecured Creditors of the Petitioner Company. This Court, vide its order dated 09.05.2012 in Company Application No.213 of 2012, had dispensed with the requirement of holding of the meetings of the Equity Shareholders and Unsecured Creditors. This Court further noted that there are no Secured Creditors of the Petitioner Company. 8. The Petitioner of Company Petition No.119 of 2012 i.e. Nabh Tradelink Private Limited had filed Company Application No.214 of 2012 in this Court for requisite directions for dispensing with the convening a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rming the publication of notices in the newspapers as directed and also of the notice of the hearing of the petition, served upon the Regional Director as well as the Official Liquidator. 12. Pursuant to the notice to the Official Liquidator in respect of Aditya Corpex Private Limited, Ambitious Tradelinks Private Limited, Anand Trade-Movers (Gujarat) Private Limited, Hinduja Exports Private Limited, Midex Overseas Limited, Nabh Tradelink Private Limited and Surya-Rath Tradelinks Private Limited, seven reports, all dated July 2012, have been filed by the Official Liquidator in Company Petitions Nos.114 to 120 of 2012, respectively. In the said reports, at paragraph 14, it is inter-alia stated by the Official Liquidator that the affairs of the Petitioner Company have not been conducted in a manner prejudicial to the interest of its members or the larger public interest. 13. In response to the notice to the Regional Director, Ministry of Corporate Affairs, the Regional Director has filed his common affidavit dated 28.06.2012. Thereafter, the petitioner Company Milestone Tradelinks Private Limited has filed an affidavit in reply dated 11.07.2012 in response to the common affidavit d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rt,therefore, no direction is required to be issued to the petitioner Transferee company to comply with the requirements of Accounting Standard 14, strictly. 16. Heard Mr. Mihir Joshi, learned Senior Advocate with Ms.Shraddha Sheth for Singhi & Co., on behalf of the Petitioner and Mr.P.S.Champaneri, learned Assistant Solicitor General of India for the Central Government. 17. It is submitted by Mr. Mihir Joshi, learned Senior Advocate, that it is permissible to deviate from the Accounting Standard, as has been held by various Courts, including a Division Bench of this Court. He has referred to the following judgments in support of this submission: (1) Hindalco Industries Ltd., (2009)151 Company Cases 446 (Bombay) (2) Sutlej Industries Ltd., (2007) 135 Company Cases 394 (Rajasthan) (3) Judgment dated 30-07-2012 in O.J.Appeal No.31 of 2012,in the matter of Adishree Tradelinks Pvt.Ltd. 18. Mr.P.S.Champaneri, learned Assistant Solicitor General of India has submitted that the surplus arising out of the Scheme of Amalgamation is of a capital nature, therefore, it cannot be considered as a General Reserve and dividend cannot be paid out of the Capital Reserve. 19. Considerin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....." 22. A Division Bench of this Court, in O.J.Appeal No.31 of 2012 and connected matters, vide judgment dated 30-07-2012 has held as under: "7.6 Considering the various case laws, it is clear that the reserve can be utilized for the purpose of declaring dividends. Since, aforesaid aspect was not pointed out to the learned Counsel for the appellant, either at the time of hearing of the petition or when the matter was kept for dictating the order, in our view, there was no justification in imposing such a condition, while sanctioning the Scheme in connection with nonutilization of amalgamation reserve for the purpose of declaring dividend. Here, it is required to be noted that no objection was taken by the Regional Director to the said clause and even the shareholders have unanimously approved the Scheme with the original Clause-10.5. Considering the same, it cannot be said that incorporation of the said clause is in violation of public policy and as held by various Courts, such amalgamation reserve can be utilized for the purpose of declaring dividends. Even, the learned Single Judge of this Court has, earlier, taken the similar view. In view of the same, the direction given by th....