TaxTMI 
TaxTMI 
2020 (5) TMI 67
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....ing concern together with all the assets and liabilities relating thereto is proposed to be transferred to and be vested in the transferee company on the terms and conditions and in the manner fully stated therein. A copy of the said scheme of amalgamation annexed with the petition and the same is marked with the annexure A1. 3. It is further stated in the petition that the hon'ble Tribunal vide its order passed on April 12, 2018 in Company Application No. C. A. (CAA) No. 197/KB/2018 was pleased to be dispensed with the meetings of the equity shareholders and creditors of petitioner-company Nos. 1, 2 and 3 with a direction to file the petition of this order. 4. It is further stated in the petition that the following circumstances and/or reasons and/or grounds that have necessitated the said scheme of amalgamation are : (a) The amalgamation will reap the benefits of economy of scale after greater leverage of funds. (b) Opportunity to strategic reorganization of manpower and facility and greater focus on core competence of the group. (c) The amalgamated entity shall be able to act better to co-ordinate the group activities. (d) The said s....
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....d on August 6, 2019 in proof of publication and service of notice to the statutory authorities as directed by the hon'ble Tribunal in C. P. (CAA) No. 725/KB/2018 connected with C. A. (CAA) No. 197/KB/2018 which is on record. 10. Sri Debasish Bandopadhyay, Regional Director, Eastern Region, Ministry of Corporate Affairs have filed affidavit duly affirmed on October 9, 2018 wherein he has made the following observations : In paragraph 2(a) : That it is submitted that as per the order of the hon'ble National Company Law Tribunal dated April 12, 2018 the petitioner-companies served the notice of the proposed scheme of amalgamation with this directorate vide letter dated April 13, 2018 and this directorate raised some queries before the petitioner-companies vide letter dated May 1, 2018 and requested them to submit their report with ten days from the receipt of the letter, but the petitioner-companies have not yet replied to the said queries, which requires to be examined for filing of an affidavit before the hon'ble Tribunal to give necessary directions to the petitioner-companies to reply to the query letter dated May 1, 2018 so as to enable this direc....
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....mpanies. The financial statements are therefore incomplete and violate the Regulations of RBI and hence this deponent is not in a position of giving views about the state of affairs of the companies as exhibited in such financial statements, is therefore not in order. The companies should first seek approval of hon'ble Tribunal to revise the financial statements under section 131 of the Companies Act, 2013 and then file the revised financial statements with Registrar of Companies in prescribed manner. In paragraph 2(g) : It is submitted that in the financial statement of Swadha Properties P. Ltd. (transferor companies) for 2016-17 the earnings are shown as mainly from rent (Rs. 11,56,645) and hire charges received (Rs. 17,67,097). But in the balance-sheet as at March 31, 2017 or as at March 31, 2016 no fixed assets or movable assets were reported which can be rented out or hired out. The assets reported were (i) capital work in progress (i. e., not complete assets and hence not fit or renting out), (ii) non-current investment, (iii) deferred tax assets, (iv) short-term loans and advances, and (v) cash and cash equivalent. In fact, Schedule 5 (for capital work ....
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....d that accounting treatment shall be in accordance with the accounting standard. The scheme is incomplete and ambiguous and hence not in order. In paragraph 2(d) : It is submitted that the scheme, in clause 15, does not clearly provide, as it appears, that whether any fee payable, in terms of the provisions of section 232(3)(i) shall be paid or not. The applicant-company should submit a statement showing clubbing of the authorized capital and the extent of adjustment of fees already paid by the transferor companies on their respective authorized capital, to ascertain whether any further fee is pay able in terms of the provision of section 232(3)(i) of the Companies Act, 2013. In paragraph 2(e) : It is submitted that in respect of transferor companies, Bluejay Air lines P. Ltd., and Swadha Properties P. Ltd., it is stated in the auditors' report for 2016-17 that the company has obtained registration from Reserve Bank of India. But no mention is made about the registration number, etc. In the auditor's report or in the board's report. The company should submit an affidavit in this regard to enable this deponent to examine the matter. ....
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....e Ministry of Corporate Affairs, New Delhi, a copy of the scheme was forwarded to the Income-tax Department on May 1, 2018 with a request to forward their comments/ observations/objections, if any, on the proposed scheme of amalgamation. However, the said authority vide letter dated May 15, 2018 forwarded their report in respect of M/s. Saharsh Yarn P. Ltd. (transferee company) wherein it is stated that outstanding demand of Rs. 1,772, 5,20,942, 1,13,262, 2,784, 2,03,580, 5,48,240, 2,04,990 and 3,685 respectively for the assessment years 2005-06, 2006-07, 2008-09, 2008-09, 2009-10, 2010-11, 2011-12 and 2012-13 and objected to the scheme. But the said authority not forwarded their report in respect of other applicant-companies. In paragraph (i) : In view of the above this directorate as well as Income-tax Department objected to the scheme. 12. The petitioner-companies have filed supplementary affidavit which is affirmed on July 29, 2019 and made the following sub-missions : In paragraph 2 : That the shareholders of the petitioner-companies have given their consent to alter/modify the clause 12(iv) of the scheme as follows : "Clause 12(....
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....eported that the petitioner-companies have given their consent to alter/modify clause 12(iv) of the scheme, inter alia, stated that "no fractional certificates shall be issued by the transferee company and the fractional share entitlements if any, arising out of the allotment shares as aforesaid, shall be rounded off to the nearest complete share". In paragraph 2(b) : That as per paragraph 3 of rejoinder dated July 29, 2019 in respect of 2(c) regarding the "accounting treatment" and it is reported that the petitioner-company declare that they will comply with the Accounting Standard 14 and the difference will be adjusted with the reserve only in terms of Accounting Standard 14. In paragraph 2(c) : That as per paragraph 4 of rejoinder dated July 29, 2019 in respect of 2(d) regarding the "authorized share capital" and it is reported that the petitioner-company declare that they will comply with the provisions of section 232(3)(i) of the Companies Act, 2013. In paragraph 2(d) : That as per paragraph 7 of rejoinder dated July 29, 2019 in respect of 2(e) regarding the "NBFC registration" and it is reported that the petitioner-compani....
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....ompanies Act, 2013 whichever is applicable. 16. Heard learned counsel for the petitioners and authorized representative of the Regional Director, Eastern Region, Ministry of Corporate Affairs at Kolkata and perused the approvals accorded by the members and creditors of petitioner-companies to the proposed scheme and the affidavits filed by the Regional Director, Eastern Region, Ministry of Corporate Affairs ; the report of the official liquidator and also perusing the supplementary affidavit filed by the petitioner-companies to the objection of the Income-tax Department through Regional Director, Eastern Region Ministry of Corporate Affairs ; the following are ordered : Order (a) The scheme of amalgamation mentioned in paragraph "1" of this petition being annexure A1 hereto be sanctioned by this hon'ble Tribunal to be binding with effect from the April 1, 2017 or from such other date as this hon'ble court may fix on transferor companies and transferee company. (b) All the properties, rights and interest of transferor companies be transferred to and be vested without further act or deed in transferee company and accordingly the same shall pursua....