TaxTMI 
TaxTMI 
2021 (4) TMI 292
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....ntioned in the Company Petition, which are relevant to the issue in question, are as follows: (1) M/s. Soha Systems India Private Limited (the 'Petitioner Company/Transferor Company') was incorporated on 19.12.2014 under the provisions of Companies Act, 2013, vide CIN:U72200KA2014FTC077821 in the name of "BubblewrApp India Software Private Limited", thereafter the name was changed to "Soha Systems India Private Limited" w.e.f. 16.09.2015. Its registered office is presently situated at 201 Prestige Sigma at Level II, No. 3 Vittal Mallya Road, Bangalore 560001. Its Authorised Share Capital is Rs. 10,00,000/- divided into 10,00,000 Equity Shares of Rs. 1/- each and the Issued, Subscribed & Paid-up Share Capital is Rs. 1,00,000/- divided into 1,00,000 Equity Shares of Rs. 1/- each fully paid up. The Company is carrying on the business of software designing, development, customisation, implementation, maintenance, testing and bench marking, designing, developing and dealing in computer software and solution, and to import, export, sell, purchase, distribute, etc. (2) The Board of Directors of the Transferor Company at its meeting held on 14.11.2018 have approve....
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....a) Private Limited as detailed in the Scheme of Amalgamation placed before the Board of Directors. RESOLVED FURTHER THAT approval of the board of directors be and is hereby given to the draft Scheme of Amalgamation and the Valuation report duly certified by an independent chartered accountant, viz, KKL & Associates as placed before the board of directors. (5) M/s. Navin Daga & Co., Chartered Accountants, the Independent Auditors of the Transferor Company and M/s. Price Waterhouse & Co., Chartered Accountants LLP, vide its respective Certificates dated 24.01.2019 & 15.02.2019 has inter alia certified that the accounting treatment specified in Section 15 of Part III of the Draft Scheme of Amalgamation between the Transferee and Transferor Companies, is in compliance with the applicable Accounting Standards prescribed under Section 133 of the Companies Act, 2013 and other Generally Accepted Accounting Principles, as may be applicable. (6) Under the Scheme of Amalgamation, the entire undertaking of the Transferor Company would stand transferred to, and vested in, the Transferee Company on and from the 1st April, 2018 (Appointed Date). (7) The Benefit....
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....d in the Petitioner/Transferor Company shall stand cancelled post approval of the Scheme of Amalgamation. The Transferee Company shall pay requisite difference stamp duty pursuant to the increased in the authorised share capital of the Transferee Company. (10) It is stated that the Transferor Company and the Transferee Company are more than sufficient to meet the liabilities of both the companies and the said Scheme of Amalgamation will not adversely affect the rights of any of the creditors of the Petitioner/Transferor Company in any manner whatsoever. (11) It is stated that under the proposed Scheme of Amalgamation, the entire assets and liabilities of the Petitioner/Transferor Company will be taken over by the Transferee Company from the Appointed Date as a going concern. (12) It is stated that the exchange ratio for the purpose of implementation of the terms of the Scheme of Amalgamation has been prepared by an independent valuer and has been unanimously accepted by the Board of Directors and the shareholders of all the Companies. (13) There are no proceedings pending under Sections 210 to 227 of the Companies Act, 2013, against the Petitione....
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.....03.2020 and stated that Petitioner Companies do not come under the purview of jurisdiction of the Competition Commission of India (CCI) as it is beyond the prescribed threshold. 7. The Registrar of Companies, Karnataka and Regional Director (SER), Hyderabad vide their Affidavits dated 20.04.2020 & 28.09.2020 have made similar observations inter alia pointed out the following observations: (1) All most all shares of the Transferor Company and the Transferee Company are held by their parent companies who are foreign entities viz. Akamai Technologies Inc., USA and Akamai Technologies Netherlands B. V., Akamai International B.V. Hence both Transferor and the Transferee companies have to comply with FEMA/RBI regulations. Akamai Technologies Inc are holding shares in both Transferor and the Transferee Company and is a wholly owned Holding company of the Transferor Company. The Hon'ble Tribunal may ask the applicants as to how they have complied with the recently noticed FDI regulations as far as the acquisition/take over by the companies entities located in the countries bordering to India. (2) Clause 16 of the Scheme states that the authorised capital of the Tr....
