TMI Blog2014 (5) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... n has been filed under Sections 391- 394 of the Companies Act, 1956( hereinafter referred to as Act‟) by the Petitioner Company seeking sanction of the Scheme of Amalgamation (hereinafter referred to as Scheme‟). The Transferor Company is a wholly owned subsidiary of Transferee Company. A copy of the proposed Scheme of Amalgamation is filed along with this application. 2. The Registered Offices of both the Petitioner Companies are situated at New Delhi, within the jurisdiction of this Court. 3. The details of respective dates of incorporation of the petitioner companies, their authorized, issued , subscribed and paid up capital have been set out in the petition. 4. The copies of Memorandum and Articles of Association of the Petitioner Companies have been enclosed with the Petition. 5. The copies of resolutions passed by the Board of Directors of the Petitioners Companies approving the scheme have also been filed along with the Petition. 6. Learned Counsel for the Petitioner Companies submits that no proceedings under sections 235 to 251 of the Companies Act, 1956 is pending against the Petitioner Companies. 7. The petitioner company had earlier filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that, upon sanction of the Scheme of Amalgamation all the employees of the Transferor companies shall become the employees of Transferee Company without any break or interruption in their services upon sanctioning of the Scheme of Amalgamation by the Hon‟ble Court. 12. The Regional director has also raised the certain objections in his affidavit to which a Rejoinder affidavit dated 25.04.2014 was filed on behalf of the Petitioner Company. The objections raised by the Regional Director and its reply by the Petitioner Company is as follows: a. The Regional director has submitted that the scheme is incomplete vague and liable to be dismissed on the grounds that there is no dissolution clause of the Transferor Company in the scheme or in the Petition. The Petitioner Company in response to the objection has stated that the Petitioner Company in the prayer clause of the Petition has sought a direction from the Hon‟ble High Court of Delhi for dissolution of Transferor Company, without following the process of winding up. Further, the Hon‟ble High court under section 394 of the Companies Act, 1956 can order dissolution of the transferor Company, without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in response to the said objection has stated that since profits of the Transferor Company are exempted u/s 80IC of the Income tax Act, 1961, its income is non taxable and therefore no advance tax was to be deposited in FY 2012-13 with the Income Tax authorities. However, on account of book Profits in the Transferor company at the year end, the provisions of Minimum Alternative tax (MAT) were attracted and therefore advance tax was to be deposited with the income Tax authorities. The petitioner company has submitted that MAT is calculated on Book Profits in accordance with Schedule VI of Companies Act, 1956 and thus can be computed only after the Annual accounts are audited by auditors and therefore the tax on Book Profits were deposited by the company at the time of filing its return with the Income tax authorities. The Transferor Company has deposited the tax due on Book Profits of ₹ 1,18,74,010/- along with the interest on 28.11.2013 with the income tax authorities. Further, the Regional director in compliance of MCA circular no. 1/2014 dated 15.01.2014 had sent a letter dated 06.02.2014 to Chief Income Tax Commissioner, New Delhi to examine the scheme of amalgamation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Transferor Company will vest with the Transferee Company therefore there is no loss caused to the Transferee Company. During the year the company has fully written off loan granted in earlier years to Career launcher Educational Foundation aggregating ₹ 112,878,251. Accordingly, in our opinion such loan was prejudicial to the interest of the Company. The Petitioner Company in response to said objection has stated that the loan, in fact, was infrastructure charges recoverable from Career Launcher Education Foundation on account of running of business school from the premises owned by the company. Initially due to inability to pay these infrastructure charges were converted into a loan, which was returnable and was carrying interest at market rates. Inability to pay and the closure of the business school has lea to the write off of these charges by the company in its books a provision for which was made in the full in the previous financial year. g. The Regional director further in its affidavit has stated that auditor of company has reported transferee company is not maintaining the inventory records. The petitioner Company in response to the said objection has s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gamation. Consequently sanction is hereby granted to the Scheme of Arrangement under Section 391 and 394 of the Companies Act, 1956. 16. The petitioner companies shall comply with the statutory requirements in accordance with law. Certified copy of the order be filed with the Registrar of Companies within 30 days from receipt of the same. In terms of the provisions of Section 391 and 394 of the Companies Act, 1956 and in terms of the Scheme, the whole or part of the undertaking, the property, rights and powers of the Transferor company be transferred to and vest in the Transferee Company without any further act or deed. Similarly, in terms of the Scheme, all the liabilities and duties of the Transferor Company be transferred to the Transferee company without any further act or deed. Upon the Scheme coming into effect, the Transferor Company shall stand dissolved without winding up. 17. It is, however, clarified that this order will not be construed as an order granting exemption from payment of stamp duty or taxes or any other charges, if payable in accordance with any law; or permission/ compliance with any other requirement which may be specifically required under any law. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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