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2015 (3) TMI 816 - BOMBAY HIGH COURTApplication for scheme of amalgamation under Section 394 of the Companies Act,1956 - Regional Director observation regarding contradictory statement in affidavit in relation to beneficial owner of the shares - Evading capital gains tax - Evading income tax - Retrospective appointed date - Held that:- The Learned Senior Advocate appearing for the Petitioners has submitted that afore stated issues pertaining to fixing of the liability qua payment of income tax and capital gains may independently be decided by the tax authorities.- In my view, the Learned Senior Advocate of the Petitioners is right and the aforesaid issues as regards the liability, if any, of the Petitioners and their shareholders, towards payment of capital gains tax as well as income tax can be left to the tax authorities to be decided in accordance with the applicable laws at the appropriate stage without being influenced by the observations made herein. It is quite clear from the record that the Petitioners have been less than forthright in placing the facts on record. As I have already held, prima facie it is apparent that the Transferee was not the beneficial owner of the shares of the Transferor Company either on 1st or 7th April 2008. It is also clear that the Petitioners have taken inconsistent stands in this connection viz. in one place they say that the relevant date on which the Transferee was the beneficial owner of the shares was 1st April 2008 and in another place they say that this date was 7th April 2008. The Petitioners have also not come forth with the correct facts in respect of the two SPAs or the effect thereof. Further, the Petitioners have suppressed the income tax demands, which have undisputedly been raised on them, in the Petitions as well as in their various affidavits filed in this Court. To my mind these were relevant facts which were required to be placed on record by the Petitioners. As rightly pointed out by the Regional Director, the Petitioners have falsely stated in the affidavits filed with me that there were no income tax liabilities. To my mind there is no doubt that the Petitioners have sought to mislead this Court. It is no answer to say that the Court cannot look into these matters in its supervisory jurisdiction. Suppression of material facts and making false and incorrect statements is a very serious matter with serious consequences and it is the duty of the Court to examine the allegations of suppression etc. carefully and if found to be correct to take appropriate action against the party concerned. It is also not an answer to say that M. Dinshaw and K.B. & Sons have affirmed the transaction and have consented to the scheme in writing. Even if that be so, it was the duty of the Petitioners to come clean with the Court and place all the facts on record. The Regional Director prays that the Petitions ought to be dismissed on the ground of suppression alone. According to him a party should not be shown any latitude and indulgence in such matters. Ordinarily, I would have agreed with the Regional Director. However, in the facts of the present case and particularly in view of the final order I propose to make I am of the view that instead of dismissing the Petitions on this ground, imposition of costs on each of the Petitioners will meet the ends of justice. - The scheme of amalgamation conditionally approved.
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