TaxTMI 
TaxTMI 
2021 (1) TMI 654
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.... ASM EXIM LIMITED, Transferor Company 7; SPHERE AUTO PRIVATE LIMITED, Transferor Company 8; DEEPAK MANUFACTURING LIMITED, Transferor Company 9 with APJ INVESTMENTS PRIVATE LIMITED, Transferee Company, jointly described as 'Applicant Companies'; under sections 230-232 and other applicable provisions of the Companies Act, 2013 (for brevity the 'Act'), read with Companies (Compromises, Arrangements, Amalgamations) Rules 2016 (for brevity the 'Rules') for sanctioning the proposed Scheme of Amalgamation (for short the 'Scheme') annexed as Annexure 'A' of the application. 2. It is stated that the Board of Directors of the Applicant Companies in their respective meetings held on 13.11.2019 and 14.11.2019 considered and unanimously approved the Scheme subject to sanctioning of the same by this Tribunal. The copy of the Board Resolutions of all the Applicant Companies are at Annexures 'B-4' (Colly), 'C-4' (Colly), 'D-4' (Colly), 'E-4' (Colly), 'F-4' (Colly), 'G-4' (Colly), 'H-4' (Colly), 'I-4' (Colly), 'J-4' (Colly) and 'K-4' (Colly), respectively. That Applicant Companies 1 to 10 have authorized Mr. Puneet Kumar Jakhodia to finalize and execute necessary certifications, confirmati....
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.... Total 118,070,300/- It is stated that subsequent to 31.03.2019 and till the date of filling of this joint application there is no change in the share capital of the Applicant Company-1. 6. The certified true copy of the audited financial statements for the financial year ended on 31.03.2019 and provisional financial statements of the Applicant Company-1 for the period 01.04.2019 to 30.09.2019 are annexed as Annexure B-2 and Annexure B-3 of the application respectively. 7. As per the Memorandum & Articles of Association, Annexure 'C-1 (Colly)', the main objects of Applicant Company 2 are as follows: "1. To buy, sell, exchange, alter or improve, built, manufacture, give on hire or hire-purchase agreement and deal in vehicles of any kind. 2. To construct, repair, alter, purchases, acquire, import, export, manipulate, improve, repair for market and otherwise deal in all the kinds of plants, machinery , parts, tubes, tyres, tools, accessories, utensils, substances, materials and things necessary or convenient for carrying of the above specified business or usually dealt in by persons engaged in the like trade or business." 8. As ....
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....na-122050. 13. The Authorised, Issued, Subscribed and Paid-up Share Capital of the Applicant Company-3 as per the Audited Accounts for the financial year ended on 31.03.2019 is as follows: Particulars Amount In' Rs. AUTHORISED SHARE CAPITAL: 33,00,000 equity shares of Rs. 10 each 3,30,00,000/- Total 3,30,00,000/- ISSUED, SUBSCRIBED AND PAID UP CAPITAL: 24,68,090 equity shares of Rs. 10 each 2,46,80,900/- Total 2,46,80,900/- The certified true copy of the audited financial statements for the financial year ended on 31st March, 2019 and provisional financial statements of the Applicant Company-3 for the period 1st April, 2019 to 30th September, 2019 are annexed as Annexure D-2 and Annexure D-3 of the application respectively. 14. As per the Memorandum & Articles of Association, Annexure 'E-1' (Colly), the main objects of Applicant Company 4 are as follows: - "To manufacture, design, fabricate, process, assemble, develop, undertake, buy, sell, import, export, hire, distribute, alter, repair, convert and otherwise deal in all kinds of plastic components, sheet metal components,....
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....any incorporated on 10.05.2001 under the provisions of Companies Act, 1956. The Corporate Identification Number (CIN) of Applicant Company-5 is U34300HR2001PLC082933. The registered office of the Applicant Company-5 is presently situated at Plot No. 123, Sector-3, IMT Manesar, Haryana-122050. 20. The Authorized, Issued, Subscribed and Paid-up Share Capital of the Applicant Company-5 as per the Audited Accounts for the financial year ended on 31.03.2019 is as follows: - Particulars Amount In' Rs AUTHORISED SHARE CAPITAL: 17,50,000 equity shares of Rs. 10 each 1,75,00,000/- Total 1,75,00,000/- ISSUED, SUBSCRIBED AND PAID UP CAPITAL: 16,63,500 equity shares of Rs. 10 each 1,66,35,000/- Total 1,66,35,000/- It is also stated that subsequent to 31st March, 2019 and till the date of filling of this joint application there is no change in the share capital of the Applicant Company-5. 21. The certified true copy of the audited financial statements for the financial year ended on 31st March, 2019 and provisional financial statements of the Applicant Company-5 for the period 1st April, 2....
