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TMI Blog2019 (3) TMI 1647X X X X Extracts X X X X X X X X Extracts X X X X ..... tition is to obtain sanction of this Hon' ble Tribunal to the Scheme of Arrangement of Ad2pro Media Solutions Private Limited (Transferor Company) with Ad2pro Global Creative Solutions Private Limited (Transferee Company) and their respective shareholders and creditors. ii) The Applicant Company/Transferor hereinafter also referred to as the "Transferor Company" was incorporated on 25th October 2006 under the name and style "Ad2pro Media Solutions Private Limited', with the Registrar of Companies, Bangalore and it currently bears cm U72300KA2006PTC040779. The Registered office of the Transferor Company is situated at 2nd Floor, No. 10, Bannerghatta Road, Bengaluru - 560 078. iii) The authorised, issued subscribed and paid-up share capital of the Transferor Company as on February 02, 2018, was as follows: Authorised Capital Amount in INR 20,00,000 Equity shares of Rs. 10/- each 2,00,00,000/- 12,50,000 Optionally Convertible Preference Shares of Rs. 10 each 1,25,00,000/- Total 3,25,00,000/- Issued, Subscribed and Paid-Up Capital Amount in INR 15,91,543 Equity shares of Rs. 10/- each fully paid up 1,59,15,430/- Total 2,71,81,860/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d adopted the Scheme of Arrangement of Ad2pro Media Solutions Private Limited (Transferor Company) with Ad2pro Global Creative Solutions Private Limited (Transferee Company) at its meeting held on 16th March, 2018. The Board of Directors of the Transferee Company has approved and adopted the Scheme of Amalgamation of Ad2pro Media Solutions Private Limited (Transferor Company) with Ad2pro Global Creative Solutions Private Limited (Transferee Company) at its meeting held on 16th March, 2018. 3. The Transferor Company and the Transferee Company had separately filed the Company Application No. (CAA) 37/BB/2018 and Company Application No. (CAA) 35/BB/2018 before this Tribunal for seeking convening of meetings of the shareholders and unsecured creditors. This Tribunal vide its separate orders dated 13th July, 2018 dispensed with the meeting of shareholders and creditors of the Transferee Company as well as the shareholders of the Transferor Company and ordered for the meetings of the Secured and Unsecured Creditors of Transferor Company to be convened. 4. This Tribunal vide its orders dated 13 th August 2018 directed the Transferee Company to issue Notice to all relevant statutory auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.10.2018 making the following observations: i. As per Section 232(6) of the Companies Act, 2013, the Scheme shall clearly indicate a date from which it shall be effective. Though in the Scheme appointed date is mentioned as 01.02.2018, no effective date is mentioned. ii. Clause No. 18 of the Scheme mentioned that the scheme shall be effective from the Appointed date i.e., 01/02/2018, but clause No. 4.5 states contradictorily, which states that the effective date means the last of the dates on which the certified true copies of the order of the Tribunal(s) sanctioning the scheme are filed with the Registrar of Companies. In view of the provisions of section 232(6) of the Companies Act, 2013, which states that the scheme shall clearly indicate an appointed date from which it shall be effective and the scheme shall be deemed to be effective from such date and not at a date subsequent to the appointed date, Clause No. 1.4 of the present scheme needs either deletion or modification. iii. Transferee Company was incorporated on 06.12.2017, financial statements not yet filed. iv. Transferor Company in 2015-16 and 2016-17 have related party transactions. Necessary compliance unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner undertakes to comply with provisions of Section 232(6) of the Companies Act 2013 and the amalgamation of Ad2pro Media Solutions Private Limited with Ad2pro Global Creative Solutions Private Limited (the 'Transferee Company') shall be deemed to be effective from 01.02.2018. (ii) Para 32(2): the audited financial statements as on 31 March 2018 of the Petitioner Company are attached. (iii)Para 32(3): The Related Party Transactions in 2015-16 and 2016-17 have been made at arm's length in the ordinary course of business. The requirements of the Companies Act have been met up with and separate compliances are not required under Section 188 of the Companies Act, 2013. (iv) Para 32(4): That the Petitioner Company undertakes to pay the differential fee and the stamp duty, as may be applicable to any increase in authorised share capital as per Section 232(3)(i) of Companies Act, 2013, after setting off the fees and duties already paid by the Transferor Company in this respect. (v) Para 32(5): The various tax dues payable to tax authority for assessment years 2012-13 to 2015-16 has been disputed before various Tax Authorities/Tribunal/Court, in case Tax