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2019 (3) TMI 1647
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....ns are as follows: i) The object of this Petition is to obtain sanction of this Hon' ble Tribunal to the Scheme of Arrangement of Ad2pro Media Solutions Private Limited (Transferor Company) with Ad2pro Global Creative Solutions Private Limited (Transferee Company) and their respective shareholders and creditors. ii) The Applicant Company/Transferor hereinafter also referred to as the "Transferor Company" was incorporated on 25th October 2006 under the name and style "Ad2pro Media Solutions Private Limited', with the Registrar of Companies, Bangalore and it currently bears cm U72300KA2006PTC040779. The Registered office of the Transferor Company is situated at 2nd Floor, No. 10, Bannerghatta Road, Bengaluru - 560 078. iii) The authorised, issued subscribed and paid-up share capital of the Transferor Company as on February 02, 2018, was as follows: Authorised Capital Amount in INR 20,00,000 Equity shares of Rs. 10/- each 2,00,00,000/- 12,50,000 Optionally Convertible Preference Shares of Rs. 10 each 1,25,00,000/- Total 3,25,00,000/- Issued, Subscribed and Paid-Up Capital Amount in INR 15,91,543 Equi....
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.... and technology solutions to the world's leading brands and media companies, etc. viii) The Board of Directors of the Transferor has approved and adopted the Scheme of Arrangement of Ad2pro Media Solutions Private Limited (Transferor Company) with Ad2pro Global Creative Solutions Private Limited (Transferee Company) at its meeting held on 16th March, 2018. The Board of Directors of the Transferee Company has approved and adopted the Scheme of Amalgamation of Ad2pro Media Solutions Private Limited (Transferor Company) with Ad2pro Global Creative Solutions Private Limited (Transferee Company) at its meeting held on 16^th March, 2018. 3. The Transferor Company and the Transferee Company had separately filed the Company Application No. (CAA) 37/BB/2018 and Company Application No. (CAA) 35/BB/2018 before this Tribunal for seeking convening of meetings of the shareholders and unsecured creditors. This Tribunal vide its separate orders dated 13^th July, 2018 dispensed with the meeting of shareholders and creditors of the Transferee Company as well as the shareholders of the Transferor Company and ordered for the meetings of the Secured and Unsecured Creditors of Transferor....
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....or shall appoint other Chartered Accountant by cancelling the appointment of the Chartered Accountant. 7. The Registrar of Companies, Karnataka has filed the observations dated 31.10.2018 making the following observations: i. As per Section 232(6) of the Companies Act, 2013, the Scheme shall clearly indicate a date from which it shall be effective. Though in the Scheme appointed date is mentioned as 01.02.2018, no effective date is mentioned. ii. Clause No. 18 of the Scheme mentioned that the scheme shall be effective from the Appointed date i.e., 01/02/2018, but clause No. 4.5 states contradictorily, which states that the effective date means the last of the dates on which the certified true copies of the order of the Tribunal(s) sanctioning the scheme are filed with the Registrar of Companies. In view of the provisions of section 232(6) of the Companies Act, 2013, which states that the scheme shall clearly indicate an appointed date from which it shall be effective and the scheme shall be deemed to be effective from such date and not at a date subsequent to the appointed date, Clause No. 1.4 of the present scheme needs either deletion or modification....
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....r Company have filed reply Affidavit dated 18^th December, 2018 and 19^th December 2018 respectively, in furnishing response to the affidavits by ROC, as follows:- (i) Para 32(1): the Scheme will be effective from Appointed Date which is 01.02.2018. The Petitioner undertakes to comply with provisions of Section 232(6) of the Companies Act 2013 and the amalgamation of Ad2pro Media Solutions Private Limited with Ad2pro Global Creative Solutions Private Limited (the 'Transferee Company') shall be deemed to be effective from 01.02.2018. (ii) Para 32(2): the audited financial statements as on 31 March 2018 of the Petitioner Company are attached. (iii)Para 32(3): The Related Party Transactions in 2015-16 and 2016-17 have been made at arm's length in the ordinary course of business. The requirements of the Companies Act have been met up with and separate compliances are not required under Section 188 of the Companies Act, 2013. (iv) Para 32(4): That the Petitioner Company undertakes to pay the differential fee and the stamp duty, as may be applicable to any increase in authorised share capital as per Section 232(3)(i) of Companies Act, 2013,....
