TMI Blog2020 (9) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory compliances having been fulfilled, this Tribunal, sanctions the Composite Scheme of Arrangement, annexed as Annexure 9 with the Company Petition as well as the prayer made therein. The scheme is approved. - CP/1201/CAA/2019 in CA/744/CAA/2019 - - - Dated:- 10-1-2020 - R. Varadharajan, Member (J) And Anil Kumar B., Member (T) For the Appellant/Petitioner/Plaintiff : V. Srinivasan For the OL : B. Palani, Authorized Representative ORDER ANIL KUMAR B., MEMBER (T) 1. This Joint Company Petition has been filed by M/s. SRT Ascendancy Solutions Private Limited (hereinafter referred to as the Transferor Company - 1 ), M/s. MSE Financial Services Limited (hereinafter referred to as the Transferor Company - 2 ), M/s. Madras Enterprises Limited (hereinafter referred to as the Demerged Company or Transferee Company ) and M/s. MEL Edutech Services Private Limited (hereinafter referred to as Resulting Company ) for the purpose of the approval of the Composite Scheme of Arrangement (hereinafter referred to as Scheme , as contemplated between the above mentioned companies, under Section 230 to 232 and other applicable provisions of the Companies A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notices have been served to the Regional Director, RoC, Chennai, Official Liquidator, Security Exchange Board of India (SEBI), National Stock Exchange of India Ltd., BSE Limited, Central Depository Services Limited, Metropolitan Stock Exchange of India Ltd., and other regulatory authorities. 6. It is seen from the records that the Petitioner Companies have filed affidavit of service on 06.12.2019 in relation to the compliance of the order passed by the Tribunal as noted above and a perusal of the same discloses that the Petitioner Companies have effected the paper publication as directed by by the Tribunal in one issue of News Today (Tamil Nadu Editions ) in English and Makkal Kural in Tamil on 28.11.2019. Further notices have been served to (i) The Regional Director, Southern Region, Chennai, (ii) Registrar of Companies Chennai, (iii) Assessing Officer, Income. Tax Department (iv) Official Liquidator, Chennai (v) National Stock Exchange Limited, (vi) Bombay Stock Exchange Limited and (vii) Securities Exchange Board of India, (viii) Metropolitan Stock Exchange of India Limited, (ix) Multi Commodity Exchange of India Limited on 28.11.2019, in compliance with the directions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial to the interest of its members, or creditors or to the public. 11. The Chartered Accountant appointed by the Official Liquidator verified the books of accounts of the Transferor Companies and has made certain observations of which those are significant, are extracted hereunder; (i) As per the audited financial statements for the financial year ended 31.03.2018 of the Applicant Company - 2 that there is a disputed service tax demand for ₹ 7,76,092/- belongs to period of 2010 -2011 which is pending appeal before CESTAT. (ii) As per audited financial statements the Chartered Accountants further observed that under note 18, contingent liabilities are reported and they are that; (a) Estimated amount of contracts remaining to be executed on capital account and not provided for is nil (previous year Nil) (b) The Department of Commissioner of Central Excise, Chennai has filed an SLP before the Supreme Court, (on levy of Service Tax on the brokerage retained by sub - brokers of the Company during the year 2000 and 2001), against the order passed by the CESTAT, Chennai dated 01.06.2009. The CESTAT had passed orders in favour of the Company, thereby deleting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny - 1 and 2. 12. Despite notice being served, there is no representation from the any other statutory authorities including the Department of Income Tax. However, in relation to the Income Tax dues, eventhough none appeared on behalf of the Income Tax authorities, it has been brought to the notice of this Tribunal that the Office of the Assistant Commissioner of Income Tax, Corporate Circle - 4(1) had issued a letter (Letter No. AACCM3039N/CC-4(1)/2019-20 dated 23th August 2019, objecting to the present Scheme based on the observation that the Transferor Company - 2 in the present Scheme is in arrears of tax demand to the tune of ₹ 24,86,454/- as follows; Sl. No. Asst. years Amount (Rs) 1 2001 - 02 59,110/- 2 2002 - 03 3,14,052/- 3 2004 - 05 658/- 4 2006 - 07 14,888/- 5 2007 - 08 2,26,147/- 6 2008 - 09 1,25,124 