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TMI Blog2020 (10) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... areholders. The Transferor Company is 100% subsidiary of the Transferee Company. 4. The First and Second Petitioner Companies have approved the said scheme of Amalgamation by passing the Board Resolution in their respective meetings held on 13th June 2019, which are annexed to the Joint Company Petition. 5. The Learned Counsel for the Petitioners state that the Joint Company Scheme Petition has been filed in consonance with the order dated 08.08.2019 passed in CA (CAA) No. 2525/MB.III/2019 of this Bench. 6. The Learned Counsel for Petitioners further states that the Petitioner Companies have complied with all requirements as per directions of National Company Law Tribunal, Mumbai Bench. Moreover, the Petitioner Companies undertake to comply with all the statutory requirements, if any, as required under the Companies Act, 2013 and the rules made thereunder. The said undertaking is accepted. 7. The Learned Counsel for the Petitioner Companies, submit that the First Petitioner Company is engaged in business of infrastructure development, promoters, builders, construction contractors, land developers, estate brokers, estate agents, designer including landscape designers, decorators ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such accounting entries which are necessary in connection with the scheme to comply with other applicable Accounting Standards such as AS-5 (Ind AS-8) etc; (b) As per Part-I- Definitions Clause 1(1.2 & 1.4) of the Scheme,- "Appointed Date" means the 1st day of August 2018 for the purpose of Section 232(6) of the Companies Act, 2013 and Scheme shall be effective from the aforesaid date; "Effective Date" means the later of the dates on which the certified copies of the Orders sanctioning this Scheme, passed by the National Company Law Tribunal, or such other competent authority, as may be applicable, are filed with the Registrar of Companies at Pune, by BCL and OLDPL; In this regard, it is submitted that Section 232 (6) of the Companies Act, 2013 states that the scheme under this section 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. However, this aspect may be decided by the Hon'ble Tribunal taking into account its inherent powers. Further, the Petitioners may be asked to comply with the requirements and clarified vide circular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be effective from the Appointed Date which is a specific date of 1st August 2018. Further, the Appointed Date is not based on the occurrence of a trigger event which is key to the proposed scheme. Accordingly, the circular No. 7/12/2019-CL.1 dated 21.08.2019 issued by the Ministry of Corporate Affairs is not applicable to the present composite Scheme of Amalgamation. (c) The comments with regard to RoC's observations are given separately. (d) In so far as the observation made in paragraph IV (d) the RD's Report is concerned, the Petitioner Companies undertake to comply with the provisions of Section 232(3)(i) of the Companies Act, 2013 as regards to Combination of the Authorised capital. (e) In so far as the observation made in paragraph IV (e) the RD's Report is concerned, the Petitioner Companies undertakes that the Scheme enclosed to Company Application and Company Petition, are one and same and there is no discrepancy or any changes made. (f) In so far as observations made in paragraph IV (f) the RD's Report is concerned, the Counsel for the Petitioner Companies states that sanction of the Scheme by the National Company Law Tribunal, Mumbai Bench will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd their continuity of the accounts and the going concern concept of transferor company has been violated. In view of the above, prior period accounts have not been filed by the transferor company. Accordingly, the details of the accounts are required to be investigated. (e) It is also seen that Bramhacorp Limited (Transferee Company) has not filed form ADT-3 for resignation of statutory auditor Chinmay Vivek Pandit in the financial year 2017-18, Hence the company has violated the provision of section 140(2) of the Companies Act, 2013. (f) Further, it is observed that Bramhacorp Limited (Transferee Company) has turnover of ' 359 crore in the financial year 2018-2019. Thus, the company is required to appoint one women Director in the board as per the requirement of section 149 of the Companies Act, 2013. As the company has not appointed the women director on its board, this resulted into the violation of provision of section 149 of the Companies Act, 2013. 13. The Petitioner Companies have submitted clarifications in regard to the RoC's Report as follows: - (a) In so far as the observation made in paragraph 12(a) above is concerned, the Transferee Company states that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rejoinder. (a) In so far as the observation made in paragraph 12(e) above is concerned, the Counsel for the Transferee Company states that CA Chinmay Vivek Pandit was appointed as Statutory Auditor to fill the casual vacancy pursuant to section 139(8)(i) of the Companies Act, 2013, which arose due to the resignation of previous auditor and the said Auditor is to hold office till the conclusion of the next Annual General Meeting i.e. up till 29th September 2018. As there is no resignation provided under Section 140(2) of the Companies Act, 2013, therefore, there was no need to file e-Form ADT-3 and even in case of the resignation, it is an obligation on the statutory auditor to file ADT-3 and not on the Company. (b) In so far as the observation made in paragraph 12(f) above is concerned, the Counsel for the Transferee Company states that they have appointed Mrs. Mukta Supnekar (DIN 01785706) as woman Director on 27th October 2017, in compliance of the provisions of section 149 of the Companies Act 2013. The copy of e-Form DIR-12 along with its challan are attached with the Affidavit in Rejoinder. 14. In response to the reply affidavit filed by the Petitioner Companies, the RD h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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