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....mental stores, sellers, importers, exporters, distributors, agents, brokers, factors, stockists, commission agents and dealers of: (a). All kinds of fabrics, textiles such as decorative, hand and machine made readymade garments, carpets, durries, mats, rugs, namdas, blankets, shawls, tweeds, linens, flannels, beds spreads, quilts, scarfs, belts, tapestry and all other articles of silk, cotton, woollen and worsted materials and all sorts of apparels, dressing materials, mixed, blended products, nylon, polyster fibre, yarn, hosiery and mixed fabrics, natural silk fabrics and garments. (b). Engineering goods, machine tools, hand tools, small tools, metals, alloys, iron, pipe fittings, nuts and bolts, bicycles and accessories, automobiles parts, steels and stainless steel and iron products, ores and scraps, metallurgical residues hides, skins, leather goods, furs, bristles, tobacco (raw and manufactured) hemp, seeds, oils and cakes, vanaspati, textile, x x x x and all sorts of import licences and all kinds, types and varieties of goods, merchandise and commodities. 2. To act as an exp....
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....tion required for or in connection with the objects described in 1 above. 31. As per the Certificate of Incorporation, the Applicant Company 8 is a private limited company incorporated on 22/03/2018 under the provisions of Companies Act, 2013. The Corporate Identification Number of Applicant Company 8 is U74999HR2018PTC082447. The registered office of the Applicant Company 8 is presently situated at Plot No. 123, Sector-3, IMT Manesar, Haryana-122050. 32. The Authorized, Issued, Subscribed and Paid-up Share Capital of the Applicant Company 8 as per the Audited Accounts for the financial year ended on 31st March 2019 is as follows: Particulars Amount In' Rs. AUTHORISED SHARE CAPITAL: 2,50,000 equity shares of Rs. 10 each 25,00,000/- Total 25,00,000/- ISSUED, SUBSCRIBED AND PAID UP CAPITAL: 1,00,000 equity shares of Rs. 10 each 10,00,000/- Total 10,00,000/- It is also stated that subsequent to 31.03.2019 and till the date of filling of this joint application there is no change in the share capital of the Applicant Company 8. 33. The certified true copy of the audited financia....
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....he application respectively. 38. As per the Memorandum & Articles of Association, Annexure 'K-1', the main objects of Applicant Company 10 are as follows: "1. To carry on the business of investment in the shares for the purpose of holding controlling stake and loaning, lending and advancing money to commercial and industrial enterprises for the purpose of acting as a Core Investment Company as defined by the Guidelines issued under the Reserve Bank of India Act, 1934. 2. To carry on the business of investment and financiers (not amounting to banking business within the meaning of Banking Regulation Act, 1949 and/or any Non Banking Financial activity for which an approval by way of registration or license of the Reserve Bank of India under the Reserve Bank of India act,1934 is required) and for that purpose to subscribe, take, purchase or acquire in any manner and deal and otherwise dispose-off shares, stock, debentures, bonds, obligations of the companies." 39. As per the certificate of incorporation, the Applicant/Transferee Company 10 is a private limited company incorporated on 16.02.2016 under the provisions of Companies Act, 2013. The Corpor....
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....ces to the Central Government through Regional Director (Northern Region), Ministry of Corporate Affairs, Registrar of Companies, Delhi & Haryana, Official Liquidator attached to the High Court of Punjab and Haryana, Chandigarh and Income Tax Authorities having jurisdiction over the Applicant Companies in terms of section 230(5) read with rule 8 of the Companies (Compromise, Arrangements and Amalgamations) Rules, 2016; (c) Pass any other order(s) or directions as may be deemed fit by this Hon'ble Tribunal in the present facts and circumstances of the case. 45. The Applicant Company 1 has seven equity shareholders as on November 13, 2019. All the equity shareholders of the Applicant Company 1 have given their consents, by way of affidavits, to the Scheme. The list of equity shareholders of the Applicant Company-1 along with their respective consent affidavits are annexed as Annexure B-6(Colly) of the application. 46. The Applicant Company 1 has no secured and unsecured Creditor as on November 15, 2019. A Certificate of M/s AJH & Co., Chartered Accountants, certifying that there is no secured and unsecured Creditor in the Applicant Company-1 is ....
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....countants, certifying the number of secured creditors in the Applicant Company-3 as on 15th November, 2019 and respective consent affidavit is annexed as Annexure D-7 (Colly) of the application. 52. The Applicant Company-3 has 149 (One hundred forty nine) unsecured creditors having an outstanding balance of Rs. 15,51,28,004 (Rupees Fifteen crore fifty one lacs twenty eight thousand four) as on 15th November, 2019. The 28 (Twenty eight) unsecured creditors having an outstanding balance of Rs. 14,89,67,839 (Rupees Fourteen crore eighty nine lacs sixty seven thousand eight hundred thirty nine) consisting 96.03% of unsecured creditors in value have given their consent, by way of consent affidavits. A certificate of M/s AJH & Co., Chartered Accountants, certifying the number of unsecured creditors in the Applicant Company-3 as on 15th November, 2019 and respective consent affidavits are as Annexure D-8 (Colly) of the application. 53. The Applicant Company-4 has seven equity shareholders as on November 14, 2019. The said equity shareholders of the Applicant Company-4 have given their consents, by way of affidavits, to the Scheme. The list of equi....
