TaxTMI 
TaxTMI 
TaxTMI 
2024 (10) TMI 985
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....d sale of commercial and residential real estate projects. 3. In the year 2019, the group companies to which the Appellants belong were in the process of undergoing corporate restructuring. Appellant No.2, pursuant to the group restructuring, infused in Appellant No.1 an amount of Rs.126,33,00,000 (Rupees one hundred and twenty-six crores and thirty- three lakhs only) by means of subscription of 12,633 units of 7% Unsecured Non-Convertible Debentures of Rs.1,00,000 each ("Debentures") issued by Appellant No.1. 4. The Appellants, pursuant to the group restructuring, had also proposed to merge and amalgamate Appellant No.1 with Appellant No.2 and accordingly, the Appellants taking into consideration the accounting, financial and taxation aspects of the restructuring at group level and in consideration of issue, allotment, and subscription of Debentures by the Appellants in the manner stated above determined the Appointed Date for merger of Appellant No.1 with Appellant No.2 as April 01, 2019. 5. The Appellants, to give effect to the proposed amalgamation, filed an application with the Hon'ble National Company Law Tribunal, Mumbai Bench vide Company Scheme Application number CA....
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....pecific calendar date or may be tied to the occurrence of an event such as grant of license by a competent authority or fulfilment of any preconditions agreed upon by the parties, or meeting any other requirement as agreed upon between the parties, etc., which are relevant to the scheme. c) 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 interest. 11. A bare perusal of the impugned order would show the said order is passed by the Ld. NCLT relying upon the General Circular No.9 of 2019 dated 21st August, 2019 as above, more particularly its Clause (c) of para 6, which is reproduced above. However, the Learned NCLT failed to notice the application for the scheme of merger was filed on 1st December, 2019 and in terms of the said para 6(c) of the Circular (Supra), the appointed date was fixed at 01.04.2019, which was within a year of f....
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....al (Supra). This Judgment has been approved by the Hon'ble Supreme Court in the case of Hindustan Lever (Supra) and at para 11 & 12 held that: "11. While exercising its power in sanctioning a scheme of arrangement, the Court has to examine as to whether the provisions of the statute have been complied with. Once the Court finds that the parameters set out in Section 394 of the Companies Act have been met then the Court would have no further jurisdiction to sit in appeal over the commercial wisdom of the class of persons who with their eyes open give their approval, even if, in the view of the Court better scheme could have been framed. This aspect was examined in detail by this Court in Miheer H. Mafatlal Vs. Mafatlal Industries Ltd., 1997 (1) SCC 579. The Court laid down the following broad contours of the jurisdiction of the company court in granting sanction to the scheme as follows:- 1. The sanctioning court has to see to it that all the requisite statutory procedure for supporting such a scheme has been complied with and that the requisite meetings as contemplated by Section 391(1)(a) have been held. 9. Once the aforesaid broad parameters about the requirements of a sche....
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.... observe that the procedure set out in the Act is met and complied with and that the proposed scheme of compromise or arrangement is not violative of any provision of law, unconscionable or contrary to public policy. The Court is not to exercise the appellate jurisdiction and examine the commercial wisdom of the compromise or arrangement arrived at between the parties. The role of the court is that of an umpire in a game to see that the teams play their role as per rules and do not overstep the limits. Subject to that how best the game is to be played is left to the players and not to the umpire. Both these principles indicate that there is no adjudication by the court on the merits as such." 15. With the aforesaid, it is clear that the Appellant Company has fulfilled all the requisite statutory compliances. However, Ld. NCLT modified the Appointed date considering the valuation report which is subsequent to the Appointed date. While modifying the Appointed date Ld. NCLT has not considered that the Appointed date 07.10.2017 is approved by the NCLT, Delhi vide order dated 22.10.2019 passed in CP No. CAA/144/ND/2018 in respect of Transferee Company. The alteration of the Appointed ....