TaxTMI 
TaxTMI 
2023 (3) TMI 1647
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.... for brevity, the "Transferee Company/ Applicant Company No. 4) under Sections 230 and 232 of the Companies Act, 2013 (for short to be referred hereinafter as the 'Act') and in terms of Rule 15 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 (for brevity, 'Rules') by inter alia seeking for the sanction of Scheme of Amalgamation (for brevity 'Scheme') of EMC IT Solutions India Private Limited and EMC Technology India Private Limited and EMC Software and Services India Private Limited with DELL International Services India Private Limited and their respective shareholders. The joint petition is maintainable in terms of Rule 3 (2) of the Rules. 2. The Scheme of Amalgamation provides for the Amalgamation of Transferor Company No.1, Transferor Company No.2 and Transferor Company No.3 with Transferee Company and their respective shareholders, and the consequent dissolution of the Transferor Companies without winding up, pursuant to Section 230 to 232 and other relevant provisions of the Companies Act, 2013, in the manner provided for in this Scheme and in compliance with the provisions of the Income Tax Act, 1961,. 3. The petitione....
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....Companies, stating that, as Clause 16.1 of the Scheme requires that upon the Scheme becoming effective and with effect from the Appointed Date, all assets and liabilities of the Company shall be transferred to the Transferee Company and the Company shall stand dissolved without winding upon, the question of our commenting on the accounting treatment does not arise. Further, Auditors of the Transferee Company submits that pursuant to the requirement of proviso to Sub- section (7) of section 230 of the 2013 Act, it is confirmed that the accounting treatment contained in the scheme is in compliance with the applicable Accounting Standards specified under Section 133 of the 2013 Act, and other generally accepted accounting principles. The aforesaid certificate is attached as Annexures 23, 24, 25 & 26 of the Petition. 9. The audited financial statement as on March 31, 2021, Provisional Unaudited Financials as on October 29, 2021 of the Transferor Company is attached as Annexure 4 & 5 to the petition. The Audited financials as on March 31, 2021 and Provisional Unaudited financials as on October 29, 2021 of the Transferor Company No. 2 is attached as Annexure 7 & 8 to the petition. Fur....
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.... (ii) The Appointed Date of the scheme is mentioned as 1.4.2022. (iii) As shares will be issued to foreign shareholders, the Transferee Company shall comply with FEMA/RBI regulations. In this regard, the transferee company shall furnish an undertaking before the NCLT. Further, the shareholding of the Transferee Company in the Transferee Co. 1 and Transferor Co. 3 shall stand cancelled without any payment of consideration and no fresh issue of shares to that extent will be done. (iv) As per the auditor's report for the financial year 2020-21, the Transferor Co. 3 has outstanding disputed statutory dues to the tune of Rs. 53,28,18,060. The Transferor Company 03 need to furnish an undertaking to the effect that the statutory dues will be settled as and when the claim crystalized. (v) As per the Balance Sheet for the financial year ending 31.03.2021, the Transferor Co. 3 have undisputed statutory dues to the tune of Rs. 10,00,00,000. The Transferor Company 03 need to furnish an undertaking to the effect that the statutory dues will be settled as and when the claim crystalized. (vi) According to note no. 14 of the Transferor Company No. 03 and ....
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....(v) of the report: The Transferor Company 03 hereby confirms that said undisputed statutory dues to the tune of Rs. 10,00,00,000 has already been settled / paid by the Company and no further demand is pending in this respect. 3. Reply to point 2(vi) of the report: The Transferor Company 3 hereby confirms that the amount of Rs. 10,00,000/- which was due to the Micro and Small Enterprises has already been settled / paid by the Company and there is no amount outstanding. 4. Reply to point 2(ix) of the report: It is hereby submitted and confirmed that Transferor Company 03 has duly complied with the Provisions of Section 188 of Companies Act, 2013 with respect to related party transaction carried out by the Petitioner Companies. 14. The Income Tax department has filed it report vide diary No. 4272 dated 10.10.2022 wherein it is observed that demand are outstanding and proceedings are pending in respect of Transferor Companies. Further, reply to the Income Tax report is filed vide diary No. 4502 dated 19.10.2022 submitting that the Transferor Companies have furnished their responses to Assistant Commissioner of Income Tax ("ACIT") acknowledging the outstanding dues ....