TaxTMI 
TaxTMI 
2022 (4) TMI 659
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....ird Petitioner Company") and their respective Shareholders ('Scheme'). 4. The Learned Counsel for the Petitioner Companies submits that the First Petitioner Company is engaged in the business of food products and also holds shares in the Third Applicant Company engaged in the business of manufacturing and marketing of foods products. Second Petitioner Company is primarily engaged in the business of Manufacturing and Processing of Food and Food Products and the Third Petitioner Company is primarily engaged in the business of manufacturing and marketing of its food products viz. Pickles, Papads, Pastes, Gerkins etc. under the Brands Mother Recipe, Dabee, Elmac, Spread on. 5. The rationale for the Scheme of Arrangement is set out below: The Amalgamation of Transferor Company 1 and Transferor Company 2 with Transferee Company will result in the following benefits for all three companies and the stakeholders involved.- (i) The business of the Transferor Company 2 and the Transferee Company is similar to each other. Hence, the Amalgamation will result into consolidation of the resources of both the companies; (ii) Create a unified structure, instead of three separate ent....
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....eree Company shall be allotted pursuant to amalgamation under this Scheme. In this regard it is submitted that Section 232(6) of the Companies Act, 2013 states that the scheme under this section 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. However, this aspect may be decided by the Hon'ble Tribunal taking into account its inherent powers. Further, the Petitioners may be asked to comply with the requirements and clarified vide circular no. F. No. 7/12/2019/CL-dated 21.08.2019 issued by the Ministry of Corporate Affairs. c) The Hon'ble Tribunal may kindly seek the undertaking that this Scheme is approved by the requisite majority of members and creditors as per Section 230(6) of the Act in meetings duly held in terms of Section 230(1) read with subsection (3) to (5) of Section 230 of the Act and the Minutes thereof are duly placed before the Tribunal. d) Hon'ble NCLT may kindly direct the Petitioners to file an affidavit to the extent that the Scheme enclosed to the Company Application and the Company Petition are one & sam....
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....hat the Petitioner Company shall also comply the provisions of Section 66 and other relevant provisions of the Companies Act, 2013. i) As per Clause 13(13.1 & 13.2) of the Scheme (Accounting Treatment for Amalgamation). Upon the Scheme becoming effective and with effect from the Appointed Date, the Amalgamation of the Transferor Companies with Transferee Company shall be accounted as per the below method: The Transferee Company shall account for the amalgamation of the Transferor Companies on the basis of 'Pooling of Interest' method as stated in Accounting Standard 14-Accounting for Amalgamations. In this regards it is stated that in Indian Accounting Standard (Ind AS) 103--prescribes application of pooling of Interest Method to account for common control business combinations. ... Any difference, whether positive or negative, shall be adjusted against the capital reserves (or "Amalgamation Adjustment Deficit Account" in some cases). In view of the above it is submitted that the difference so credited to "Capital Reserve arising out of Amalgamation" shall not be available for distribution of dividend and other similar purposes. j) As per Clause--14(14.1 to 14.3) ....
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....with Creditors as no sacrifice is called for. The rights of the Creditors are not affected as all the Creditors would be paid off in the ordinary course of business. In view thereof the meetings of the Creditors in the Applicant Companies were also dispensed with by this Tribunal by its Order dated 25th March 2021 on an undertaking to issue individual notices upon all Creditors which have been complied with. d) As far as the observation made in paragraph III(d) of the Report of Regional Director is concerned the Petitioner Companies undertake that the Scheme enclosed to the Company Scheme Application & the Company Petition is one and the same there is no discrepancy and no changes between the two. e) As far as the observation made in paragraph III(e) of the Report of Regional Director is concerned the Petitioner Companies undertake that, notices under Section 230(5) of the Companies Act, 2013 have been duly served upon the Regional Director, Registrar of Companies. Income Tax authorities, GST Authorities and Official Liquidator, in so far as Transferor Company is concerned, inviting representations if any within 30 days of receipt. The Petitioners further confirm that the appro....
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....unt credited to Capital Reserves on Amalgamation shall not be available for distribution. j) As far as the observation made in paragraph III(j) of the Report of Regional Director is concerned, the Petitioner Companies submit that there shall be no amendment to the Object Clauses of the Memorandum of Association of the Transferee Company by virtue of the Scheme save the change in Clause V of the Memorandum of Association of the Transferee Company which shall be amended in relation to consolidation of authorized capital pursuant to section 232(3)(i) the Petitioner Companies submit that the fees payable or stamp duty payable, if any, by the Transferee Company shall be in accordance with the provisions of Section 13 & Section 232(3)(i) of the Companies Act, 2013 or any other applicable provisions 10. The observations made by the Regional Director have been explained in Para 8 above. The clarifications and undertakings given by the Petitioner Companies have been explained in Para 9 above. The clarifications and undertaking given by the Petitioner Companies are hereby accepted by the Tribunal. 11. In response to the Affidavit in Rejoinder dated 2 July 2021 the Regional Director has f....