TMI Blog2017 (6) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... l ORDER 1. This Petition filed by the Petitioner Companies above named is coming up for final disposal before us on 24.04.2017 for the purpose of the approval of the Scheme of Amalgamation, as contemplated between the companies and its shareholders by way of Amalgamation of Superlite Auto Private Limited (Petitioner No.1/Transferor Company No.1), Sunlite Finvest Private Limited(Petitioner No.2/Transferor Company No.2) with Ferolite Jointings Limited (Petitioner No.3/Transferee Company). 2. A perusal of the petition discloses that initially the application seeking the directions for dispensing with the meetings of Shareholders, Secured and Unsecured Creditors of the Petitioner Companies was filed before the Hon'ble High Court of Delhi being Company Application (Main) 110/2016. The Hon'ble High Court vide its order dated 29.08.2016 was pleased to dispense with the requirement of convening of meetings of the Shareholders, Unsecured Creditors and Secured Creditors of the Petitioner Companies. 3. Subsequent to the above order dated 29.08.2016, the Petitioner Companies had preferred the instant Petition before the Hon'ble High Court of Delhi which vide order da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter dated 02.12.2016 to the Principal Commissioner of Income Tax, New Delhi, no observations or comments were received from the said office. It is stated that in response to the letter dated 2.12.2016 sent by the office of Regional Director to the RBI, New Delhi, it has received a letter dated 30.12.2016 from RBI requesting the office of the Regional Director to provide the copies of the audited financial statements including all the schedules of the companies. The office of the Regional Director vide its letter dated 27.03.2017 requested the petitioner company to provide the document desired by the RBI. It's also stated in the report that the Petitioner Companies have not violated laws such as Companies Act, 1956, FEMA, SEBI Act, RBI Act, etc. 7. The Regional Director in paragraph 9 of its reply has placed reliance on para 31 of the reply of Registrar of Companies in which it has been observed as under: (i) The transferor Company No. 1 has not filed its statutory documents i.e. annual return and balance sheet for the financial year 2015-2016 thereby prima facie violating provisions of section 129/134/137 of the Companies Act, 2013. (ii) It has been observed from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end income 2,76,11,501 96 Cash Bank Balance 1,62.61.665 81 The company is to be treated as an NBFC if its financial assets are more than 50 per cent of its total assets (netted off by intangible assets) and income from financial assets is more than 50 per cent of the gross income. Both these tests are required to be satisfied as determining factor for principal business of a company. The above facts prima facie indicate that the financial assets of transferee company constitute more than 50 per cent of their total assets and income from financial assets constitute more than 50 per cent of the gross income. As such this company is required to be registered with RBI as an NBFC in terms of Section 45-IA of the RBI Act, 1934. (iv) Further, as per the Non-Banking Financial Companies (approval of acquisition of transfer of control), Directions, 2015 issued vide RBI Notification No. DNBR.(PD).)029/CGM(CDS)-2015 dated July 09,2015, the NBFCs are required to obtain prior written perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... institution. It was stated that both the companies do not fall under the trigger point of 50% financial assets and income criteria and hence the company is not required to get itself registered as NBFC in terms of section 45-IA of the RBI Act, 1984. It is submitted that in none of the Transferor Company the Investment in Financial Assets exceeds the 50% limit as prescribed by RBI. Also, so far as the Income from Financial Assets is concerned it is imperative to note that primarily it includes the Dividend Income which is received from the Transferee Company only and since the Transferor Company Nos.1 2 do not have any business and are the companies under the same management, which is the prime reason for the present Scheme of Amalgamation before the Hon'ble Tribunal. It was also stated that none of the companies fall into the definition of NBFC/deeming provisions of NBFC and hence cannot be treated as an NBFC. Therefore, the question of obtaining prior written permission of RBI does not arise at all. 9. The Official Liquidator has filed a report wherein it has been stated that he has not received any objection against the proposed Scheme of Amalgamation from any person ..... X X X X Extracts X X X X X X X X Extracts X X X X
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