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2016 (3) TMI 383 - GUJARAT HIGH COURT

2016 (3) TMI 383 - GUJARAT HIGH COURT - TMI - Scheme of Amalgamation - Held that:- The Official Liquidator has filed his report dated 09.06.2015 in respect of the Transferor Company making only one observation and that is with regard to the treatment of employees of the Transferor Company. In this regard, it is submitted that the petitioner company has already clarified this aspect in its response to report of the Regional Director. It is stated that the Transferor Company does not have any empl .....

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6A of the Companies Act, 1956.

Having heard Mr. Navin K. Pahwa, learned counsel for the petitioner companies, Mr. Kshitij Amin, learned Central Government Standing Counsel on behalf of Mr. Devang Vyas, learned Assistant Solicitor General of India for the Regional Director and upon perusal of the reports of the Official Liquidator and the Regional Director, the reply filed on behalf of the petitioner Transferee Company and having considered the Scheme of Amalgamation together with rele .....

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ct, 1956 seeking the sanction of this Court for the Scheme of Amalgamation of Intelliswift Consultancy Services Private Limited with Intelliswift Software (India) Private Limited. 2. Intelliswift Software (India) Private Limited, the Transferee Company, filed Company Application No.10 of 2015 seeking dispensation of the meeting of the Equity Shareholders. By an order dated 16.01.2015, passed in Company Application No.10 of 2015, this Court ordered dispensation of the meeting of the Equity Shareh .....

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Limited, the Transferor Company, filed Company Application No.11 of 2015, seeking dispensation of the meeting of the Equity Shareholders of the petitioner Company. By an order dated 16.01.2015, passed in Company Application No.11 of 2015, this Court ordered dispensation of the meeting of the Equity Shareholders. It is reported that there are no Secured or Unsecured Creditors of the petitioner Company. 4. The petitioners, thereafter, filed Company Petition Nos.39 and 40 of 2015, seeking sanction .....

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nt to the order dated 13.02.2015, the petitioners have published the notice of the petitions in the Gujarati daily newspaper Gujarat Samachar and the English daily newspaper Indian Express, having circulation in Ahmedabad, on 20.02.2015 and 19.02.2015, respectively. The directors of both the petitioner companies have filed affidavits dated 05.03.2015, respectively, in support of the publication of the advertisements. 7. In response to the notice issued, the Regional Director has filed a common a .....

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me into force. Rule-12(2) of the Companies (Registration Offices and Fees) Rules, 2014 would have no application in the facts of the present case. It is further submitted that without admitting that there is any lapse on the part of the petitioners to comply with these Rules, both the Companies have uploaded Form GNL1 on 27.01.2016 on the MCA portal. 9. With regard to the observation contained in paragraph-2(d), it is submitted that the declaration made by the Transferor Company is correct and i .....

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not engaged in any activity which can be said to be governed by the guidelines of RBI applicable to NBFC. As such, no NOC from RBI is required for the purpose of proposing a Scheme of Amalgamation. 12. With regard to the observation contained in paragraph-2(g), it is submitted that neither of the two companies have committed any violation of the Companies Act or the Accounting Standards, as alleged. Without prejudice, it is submitted that none of the alleged violations would be relevant for the .....

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etirement benefits for the employees. Clause 1.5 of the Notes forming part of financial statement of the balance sheet as at 31.3.2014 (as annexed at Annexure-B with the petition, at Pg.57) would show that the Company has made adequate provision. It is further submitted that similar provision is also shown under the head short term provisions in the balance sheet (Pg.65). ii. The second observation is again with regard to the retirement benefits. It is submitted that the note no.1.11 as recorded .....

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e petitioner Transferee Company would fall in the category of Level-II Enterprise. iv. So far as sixth observation with regard to AS28 is concerned, it is submitted that the said observation is misconceived. The petitioner company has purchased the majority of the assets in the year 201314 and there is no impairment of the assets. No compliance of AS28 is thus necessary in the facts of present case. v. The fourth observation is with regard to payments to MSMEs. It is submitted that no amount is .....

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nsferee Company has also given a detailed explanation with regard to alleged violations of Companies Act by the Transferor Company as under: a. The first observation is to the effect that the petitioner Transferor Company is indulging into activities which are not as per the objects of the Company. It is submitted that this observation is misconceived in as much as Transferor Company is not engaged in any finance business, as alleged. Moreover, during the financial year 201314, the petitioner Tr .....

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tted that the petitioner Transferor Company has purchased the majority of the assets in the year 201314 and there is no impairment of the assets. No compliance of AS28 is thus necessary in the facts of present case. It is therefore submitted that the observations contained with regard to alleged violations of AS18 and 28 are misconceived. 15. With regard to observation that the petitioner has failed to file the basic statutory documents with the ROC for the year 2014 is concerned, it is submitte .....

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ncerned, it is submitted that paragraph1(c) of Part3 of the Scheme of Amalgamation in terms record that the accounting treatment will be as per AS14. It is further submitted that the accounting treatment will be same for all the assets upon sanction of the Scheme. 17. With regard to observation of compounding of the offence and compliance of provisions of Companies Act is concerned, it is submitted that the petitioner companies have not committed any offence and therefore, there is no question o .....

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In this regard, it is submitted that the petitioner company has already clarified this aspect in its response to report of the Regional Director. It is stated that the Transferor Company does not have any employee and therefore, no provision is made in that regard in the Scheme. The report however confirms that the affairs of the Transferor Company are not conducted in a manner prejudicial to the interest of its members or to the public interest. The Official Liquidator, however, has requested .....

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