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.... aforesaid RD/ROC observations the Petitioner herein vide Reply Affidavit dated 01.12.2020, inter alia stated as follows: (1) Regarding the Observation No. 1 made by ROC & RD, it is submitted that all the relevant regulations and mandates and returns to be filed under FEMA with RBI have been complied with the Transferee Company and further undertakes to state that the Transferee Company shall comply with all filings as may be required post approval of the Scheme sanctioned by the Hon'ble National Company Law Tribunal, Bengaluru Bench. (2) Regarding the observation on FDI made by ROC & RD, it is stated that the Petitioner Company is compliant with the FDI regulations. It further states that the Petitioner Company has not received any FDI in the recent past and therefore, guidelines about restriction over the investment by the companies/entities located in countries bordering India are not applicable. The relevant documents evidencing compliance of FDI regulations are enclosed (3) Regarding the observation No. 2 made by ROC & RD, it is stated that the Petitioner hereby undertakes to comply with Section 232(3)(i) of the Companies Act, 2013 and to pay the....
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....1) The Company has stated that all the requirements of FEMA/RBI has been complied with and the Transferee Company shall comply with all post approval of the Scheme as per requirements of the law. (2) The Petitioner have undertaken to comply with the requirement of Section 232(3)(i) of the Companies Act, 2013. (3) With reference to ROC's report 30(3) and RD's report 3(c), in view of the explanation given not to press for the same. (4) The Company may be directed to submit supporting documents to show the compliance of Section 135 and rules thereon, within 30 days of the scheme if approved by the Tribunal. (5) The Petitioner has stated that in the recent past the Company has not received any FDI. (6) The Petitioner Company may be directed to show the compliance of Section 188, to the satisfaction of ROC, within 30 days, if the scheme is allowed. 10. The Reserve Bank of India vide its letter F. No. NCLT/DCIT-C-1(1)(1)/2019-20 dated 13.03.2020 has inter alia stated that the assessee company, M/s. Akamai Technologies Pvt. Ltd. is assessed for tax in this circle with PAN:AADCK5389G as verified from the system, the assessee company h....
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....on, the reports of the Regional Director, MCA, the ROC as well as the comments offered by the Official Liquidator, RBI and the relevant provisions contained in the Companies Act, 2013 and other related Acts and Rules. Wherever no response has been received from the relevant statutory authorities/regulators to whom notices were issued, it is deemed that they have no objection to the proposed Scheme. From a perusal of the material brought on record, it appears that the Scheme of Amalgamation is fair, reasonable and is not detrimental to the Members or Creditors or contrary to public policy. Further, as per the Petition, the Scheme in question will bring about operational synergies of the combined entity, have a more efficient and cost-effective management system in view of consolidation of operations Consolidation and Synergies in business operations; Increase in net worth of the Transferee Company and will facilitate effective and fast mobilization of financial resources for meeting its increased capital expenditure for future expansion, etc. On a consideration of the facts of the case as mentioned in the preceding paragraphs, which are not being elaborated here to avoid duplication....
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.... Any liability, arising from non-compliance to the provisions contained in section 135, shall stand transferred to and be the liability of the Transferee Company, and further the Transferee Company shall submit details of compliance before the ROC within a period 30 days from the date of this order; and (10) The Petitioner Company 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 (11) The acceptance of the Scheme of Amalgamation is subject to the directions that the Petitioner Companies shall file all the due Statutory Returns immediately, if any; and (12) The Petitioner Companies will ensure compliance to all provisions of the Companies Act 2013, as may be applicable, and their Affidavits/Undertakings and will submit Quarterly/Annual Status Reports of such compliances through an Affidavit by Managing Director/Director of the Company along with CA/ICWA/CS Certificates till the compliance is ensured; and (13) The Transferor Company an....