2016 (7) TMI 977

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....Kalthia Engineering and Construction Limited proposed under Sections 391 to 394 read with Sections 100 to 103 of the Companies Act, 1956. 2. All the three petitions being necessarily interconnected, they were heard together and are considered simultaneously by this common order. 3. Ms. Vaibhavi Parikh, learned advocate for the petitioner companies submitted that Kalthia Investment Private Limited (KIPL), the First Transferor Company is a private limited company and is primarily acting as a group investment company. It makes inter group investments on a long term basis. It also provides temporary financial support mainly to the group companies by way of short term/medium term loans and advances. It is, thus, basically an investment company of Kalthia Group. R. L. Kalthia Engineering and Automobiles Private Limited (RLKEAPL), the Second Transferor Company is a private limited company and had a dealership of Bajaj Scooters at Bhavnagar and Rajkot. Kalthia Engineering and Construction Limited (KECL), the Transferee Company is a public limited company and primarily engaged in the business of taking up on a contractual basis various civil construction jobs relating to building of r....

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....and sole Unsecured Loan Creditor were dispensed with in view of the written consent letters from all its shareholders and sole unsecured loan creditor, approving the proposed scheme and confirmation of the same by a certified Chartered Accountant, being placed on record. There are no Secured Creditors and Unsecured Trade Creditors of the Second Transferor Company. 7. In respect of the Transferee Company, it has been pointed out that vide an order dated 11th April, 2016, passed in Company Application No. 147 of 2016, filed by Kalthia Engineering and Construction Limited, the Transferee Company, the meeting of the Equity Shareholders of the Company were dispensed with in view of the written consent letters from all its shareholders, approving the proposed scheme and confirmation of the same by the certified Chartered Accountant, being placed on record. The meeting of the Creditors of the Transferee Company was dispensed with, accepting the contention that rights and interests of these creditors are not being adversely affected due to the proposed scheme. 8. Attention of this Court was drawn to Clause 15 of the Scheme, where the restructure of Equity Share Capital of the Transfe....

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....re 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 Clauses 4.10(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 is further clarified that the Transferee Company agrees to absorb all the employees of the Transferor Companies upon scheme coming into effect and therefore no directions are required to be issued. (ii) It has been observed by the Official Liquidator that the affairs of the Transferor Companies have not been conducted in a manner prejudicial to the interest of its members or to ....

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....proposed scheme. Pursuant to the letter by the Directorate, the Income Tax Officer, Ward3( 1) (3), Ahmedabad vide letter dated 17th June, 2016 stated that as per the record of the Incometax Department an amount of Rs. 9,67,661/- has to be recovered from the Transferor Company No. 2 viz. R. L. Kalthia Engineering and Automobiles Private Limited and therefore the Incometax Department has sought direction that the Transferee Company to create provision of Rs. 15 lakhs towards income tax liabilities which also include the liability of interest on the late payment of the above mentioned demand and recast the accounts accordingly. In response to the said observation, the learned counsel for the Petitioner Companies submitted that the Second Transferor Company has vide letter dated 29th June, 2016 justified that there is an anomaly in the order passed by the Incometax Department raising demand to the tune of Rs. 9,67,661/- . Therefore it has preferred a Miscellaneous Application under Section 154 of the Income Tax Act, 1961 for rectification of the mistake, which is pending for process at Central Processing Cell (CPC), Bangalore. Thus once the said anomaly is rectified then there will be ....