TMI Blog2020 (10) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... ompanies and Ms. Rupa Sutar, Deputy Director, office of Regional Director (Western Region), Ministry of Corporate Affairs, Mumbai. No objector has come before this Tribunal to oppose the Scheme and nor has any party controverted any averments made in the Company Petition. 3. The sanction of this Tribunal is sought under Sections 230 to 232 of the Companies Act, 2013, to a Scheme of Amalgamation of Orbicon Land Developers Private Limited (Petitioner No. 1/Transferor Company) with Bramhacorp Limited (Petitioner No. 2/Transferee Company) and their respective Shareholders. 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 require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reduce regulatory and legal compliances / filings and consequential reduction in administrative costs. 9. The Regional Director (Western Region), Ministry of Corporate Affairs, Mumbai [RD], has filed his report dated 11.02.2020 inter alia stating therein that save and except as stated in paragraph IV (a) to (g) of the said Report, it appears that the Scheme is not prejudicial to the interest of shareholders and public. 10. In paragraph IV of the said report, the RD has stated as follows:- (a) In addition to compliance of AS-14 (Ind AS-103), the Transferee Company shall pass 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 applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvations made by the RD, the Petitioner Companies have filed an affidavit in reply dated 27th February 2020, clarifying and undertaking as under: (a) In so far as the observations made in paragraph IV (a) the RD's Report is concerned, the Transferee Company undertakes that it shall pass necessary accounting entries in connection with the Scheme as per AS -14 (IND AS-103) as well as comply with other applicable Accounting Standards to the extent applicable. (b) In so far as the observation made in paragraph IV (b) the RD's Report is concerned, the Petitioners clarify that scheme shall 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mhacorp Limited (Transferee Company) has not filed the Balance Sheet for the FY 2017-18 and violated the provisions of section 137 of the Companies Act, 2013. (d) Orbicon Land Developers Private Limited (Transferor Company) has not filed Annual Return and Balance Sheet for the Financial Year 2012-2013 and 2013-2014. Hence there is a violation of section 159 and section 220 of the Companies Act 1956. It is pertinent to mention here that as the accounts of these period are not been filed by the Orbicon Land Developers Pvt. Ltd. (Transferor Company), the filing of the accounts for this period are doubtful and 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 Bramh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion made in paragraph 12(d) above is concerned, the Counsel for the Transferor Company states that they have done all the necessary compliances within the prescribed time and has not contravened any of the provisions of the Companies Act, 2013 and/or 1956. The Annual Return and Balance Sheet Profit and Loss Account [Financial Statements] for the year ended 31st March 2013 and 31st March 2014 respectively have been filed within the prescribed time and the details of the same are mentioned as below: The copy of challans of Form 20B and 23AC 23ACA for both the financial years are attached with the Affidavit in 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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