TaxTMI 
TaxTMI 
TaxTMI 
2022 (4) TMI 1041
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....), Navatan Commercial Private Limited being the Petitioner No. 6 abovenamed ("Transferor Company No. 5" or "Petitioner No. 6"), Neer Suppliers Private Limited being the Petitioner No. 7 abovenamed ("Transferor Company No. 6" or "Petitioner No. 7") with Khattu Housing Solutions Private Limited being the Petitioner No. 1 abovenamed ("Transferee Company" or "Petitioner No. 1") whereby and whereunder the Transferor Companies are proposed to be amalgamated with the Transferee Company from the Appointed Date, viz 1st day of April, 2019 in the manner and on the terms and conditions stated in the said Scheme of Amalgamation ("Scheme"). 2. The Petition has now come up for a final hearing. Ld. Authorized Representative for the Petitioners submits as follows:- (a) The Scheme was approved unanimously by the respective Board of Directors of the Petitioner Companies at their meetings held on 10/02/2020 respectively. (b) The circumstances which justify and/or have necessitated the Scheme and the benefits of the same are, inter alia, as follows:- (i) For the purposes of better, efficient and economical management, control and running of the business of the undertakings concerned and also fo....
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....ed 01/07/2021, the Petitioner(s) have duly served such notices on the Regional Director, MCA on 13/07/2021, Registrar of Companies on 14/07/2021, Official Liquidator on 13/07/2021 Income Tax officer on 13/07/2021. The Petitioner(s) have also published such advertisements once each in the Business Standard and Aajkaal in their respective issues dated 22/07/2021. An affidavit of compliance duly affirmed on 28/07/2021 in this regard has also been filed by them. (h) All statutory formalities requisite for obtaining the sanction of the Scheme have been duly complied with by the Petitioners. The Scheme has been made bona fide and is in the interest of all concerned. 3. Pursuant to the said advertisements and notices the Regional Director, Ministry of Corporate Affairs, Kolkata ("RD"), Official Liquidator, High Court, Calcutta have filed their representations before this Tribunal. 4. The Official Liquidator has filed his report dated 16th July, 2021 and concluded as under:- In Paragraph No. 9 That the Official Liquidator on the basis of information submitted by the Petitioner Companies is of the view that the affairs of the aforesaid Transferor Companies do not appear to have been....
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....al in his report dated 22/03/2021 has also confirmed that the above two companies were under inquiry. (Copy of the report of ROC, WB dated 22/03/2021 marked as Annexure-I is enclosed herewith for perusal and reference). Paragraph 4 (b) of Rejoinder: With reference to para 2 (b), it is stated that if the scheme is sanctioned then it is not going to effect the said and the letter of ROC report has been submitted on 19/01/2016. Further, in future also if there is any non-compliance then it can be carried against the Transferee Company and if any information is asked then the Transferee Company will forward all the information's. Paragraph 2 (c) of RD Affidavit: Appointed Date is 1st April 2019. In terms of the Circular no. 09/2019 dated 21.08.2019 of the Ministry of Corporate Affairs, "where the 'appointed date' is chosen as a specific calendar date, it may precede the date of filing of the application for scheme of merger/amalgamation in NCLT. However, if the appointed date is significantly ante dated beyond a year from the date of filing. The justification for the same would have to be specifically brought out in the scheme and it should not be against public inter....
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....as AS-5 or IND AS-8 etc. Paragraph 4 (f) of Rejoinder: With reference to para 2 (f), it is stated that Part-B of Clause 12 of the Scheme it is stated inter alia, that accounting entries by the Transferee Company shall be made in accordance with the applicable Accounting Standards/Indian Accounting Standard-14. Further, it is stated that the petitioner's companies undertake to comply with Accounting Standard- 14/AS-5 or other applicable accounting standard. Paragraph 2 (g) of RD Affidavit: 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 section 230(1) read with sub-sections (3) to (5) of section Companies Act 2013 in meeting duly held in terms of 230 of the said Act and the Minutes thereof are duly placed on record. Paragraph 4 (g) of Rejoinder: With reference to para 2 (g), it is stated that meeting of shareholders and unsecured creditors was dispensed by Hon'ble National Company Tribunal vide order dated 11th January, 2021 in C.A. (CAA) No. 726/KB/2020 as shareholders and unsecured creditors of respective petitioner companies have given consent in wri....
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....n'ble NCLT twice notices to Income Tax Department (i.e., respective income tax assessing officer) has been served and till date petitioners companies has not received any communication from the Income Tax Department. The petitioner's company are regular in filing of income tax return. Further, the sanction of scheme is not prejudicial to the public interest. Paragraph 4 (k) of Rejoinder: It is further stated and submitted that the petitioners' companies undertake that if there are any deficiencies found, or violation committed relating any enactment, statutory rules or regulation, the sanction granted by the Hon'ble Tribunal to the scheme will not come in the way of action being taken in accordance with the law, against the concerned persons, directors, and official of the petitioners and Transferee Company. 6. After hearing submissions made by the Ld. Authorized Representative appearing for the Petitioners, it is ordered that in case of any default including any Provisions of Income Tax Act in this respect of the Transferor Companies the Income Tax department, the ROC, West Bengal and all other Statutory Department shall be at liberty to initiate appropriate pro....