Authorities/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16-17 of the Transferor Company has disputed dues payable to tax authorities for assessment years 2012-13 to 2015-16. Transferee Company is required to give an undertaking to that effect, as the Transferor company is going to be dissolved. ix. Transferor company shall comply with the provisions and regulations of FEMA/RBI while allotting shares to shareholders of the transferor company since as per the annual return for the year 2016-17 transferor company has foreign shareholders viz., Ventureast Proactive Fund LLC and others. Further, as per the share exchange ratio report submitted, it is found that on 28.02.2018, the transferee company held 300 equity shares and 11,26,643 preference shares in the transferor company and Ventureast Proactive Fund LLC did not hold any shares. It seems there might be a share transfer/acquisition happened between the said foreign entity and transferee company. Furthermore, the transferee company does not have sufficient amount of authorised capital to issue 15,91,243 shares to the shareholders of the transferor company (as per the share exchange ratio mentioned at Clause No. 15 of the Scheme). Hence it needs to increase its authorised capital. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before this Hon'ble Tribunal seeking thereby the orders for sanction of amalgamation with Ad2pro Global Creative Solutions Private Limited (Transferee Company). ii. That pursuant to the orders of this Hon'ble Tribunal 09.11.2018, the Official Liquidator engaged one of his panel Chartered Accountant, ws S.L. Patil & Co, Chartered Accountants for scrutiny of the books of accounts and records of above Transferor Company. iii. That M/S S.L. Patil & Co, Chartered Accountants, have submitted their report dated 17.12.2018 on the affairs of Transferor Company wherein interalia it is stated that there are outstanding dues on account of dispute in respect of Income Tax and Service Tax as follows:- Name of the Statute Nature of Dues Amount Due (Rs.) Amount paid under protest (Rs.) Period to which it relates Forum where dispute is pending Income Tax Act, 1961 Tax 19,88,24,68 1,75,00,000 Fin Year 2010-11 to 2016-17 Commissioner of Income Tax Appeals- 1 Bangalore Finance Act, 1994 Service Tax 86,81,439 --- Fin Year 2012-13 to 2016-17 Customs, Excise and Service Tax Appellate Tribunal, Chennai iv. That M/S S.L. Patil & Co, Chartered Accountants, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals thereafter shall be paid by the Ad2pro Global Creative Solutions Private Limited (Transferee Company). That a Chartered Accountant has certified the same and the certificate is enclosed. c) That Ventureast Proactive Fund LLC held 150 equity shares and 7,66,168 preference shares in the Transferor Company i.e., Ad2pro Media Solutions Private Limited. Such shares were purchased by the Transferee Company on 21 st February 2018, i.e., before filing the scheme with National Company Law Tribunal, and thereafter Ventureast Proactive Fund LLC does not hold any shares in Ad2pro Media Solutions Private Limited. All regulatory compliances have been complied with respect to transfer of such shares, including filing of Form FC- TRS with the Reserve Bank of India. As a result of amalgamation and with respect to Clause 15 of the scheme, these shares held by the Transferee Company in the Transferor Company would get cancelled. d) That the authorised share capital of the Transferee Company is 12,00,000 shares of Re. 1/- each, aggregating to Rs. 12,00,000/- (Rupees Twelve Lakh). The paid up share capital is 11,26,943 shares of Re.l each. As a result of the amalgamation and as mentioned in C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of Concerned Tax Authorities and the decision of the Concerned Tax Authorities shall be binding; and (6) All the proceedings taxation and others, now pending by or against the Transferor Company be continued by or against the Transferee Company, if any; and (7) The Applicant Companies shall within thirty days of the date of the receipt of this order cause a certified copy of this order along with a copy of scheme of Amalgamation to be delivered to the Registrar of Companies for registration in accordance with applicable rules and regulations; and (8) The Registrar of Companies to ensure Compliance of Applicants' undertaking in Affidavits dated 18th December, 2018, 19th December 2018 and 09th January 2019 as well as stamp duty as fixed by Inspector General of Registration and Commissioner of stamps; and (9) Applicant Companies to compound offences, if any, as per Section 188 of the Companies Act, 2013. (10) This is subject to compliance by the Applicant Companies of the following: a. The applicable stamp duty on transfer of assets shall be paid by the Transferee Company after setting off the fee already paid by the Transferor Company. b. In case of Income Tax, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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