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In Re: Acclipse India Private Limited and others

Application for Scheme of Amalgamation under Sections 391 to 394 of the Companies Act, 1956 - Observation of Official Liquidator regarding clerical error - Observation of Regional Director regarding FIPB approval duly addressed - Held that:- It is submitted that before incorporation of Petitioner Company, the parent company i.e. Acclipse Ltd. NZ had invested a sum of INR 18,82,617/- for the purchase of various assets and other day to day expenses of Indian office from October 2009 till the Compa .....

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s transferred to the account of the parent company instead of claiming the same as a loss in the Income Tax Return.

The Regional Director has made an observation with regard to securing the necessary FIPB approval on account of M/s Acclipse Limited being a foreign Company. That in response it is submitted that investment of M/s Acclipse Limited (Foreign Company) in Acclipse India Private Limited (Petitioner Company) does not required any approval from FIPB. As per the Clause 3.7 read .....

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d as Annexure P-B.

For the reasons aforementioned and keeping in view the procedural requirements under Section 391 to 394 of the Companies Act, 1956 and as well as relevant affidavits and rules and due consideration to the report of the Regional Director, Ministry of Corporate Affairs, Noida and the Official Liquidator coupled with the affidavits filed by the authorized representative of the petitioner/Transferor Company No.1, the Scheme of Amalgamation of the petitioner-Transferor C .....

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te with Mr. Tarurag Gaur, Advocate for the petitioner Mr. Deepak Aggarwal, Advocate with Mr. M. Jayakumar, Official Liquidator JUDGEMENT AMIT RAWAL, J The present petition has been filed under Sections 391 to 394 of the Companies Act, 1956 for sanction of the Scheme of Amalgamation of Transferor Companies Nos. 1 to 3 with Transferree Company. The Scheme of Amalgamation has been annexed as Annexure P-9. The registered office of the petitioner Company/Transferor Company No. 1 is situated at Plot N .....

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1 to 3 has been annexed as Annexure P-10, P-11 & P-13 respectively and copy of resolution of Board of Directors dated 17.4.2014 of Transferee Company is at Annexure P-12 The petitioner-Transferor Company No.1 has filed a Company Petition No. 131 of 2014 seeking dispensing with the holding and convening of the meeting of Equity Shareholders, Secured and Unsecured Creditors of the Transferor Company No.1 and this Court vide order dated 7.8.2014 dispensed with the same. It is pertinent to menti .....

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ublication has been filed and both the Official Liquidator and Regional Director have filed their respective reports. As per report of the Official Liquidator dated 9.3.2015 it has been pointed out that there was some clerical error. The details of which have been given as under:- (5) Some clerical error in Company Petition No.157 of 2014 as under:- (a) Difference in Totaling of Balance sheet dated 31.3.2013 of Transferor Company No.2 Non petitioner Company- Medknow Publications and Media Privat .....

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s side comes ₹ 1888.13 lakhs, but written as ₹ 1888.17 Lakhs (difference 0.04 lakh) (c)Difference in Totaling of balance sheet dated 31.3.2014 of transferee Company- Wolters Kluwer India Private Limited. Total of Liabilities side was ₹ 615.56 Lakhs, but written as ₹ 615.57 Lakhs (difference ₹ 0.01 Lakh) Total of assets side comes ₹ 615.58 Lakhs, but written as ₹ 165.57 lakhs (difference 450.01 lakhs). It has also been stated in the report of the official .....

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cial Liquidator has made few observations as mentioned in Para 3 and 4. The deponent hereby files para wise reply to the observations as follows:- 1) It is submitted that before incorporation of Petitioner Company, the parent company i.e. Acclipse Ltd. NZ had invested a sum of INR 18,82,617/- for the purchase of various assets and other day to day expenses of Indian office from October 2009 till the Company incorporation i.e. 21.12.2009. On incorporation of the company, the same were duly accoun .....

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the Income Tax Return. It has been stated that amended Memorandum of Association has been annexed as Annexure P-1 whereby it has been mentioned that the present authorized share capital of the petitioner- Transferee shall be sufficient for issuance of shares pursuance to the Amalgamation. The Regional Director has also filed his report by way of affidavit dated 9.1.2015 and has taken the following objections:- 4. That the Deponent craves leave to submit that as per clause 13.4 of section D of t .....

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e of Chartered Accountant of India. 5. That the Deponent craves leave to submit that as per Ministry of Corporate Affairs General Circular No.1/2014 dated 15.1.2014, letter for furnishing the comments/observations, if any, in regard to scheme was sent to the office of Chief Commissioner of Income Tax, Gurgaon vide this Directorate's letter dated 11.11.2014. In this regard it is submitted that the letter has been received back undelivered with the Postal remark Refused . 6. That the Deponent .....

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clause 20 of Section D of the scheme it has been stated on the scheme becoming effective, the Transferor Companies shall be dissolved without going through the process of winding up and no person shall make assert or take any claims, demands or proceedings against the directors or officers thereof in his capacity as such director or officer except in so far be necessary be enforcing the provisions of this order. 8. That the Deponent craves leave to submit that the Valuation report is not attach .....

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of WKIPL shall, after adjusting the amount as specified in Scheme and 'Expenses of Scheme', be treated in the balance sheet of the Transferee Company in accordance with The Pooling of Interests method as prescribed under Accounting Standard-14 issued by The Institute of Chartered Accountants of India. The same has been agreed and approved by the Board of Directors of all the Companies by virtue of Clause 13.4 of the Scheme. 5. That in this paragraph, the Regional Director has mentioned t .....

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er Company itself. Copy of acknowledgement of Service is attached herewith and marked as Annexure P-A. 6. That in this paragraph, the Regional Director has made an observation with regard to securing the necessary FIPB approval on account of M/s Acclipse Limited being a foreign Company. That in response it is submitted that investment of M/s Acclipse Limited (Foreign Company) in Acclipse India Private Limited (Petitioner Company) does not required any approval from FIPB. As per the Clause 3.7 re .....

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exed as Annexure P-B. 7. That the said para is a virtual reproduction of what has been stated in the Scheme. However, in response to the observations contained in this paragraph, it is re-iterated that on the Scheme becoming effective, the Transferor Companies shall be dissolved without going through the process of winding up and no person shall make assert or take any claims, demands or proceeding against a director or officer thereof in his capacity as such director or officer except in so far .....

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as confirmed that there are no investigations or proceedings pending against it under Section 235 to 254 of the Act. For the reasons aforementioned and keeping in view the procedural requirements under Section 391 to 394 of the Companies Act, 1956 and as well as relevant affidavits and rules and due consideration to the report of the Regional Director, Ministry of Corporate Affairs, Noida and the Official Liquidator coupled with the affidavits filed by the authorized representative of the petiti .....

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