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect the wrong calculation of interest to the extent of ₹ 18,633/- u/s Section 234C. No reply received so far. 5 2007 - 08 2,26,147 Refund of ₹ 4,41,190/- was available as per the letter of Assistant Commissioner of Income Tax dated 07.08.2009. reminder letter dated 16.09.2009 was send for the refund of ₹ 4,44,190/- addressed to Asst. Commissioner of Income Tax. 6 2008 - 09 1,25,124/- In fact, it should be a refund of ₹ 2,14,776 as per assessment order, but in the said assessment Oder refund was mentioned as ₹ 1,25,124/-instead of ₹ 2,14,776/-. Letter dated 16.09.2011 addressed to ACIT for rectification of error and requesting the refund. The difference in refund was allowed on 20.02.2015 and the actual refund adjustment was done only for ₹ 86,160/- 7 2012 - 13 8,89,180/- As per assessment order a refund of ₹ 1,48,769/- has to be received as per assessment made u/s 154. Further the Department has not taken into account the tax paid o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to proceed against the Transferee Company in accordance with law, if any amount is found due and payable. The Hon'ble NCLAT also in the Ad2Pro Creative Solutions Private Limited -Vs- Regional Director (SER) MCA, in Company Appeal (AT) No. 98 of 2019, in relation to the dues of the Income Tax has held in para 7 as follows; 7..........Admittedly, proceedings are pending in appeal before ITAT and depending upon the outcome of such proceedings, the Transferee Company has undertaken to satisfy all demands emanating from and raised by the competent tax authorities. The Scheme having been approved and sanctioned and the same being in consonance with law, no fault can be found with the Transferee's undertaking to satisfy all demands raised by the tax authorities as finally determined by due process. The Appellants are justified in maintaining that the tax liabilities would be satisfied by the Transferee as determined by the competent forum seized of the matter in accordance with the approved Scheme which admittedly does not come in conflict with any express provision of the Companies Act, 2013. The legitimate interests of the concerned Tax Authorities have been lawfully protect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above, if there is any deficiency found or, violation committed qua any enactment, statutory rule or regulation, the sanction granted by this Tribunal 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. 21. While approving the Scheme as above, it is clarified 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 payment is due or required in accordance with law or in respect to any permission/compliance with any other requirement which may be specifically required under any law. THIS TRIBUNAL DO FURTHER ORDER: (i) That all properties, right and interest of the Amalgamating Companies shall pursuant to section 232(3) of the Companies Act, 2013 without further act or deed be transferred to and vest in or be deemed to have been transferred and vested in the Transferee Company as per the terms of the Scheme of Amalgamation. (ii) That all the liabilities, powers, engagements, obligations and duties of the Transferor Companies shall pursuant to Section 232 (3) of the Companies Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Employees of the Demerged Company employed in the Demerged Undertaking shall stand transferred to the Resulting Company on the same terms and conditions at which these employees are engaged by the Demerged Company without any interruption of service as a result of transfer; and (xii) That the Appointed date for the Scheme is 1st April 2019 (xiii) That the name of the Transferee / Demerged Company viz. M/s. Madras Enterprises Limited is hereby changed to M/s. MSE Financial Services Limited and the Transferee / Demerged Company shall file requisite forms with the Registrar of Companies in this regard. (xiv) That the name of the Resulting Company viz. MEL Edutech Services Private Limited is hereby changed to M/s. Madras Enterprises Private Limited and the Resulting Company shall file the requisite forms with the Registrar of Companies in this regard. (xv) That the Transferee Company shall file the revised Memorandum and Articles of Association with the Registrar of Companies, Chennai and further make the requisite payments of the differential fee (if any) for the enhancement of authorized capital of the Transferee Company after setting off the fees paid by the Transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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