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....ion 232(3)(i) of the Companies Act, 2013 transferee company has to pay the differential fee if any after setting off the fee already paid by the transferor company on it, and transferee company shall give an undertaking accordingly to this effect before the Hon'ble Tribunal. (iv) As per the Independent Auditor's report for the year 2016-17 of the Transferor Company has disputed dues payable to tax authorities for assessment years 2012-13 to 2015-16. Transferee Company is required to give an undertaking to that effect, as the Transferor company is going to be dissolved. ix. Transferor company shall comply with the provisions and regulations of FEMA/RBI while allotting shares to shareholders of the transferor company since as per the annual return for the year 2016-17 transferor company has foreign shareholders viz., Ventureast Proactive Fund LLC and others. Further, as per the share exchange ratio report submitted, it is found that on 28.02.2018, the transferee company held 300 equity shares and 11,26,643 preference shares in the transferor company and Ventureast Proactive Fund LLC did not hold any shares. It seems there might be a share transfer/a....
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....eholders of transferor Company once the scheme is approved by the National Company Law Tribunal. 11. The Official Liquidator attached to the High Court of Karnataka has filed report OLR No. 137/2018 dated 01^st January, 2019 making the following submissions: i. That the Applicants, M/S Ad2pro Media Solutions Private Limited (Transferor Company) has filed a petition u/s 230 to 232 of the Companies Act, 2013 before this Hon'ble Tribunal seeking thereby the orders for sanction of amalgamation with Ad2pro Global Creative Solutions Private Limited (Transferee Company). ii. That pursuant to the orders of this Hon'ble Tribunal 09.11.2018, the Official Liquidator engaged one of his panel Chartered Accountant, ws S.L. Patil & Co, Chartered Accountants for scrutiny of the books of accounts and records of above Transferor Company. iii. That M/S S.L. Patil & Co, Chartered Accountants, have submitted their report dated 17.12.2018 on the affairs of Transferor Company wherein interalia it is stated that there are outstanding dues on account of dispute in respect of Income Tax and Service Tax as follows:- Name of the Statute Nature of Dues Amount Due ....
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.... Tax Customs, Excise and Service Tax Appellate Tribunal FY 2012-13 to FY 2016-17 relating to various quarters 86,81,439 Nil Income Tax Commissioner of Income Tax Appeals FY 2010-11 to FY2016-17 19,88,24,680 1,75,00,000 Total 20,75,06,119 1,75,00,000 That post amalgamation, as mentioned in Clause 12.7 of the scheme all the tax assessment proceedings and appeals of whatsoever nature shall be continued with the Transferee Company and any dues payable after adjudication including appeals thereafter shall be paid by the Ad2pro Global Creative Solutions Private Limited (Transferee Company). That a Chartered Accountant has certified the same and the certificate is enclosed. c) That Ventureast Proactive Fund LLC held 150 equity shares and 7,66,168 preference shares in the Transferor Company i.e., Ad2pro Media Solutions Private Limited. Such shares were purchased by the Transferee Company on 21 st February 2018, i.e., before filing the scheme with National Company Law Tribunal, and thereafter Ventureast Proactive Fund LLC does not hold any shares in Ad2pro Media Solutions Private Limited. All regulat....
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....the transferee company for all the state and interest of the Petitioner/Transferor Company therein but subject nevertheless to all the charges now affecting the same; and (4) All the liabilities including taxes and charges, if any, and duties of the Transferor Company be transferred without further act or deed to the Transferee Company and accordingly the same shall pursuant to section 232 of the Companies Act, 2013, be transferred to and become the liabilities and duties of the Transferee Company; and (5) The tax implications, if any, arising out of the scheme is subject to final decision of Concerned Tax Authorities and the decision of the Concerned Tax Authorities shall be binding; and (6) All the proceedings taxation and others, now pending by or against the Transferor Company be continued by or against the Transferee Company, if any; and (7) The Applicant Companies shall within thirty days of the date of the receipt of this order cause a certified copy of this order along with a copy of scheme of Amalgamation to be delivered to the Registrar of Companies for registration in accordance with applicable rules and regulations; and (8) The Registrar of Companies to e....