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2018 (5) TMI 2002 - AT - Companies LawSanction of Amalgamation Scheme - unlisted/private limited companies - issue of shares at a premium - HELD THAT:- The Tribunal has recorded disinclination to sanction the Scheme of Amalgamation as has been proposed on the ground that both the companies are unlisted/private limited companies, therefore, in the absence of explicit provision available in the Companies Act, 2013 to issue shares at a premium, the NCLT Bench is of the considered view that the scheme is not in compliance with Section 232 of the Companies Act, 2013, therefore, the Bench is not inclined to sanction the scheme of amalgamation as proposed. Section 232(3)(i) of Companies Act is applicable to all the companies and does not make a distinction whether the company is a private or public company or whether it is listed company or non-listed company. The company where issues shares at a premium, whether for cash or otherwise, a sum equal to the aggregate amount of premium received on those shares shall be transferred to a “securities premium account”. Thus there is no bar that the issues of shares at a premium or otherwise than cash also be resorted to by the company. It is the prerogative of the company to issue shares at a premium or otherwise depending upon the facts and circumstances of the situation. In the present case the shares are being issued by the transferee company to the transferor company for acquiring the assets of the company. If the fair value of the assets being acquired by the transferee company is more than the face value of the shares issued for the same, the company has no other alternative but to allot the shares at premium and the difference being carried to a “securities premium account” - in the present case, the compliance of Section 232(3)(i) has been made. The Tribunal’s observations for not sanctioning the scheme cannot be agreed upon - appeal allowed.
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