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.... lacs ninety two thousand five hundred eighty nine) as on 15th November, 2019. The said secured creditor has given its consent, by way of consent affidavit. A certificate of M/s AJH & Co., Chartered Accountants, certifying the number of secured creditors in the Applicant Company-5 as on 15th November, 2019 and respective consent affidavit is annexed as Annexure F-7 (Colly) of the application. 58. The Applicant Company-5 has 74 (Seventy four) unsecured creditors having an outstanding balance of Rs. 2,13,60,034 (Rupees Two Crore thirteen lacs sixty thousand thirty four) as on 15th November, 2019. The 30 (Thirty) unsecured creditors having an outstanding balance of Rs. 2,09,00,817 (Rupees Two crore nine lacs eight hundred seventeen) consisting 97.85% of unsecured creditors in value have given their consent, by way of consent affidavits. A certificate of M/s AJH & Co., Chartered Accountants, certifying the number of unsecured creditors in the Applicant Company-5 as on 15th November, 2019 and respective consent affidavits are annexed herewith and marked as Annexure F-8 (Colly) of the application. 59. The Applicant Company-6 has seven equit....
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....17 (Rupees Three lacs twenty thousand eight hundred seventeen) as on 15th November, 2019. The said unsecured creditor has given its consent, by way of consent affidavit. A certificate of M/s AJH & Co., Chartered Accountants, certifying the number of unsecured creditors in the Applicant Company-7 as on 15th November, 2019 and respective consent affidavit is annexed as Annexure H-8 (Colly) of the application. 65. The Applicant Company-8 has two equity shareholders as on November 14, 2019. The said equity shareholders of the Applicant Company-8 have given their consents, by way of affidavits, to the Scheme. The list of equity shareholders of the Applicant Company-8 along with their respective consent affidavits are annexed as Annexure I-6 (Colly) of the application. 66. The Applicant Company-8 has no secured Creditor as on November 15, 2019. A certificate of M/s AJH & Co., Chartered Accountants, certifying that there is no secured Creditor in the Applicant Company-8 is annexed as Annexure I-7 of the application. 67. The Applicant Company-8 has 21 (Twenty one) unsecured creditors having an outstanding balance of Rs. 1,59,30,928 (Rupees one crore fifty nine la....
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....rore eighty three lacs eleven thousand seven hundred seventy seven) consisting 97.31% of unsecured creditors in value have given their consent, by way of consent affidavits. A certificate of M/s AJH & Co., Chartered Accountants, certifying the number of unsecured creditors in the Applicant Company-9 as on 15th November, 2019 and respective consent affidavits are annexed as Annexure J-8 (Colly) of the application. 71. The Applicant Company-10 has six equity shareholders as on November 13, 2019. The said equity shareholders of the Applicant Company-10 have given their consents, by way of affidavits, to the Scheme. The list of equity shareholders of the Applicant Company-10 along with their respective consent affidavits are annexed as Annexure K-6 (Colly) of the application. 72. The Applicant Company-10 has no secured and unsecured Creditor as on November 15, 2019. A certificate of M/s AJH & Co., Chartered Accountants, certifying that there is no secured and unsecured Creditor in the Applicant Company-10 is annexed as Annexure K-7 of the application. 73. The benefits that the proposed 'Scheme' shall have as stated in this application are as follows:- ....
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....nbsp; On the last date of hearing, learned counsel for the Applicant Companies submitted that they will file a latest provisional balance sheet but the same is not filed till date. However, the learned counsel for the Applicant Companies is permitted to file the following documents through email within four weeks:- (1) The provisional balance sheets of all the Applicant Companies as on 31.03.2020. (2-A) Transferor Company No. 2 - The Specific Power of Attorney dated 04.02.2020 issued by M/s Osram Lighting Private Limited in favour of Mr. Sanjay Narula at Page 321 states that the said Power of Attorney will expire on 31.03.2020 or till the time the designated attorney is the employee of the Company or if revoked by the Company at its sole discretion, whichever is earlier. Hence, it is to be clarified whether the said Power of Attorney is still in force as on today or not and if not a fresh SPA to be filed. (2-B) Transferor Company No. 2 - Board Resolutions of Osram Lighting Private Limited and DSM India Pvt. Ltd., who are the unsecured creditors of Transferor Company No. 2 with respect to their consent for the Scheme; ....
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....Co., Chartered Accountants that there is no outstanding as on 15th February, 2020 in the name of Indian Bank Limited (Term Loan and OD). Therefore, there is no need of furnishing Board resolution / authority in case of Indian Bank as there is no outstanding due as on date. 78. It is submitted that the Scheme (Annexure A) also takes care of the interests of the staff/workers and employees of the Transferor Companies. It is provided under Part III clause 18 of the Scheme is as under: "Upon the coming into effect of this Scheme, the permanent employees of the Transferor Companies who are on employment as on the Effective Date shall become the permanent employees of the Transferee Company with effect from the Effective Date without any break or interruption in service and on terms and conditions as to employment and remuneration not less favourable than those on which they are engaged or employed by the Transferor Companies." 79. The statutory auditors of the Applicant Companies have furnished certificate at Annexures B-8, C-9, D-9, E-9, F-9, G-9, H-9, I-9, J-9 and K-8 respectively, stating that the accounting treatment proposed in the Scheme is in complia....