2022 (2) TMI 467
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....) under Sections 230-232 of the Companies Act, 2013 (for short to be referred hereinafter as the 'Act') in terms of Rule 16 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 (for brevity, 'Rules'). 2. The Petitioner Companies filed First Motion Application bearing CA (CAA) No. 14/Chd/Hry/2019 before this Tribunal for seeking directions for dispensing with the meetings of equity shareholders, secured creditors and unsecured creditors of the Applicant Companies. 3. The First motion application was disposed of vide order dated 31.05.2019, with directions to dispense with the meetings of equity shareholders, secured creditors and unsecured creditors of all the applicant companies, as the written consent/affidavits of the equity shareholders, secured creditors and unsecured creditors of all the Applicant Companies were filed and placed on record. 4. The main objects, date of incorporation, authorized and paid-up share capital, and the rationale of the scheme had been discussed in detail in the order dated 31.05.2019. 5. In the second motion application proceedings, certain directions were issued by this Tribunal vide order dated 12.07.2019 an....
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....C has been attached as Annexure-B of the report of R.D. In the Para 31 of the report of RoC the following observations has been made:- "It has been mentioned in Clause 8.4 of the Scheme inter alia that in view of the proposed amalgamation of Transferor Companies into the Transferee Company, the shares shall be allotted to the Transferor Companies. In this regard, it is submitted that upon sanction of amalgamation of Transferor Companies with the Transferee Company, the shareholders of Transferor Companies shall be entitled to receive equity shares of the Transferee Company. " Thus, the Registrar of Companies(RoC)/Regional Director has made no adverse observation against the petitioner companies. 7.2. Official Liquidator The Official Liquidator has filed his report vide Diary No. 5155 dated 27.09.2019. The relevant part of the report is extracted below: "1. That the Petitioner Company No. 1 to 6 does not have any pending litigation which would impact its financial position. 2. That according to the information and explanation given to us there were no amounts which were required to be transferred to the Investor Education and Protection Fund by the Company No. 1 to 5. 3. ....
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....ary No. 1293 dated 17.02.2020 and Diary No. 1886 dated 11.03.2020 for Transferor Company No. 1; Diary No. 1883 dated 11.03.2020 for Transferor Company No. 2; Diary No. 1882 dated 11.03.2020 for Transferor Company No. 3; Diary No. 1885 dated 11.03.2020 for Transferor Company No. 4; Diary No. 1884 dated 11.03.2020 for Transferor Company No. 5 and Diary No. 1887 dated 11.03.2020 for Transferee Company. e) It has been submitted that as per Clause 6.1, 6.2, 6.3 and 6.7 of the scheme that all the profits and losses of the transferor Company for the period commencing from the appointed date shall be profit and loss of the Transferee Company and will be available to the transferee company for being dealt with/disposed of in any manner. As per provisions of Section 72A the transferee company is entitled to carry forward or set off losses of Transferor Company No. 1. It is further submitted that as per the Scheme of Amalgamation the shares are to be allotted by the Transferee Company to the shareholders of the Transferor Company No. 4 as per the share exchange ratio mentioned in the valuation report which is duly consented by the 100% shareholders of the Transferor Company No. 4 which is a....
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.... any manner. Moreover, all loan raised and utilized and all debts, duties, undertakings, liabilities and obligations incurred or undertaken by the Transferor Company in relation to or in connection with the said Business after the Appointed Date and prior to the Scheme coming into effect shall be deemed to have been raised, used, incurred or undertaken for and on behalf of the Transferee Company." 7.4. The relevant clauses of the scheme referred above have been considered. It is apparent that there is no specific provision in the scheme relating to the treatment to be given to the carry forward of losses and depreciation of the transferor companies, even though there is a general undertaking regarding the same. After consideration, it is ordered that the carry forward and set off of accumulated loss and unabsorbed depreciation, in the cases of all the transferor companies will be allowed only on fulfillment of the statutory conditions of Section 72A of the Income Tax Act, 1961. 7.5. It is also apparent from the above discussions that the liabilities towards Income Tax dues exist in the Petitioner Company No. 6. In this context, this Tribunal is not shutting out the legitimate int....
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....ome-tax v. Vodafone Essar Gujarat Ltd. [2015] 190 Comp Cas 105 (S.C.); [2015] 373 ITR 525 (S.C.); [2016] 66 taxmann.com. 374 (S.C.) from which it is seen that at the time of declining the S.L.P.s filed by the Revenue, however stating to the following effect vide its order dated April 15, 2015, that the Department is entitled to take out appropriate proceedings for recovery of any statutory dues from the transferor or transferee or any other person who is liable for payment of such tax dues the said protection be afforded is granted. With the above observations, the petition stands allowed, and the scheme of amalgamation is sanctioned." 8. The certificate of the Statutory Auditors of the Transferor Company and the Transferee-Company with respect to the Scheme between Applicant-Companies to the effect that the accounting treatment proposed in the Scheme is in compliance with applicable Indian Accounting Standards (Ind AS) as specified in Section 133 of the Act, read with rules thereunder and other Generally Accepted Accounting Principles was filed, with the first motion application and the same is recorded in para 40 of order dated 31.05.2019. 9. We have heard the learned counsel f....
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....ies shall be transferred to the Transferee Company in terms of the 'Scheme'; (vi) That the authorized share capital of the Transferee Company shall stand increased by vesting the authorised share capital of the Transferor Company without any further act or deed; (vii) That the Transferee Company shall, without further application, allot to the existing members of the Transferor Companies shares of Transferee Company to which they are entitled under the said Scheme of Amalgamation; (viii) That the fee, if any, paid by the Transferor Companies on its authorized capital shall be set off against any fees payable by the Transferee Company on its authorized capital subsequent to the sanction of the 'Scheme'; (ix) That the carry forward and set off of accumulated loss and unabsorbed depreciation in the cases of all the transferor companies will be allowed only on fulfillment of the statutory conditions of Section 72A of the Income Tax Act, 1961. (x) That the Transferee Company shall file the revised memorandum and articles of association with the Registrar of Companies, N.C.T. of Delhi & Haryana and further make the requisite payments of the differential fee (if ....