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TMI Blog2019 (7) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... A copy of the scheme of amalgamation has been placed on record. 2. The "transferor company", Aadhunik Realtors P. Ltd., was incorporated on January 18, 2007 under the provisions of the Companies Act 1956, having its registered office B-1/H-3, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi-110 044. 3. The "transferee company", Haldiram Products P. Ltd., was incorporated on August 29, 1996 under the provisions of the Companies Act, 1956, having its registered office at 19A, Shivaji Marg, Najafgarh Road, New Delhi- 110 015. 4. A perusal of the petition discloses that initially the first motion application seeking direction for convening the meeting of shareholders and creditors of both the companies was filed before this Tribunal being C. A. (CAA) No. 153 (PB) of 2017 under sections 230-232 of the Companies Act, 2013. In the order dated March 7, 2018 the meetings of the shareholders, secured creditors and unsecured creditors of both the petitioner-companies were dispensed with. 5. On April 20, 2018 the petitioners were directed to carry out publication in the newspapers Business Standard English Delhi edition as well as in Business Standard Hindi Delhi edition. In a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he authorized share capital of the transferor company with that of the transferee company after amalgamation. As per the provision of section 230(3)(i) of the Companies Act, 2013 it is clearly implied that the fees to the Registrar of Companies, NCT of Delhi and Haryana for the addition of the authorized share capital of the transferor company with that of the transferee company after setting off the fees already paid by the transferor company shall be payable by the transferee company after amalgamation. (ii) Reply to point No. 10-Any fractional shares arising out of the exchange shall be paid in cash and/or will be sold among the members/shareholders will not attract the provisions of section 230(10) of the Companies Act, 2013. As this is among the shareholders of the transferor company and transferee company. As per clause 4 of the scheme, all the liabilities of the transferor company shall be paid by the transferee company after amalgamation. Further, disputed statutory dues which are not crystallized and finalized are still pending as per the details mentioned in the audit report of the transferee company, i. e., Haldiram Products P. Ltd., as annexure A point (vii)(b). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been conducted in a manner prejudicial to the interest of its members or to public interest. 15. The petitioners in response of the report filed by the official liquidator have filed their reply on June 8, 2018 and reiterated the aforesaid position and undertook to pay the applicable stamp duty for the transfer of property as per the Transfer of Property Act, 1882 to the Government as applicable. 16. The Income-tax Department has filed its representations in respect of both the companies. The Department of Income-tax in respect of transferor company has submitted that there are certain brought forward losses of transferor company and there is no outstanding demand pending to be paid by the transferor company. 17. In respect of transferee company, the Revenue Department has raised an objection that the scheme has been made to avoid taxes. Since, M/s. Adhunik Realtors P. Ltd., has huge losses which will be adjusted with the income of M/s. Haldiram Products P. Ltd. Therefore, the ultimate effect of the scheme will have result in some tax benefit or even it is framed with an object of saving tax and it may result into tax avoidance. 18. It is also submitted by the Department t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 1, 2018 and submitted as follows : "(a) It is submitted that the aforesaid facts mentioned in point 4.1 of Part III of the scheme attached with the first motion petition and second motion petition filed before the hon'ble National Company Law Tribunal on November 15, 2017 and March 22, 2018 and stated that all 'undertaking' of the transferor company shall, without any further act, instrument or deed, be and stand transferred to and vested in and/or be deemed to have been and stand transferred to and vested in the transferee company as a going concern so as to become the estate, assets, rights, title and interests and authorities of the transferee company. Further, it is submitted that the amount of fixed assets includes the land value of Rs. 3,22,59,069 and building value of Rs. 4,27,40,931 which is not included in the fixed asset amount due to forfeited of earnest money amounting to Rs. 7,50,00,000 and the same is disclosed in the report on valuation of shares and share exchange ratio dated November 30, 2017 submitted by P. R. Kumar and Co., Chartered Accountants of Adhunik Realators P. Ltd., the transferee company (copies of scheme and valuation report attache ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take, on behalf of the applicant-transferee company Haldiram Pro ducts P. Ltd., to pay the applicable stamp duty as per the Indian Stamp Act to the Sub-Registrar's Office of the Treasury as per the applicable rate for transfer of said land and building from the transferor company to the transferee company after amalgamation." 23. It is seen that the transferee company has undertaken to pay the applicable stamp duty as per the Indian Stamp Act, 1899 as applicable. Besides, in respect of the clarification made by the petitioner-companies the Regional Director and the official liquidator have shown their satisfaction vide affidavit filed on December 12, 2018 and November 30, 2018 respectively and the same fact has been duly recorded in the order dated January 2, 2019. 24. It is submitted that the appointed date for amalgamation provided in the scheme will be April 1, 2017. 25. In the joint petition it has been affirmed that no proceedings under sections 206 to 229 or Chapter XIV of the Companies Act, 2013 are pending against the petitioner-companies. 26. Certificates of respective statutory auditors of both the petitioner-companies have been placed on record to the effect that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of Corporate Affairs, the report of official liquidator and the report of the Income-tax Department there appears to be no impediment in sanctioning the present scheme. 33. Consequently, sanction is hereby granted to the scheme under sections 230 to 232 of the Companies Act, 2013. 34. The petitioners shall however remain bound to comply with the statutory requirements in accordance with law. 35. Notwithstanding the above, if there is any deficiency found or, violation committed qua any enactment, statutory rule or regulation, the sanction granted by this court to the scheme will not come in the way of action being taken, albeit, in accordance with law, against the concerned persons, directors and officials of the petitioners. 36. While approving the scheme as above, we further clarify that this order should not be construed as an order in any way granting exemption from payment of stamp duty, taxes or any other charges, if any, and payment in accordance with law or in respect to any permission/compliance with any other requirement which may be specifically required under any law. 37. THIS TRIBUNAL DO FURTHER ORDER : (i) That the transferor company shall stand dissolved wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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