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2015 (5) TMI 324 - DELHI HIGH COURT

2015 (5) TMI 324 - DELHI HIGH COURT - TMI - Application for the Scheme of Arrangement under Sections 391 to 394 read with Section 100 of the Companies Act, 1956 - Observations of Regional directors duly addressed - Held that:- Pursuant to the notices issued, the Official Liquidator sought information from the petitioner companies. Based on the information received, the Official Liquidator has filed a report dated 30th August, 2014 wherein he has stated that he has not received any complaint agai .....

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ce with Section 2(19AA) of the Income Tax Act, 1961, which stipulates several conditions to comply. He, therefore, prays that petitioner/demerged company may be directed to submit an undertaking to comply with those conditions. In para 6 of his report, he submitted that a perusal of the shareholding pattern of the transferor company shows that its 69.50% shares are held by the Non Resident Indian. He, therefore, prays that the transferor company may be directed to give an undertaking for all com .....

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es to the NRI shareholders, in case of amalgamation, RBIís permission is not required. However, the petitioners have undertaken to comply with the requirements of Section 2(19AA) of the Income Tax Act, 1961 and also to comply with the provisions of FEMA in allotting shares to the Non Resident Indian, if required. In view of the undertakings given by the petitioners, the observations raised by the Regional Director do not subsist.

No objection has been received to the Scheme of Arrange .....

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tion is hereby granted to the Amended Scheme of Arrangement under Sections 391 and 394 of the Companies Act, 1956. - Application for schemer of arrangement approved. - COMPANY PETITION NO. 364/2014 - Dated:- 26-3-2015 - Sudershan Kumar Misra, J. For the Appellant : Mr. Ashish Middha For the Regional Director : Rio Ms. Aparna Mudiam Sudershan Kumar Misra, J. 1. This joint petition has been filed under Sections 391 to 394 read with Section 100 of the Companies Act, 1956 by the petitioner companies .....

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he transferor company was incorporated under the Companies Act, 1956 on 28th November, 2007 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi. 4. The transferee company was incorporated under the Companies Act, 1956 on 28th February, 2007 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi. 5. The resulting company was incorporated under the Companies Act, 1956 on 24th March, 2014 with the Registrar of Companies, NCT of Delhi & Haryana at New Delhi .....

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e capital of the company is ₹ 59,80,680/- divided into 5,98,068 equity shares of ₹ 10/- each fully paid-up. 8. The present authorized share capital of the resulting company is ₹ 1,00,000/- divided into 10,000 equity shares of ₹ 10/- each. The issued, subscribed and paid-up share capital of the company is ₹ 1,00,000/- divided into 10,000 equity shares of ₹ 10/- each fully paid-up. 9. Copies of the Memorandum and Articles of Association of the transferor, transf .....

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opy of the Scheme of Arrangement has been placed on record and the salient features of the Scheme have been incorporated and detailed in the petition and the accompanying affidavit. It is submitted that the scheme, inter alia, provides for: (a) amalgamation of the transferor company with the transferee; (b) demerger of Plot measuring 4691 sq. yards in Khasra No. 1889 in Village Kantha, Distt. Baghpat, Delhi Saharanpur High at Village Kantha, Khekra Distt. Baghpat, U.P. i.e. the demerged undertak .....

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eliminate duplication of work, better and more productive utilization of various resources and will enable the undertakings concerned to effect internal economies and optimize productivity. It is further claimed that the Scheme will contribute in furthering and fulfilling the objects of the companies concerned and enabling the optimum growth and development of their combined business and separate entity. 11. The petitioners have also moved an application being CA 2127/2014 seeking amendment of .....

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rs. It is also stated that there are no secured creditors of the applicant company. Under the circumstances, the application was allowed and the amended Scheme was taken on record. 12. So far as the share exchange ratio is concerned, the Scheme provides that, upon coming into effect of this Scheme, the transferee company shall issue and allot equity shares to the shareholders of the transferor company in the following ratio: 01 equity share of ₹ 10/- each of the transferee company, credite .....

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liabilities of demerged business which are proposed to be transferred at book value. The shares shall be allotted on pro-rata basis to the shareholders of the transferee company. 13. It has been submitted by the petitioners that no proceedings under Sections 235 to 251 of the Companies Act, 1956 are pending against the petitioner companies. 14. The Board of Directors of the transferor company, the transferee company and the resulting company in their separate meetings held on 28th April, 2014 ha .....

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quired for sanction of the Scheme of Arrangement. Vide order dated 19th May, 2014, this court allowed the application and dispensed with the requirement of convening and holding the meetings of the equity shareholders and unsecured creditors of the petitioner companies, there being no secured creditor of the petitioner companies, to consider and, if thought fit, approve, with or without modification, the proposed Scheme of Arrangement. 16. The petitioner companies have thereafter filed the prese .....

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ntaining the publications have been filed along with the said affidavit. 17. Pursuant to the notices issued, the Official Liquidator sought information from the petitioner companies. Based on the information received, the Official Liquidator has filed a report dated 30th August, 2014 wherein he has stated that he has not received any complaint against the proposed Scheme of Arrangement from any person/party interested in the Scheme in any manner and that the affairs of the transferor company do .....

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employees of the demerged company engaged in demerged undertaking shall become the employees of the resulting company and all the employees of the transferor company shall become the employees of the transferee company without any break or interruption in their services. 19. The Regional Director in Para 5 of his report has, however, submitted that para 3.2 of Part-3 of the Scheme provides that demerger shall be in accordance with Section 2(19AA) of the Income Tax Act, 1961, which stipulates sev .....

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sactions involving foreign banks/entities. In reply to the first observation, the petitioner companies in their reply have submitted that the compliance of Section 2(19AA) of the Income Tax Act, 1961 is necessary to enable the petitioners to avail the benefit of Income Tax Act. So far as the second observation of the Regional Director is concerned, the petitioners have submitted that as per RBI s circular for allotting shares to the NRI shareholders, in case of amalgamation, RBI s permission is .....

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