9911796707
TMI Blog2020 (10) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner Transferee Company. 2. The Petitioner Companies had earlier filed Company Application CA (CAA) No. 65 of 2018, seeking dispensation of meetings of Equity Shareholders of both the Petitioner Companies for the purpose of considering and if thought fit, approving with or without modification(s), the proposed Scheme of Amalgamation. It was stated in the application that both the petitioner Companies have no creditors either Secured or Unsecured. This Tribunal vide order dated 16th July, 2018 made in Company Application CA (CAA) No. 65/NCLT/AHM/2019, dispensed with the meetings of Equity Shareholders of both the petitioner Companies on the basis of the consent affidavits received from the Equity Shareholders of both the Petitioner Companies. By the said order, the petitioner Companies were also directed to send a common notice in Form No. CAA. 3 along with copy of the Scheme of Amalgamation to (i) the Central Government through the Regional Director, North West Region; (ii) the Registrar of Companies, Gwalior, (iii) the Income Tax Authorities and (iv) the Official Liquidator (in case of the petitioner Transferor Company) in compliance of sub section (5) of section 230 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nse to the said query, it is submitted at paragraph 5 of the additional affidavit dated 7.2.2019 in the petition, that, AS-15 provides for the accounting treatment of short-term and long-term 'Defined Contribution Plan' or 'Defined Benefit Plans' taken up by the employer - Transferor / Petitioner Company for the welfare or benefit of its employees. Defined Contribution Plans are the post-employment benefits in which a Company pays fixed contributions into a separate fund and will have no obligations to pay any amount in future. Further, it is explained that, Defined Benefit Plans are the post -employment benefits which are not covered by the defined contribution plans. However, if the employer has no statutory obligation to enroll in any defined plan and chooses to not implement any such plan, then it shall have no disclosure or reporting liability under AS-15. The Petitioner Transferor Company is a share trading concern with only 5-6 employees and it is not covered under Employee Provident Fund Act, Gratuity Act and the Bonus Act and hence there is no reporting obligation under said Accounting Standard - 15 on the Petitioner/Transferor Company. 8.2 The another que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany. The Demand Notice u/s. 156 as raised on the Petitioner Transferor and Petitioner Transferee Companies are duly annexed with the additional affidavit at Annexure R-1 Collectively. Further it is submitted that the Petitioner Transferor Company aggrieved by the said assessment order for the AY 2012-13 dated 28.12.2018 filed statutory Appeal under Part A of Chapter XX of the Income Tax Act, 1961 before the Commissioner of Income Tax (Appeals)-III Indore on 28.1.2019 bearing case No. 413737451280119 which is pending. Further, it is submitted that survey proceedings u/s. 133-A conducted by the Department during its regular course of work and general assessment u/s. 143(3) is carried out after the survey proceedings. The Income Tax Department can open the assessment proceedings against the assesse pursuant to the survey under section 133-A only upon serving a Notice u/s. 143(3) to the assesse for relevant assessment years whereas it is submitted by the Petitioner Transferor Company that in the present matter, the Petitioner Transferor Company has not received any notice till date. It is also submitted that there is no block assessment under section 158BC of the Income Tax Act, 1961 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if, in case Department is not satisfied with the genuineness of any transaction, then such transaction could be deemed to be considered as its income and accordingly taxed and hence it is submitted that such bald allegations lack merits. 8.4 In response to the query raised by the Official liquidator considering the letter dated 29.10.2018 that the assessment proceedings for the AY 2018-19 in relation to the Petitioner Companies shall be completed by 30.09.2020 and until then the sanction of the said Scheme of Amalgamation may not be in the interest of the Revenue. It is submitted at paragraph 16 of the additional affidavit as filed in the petition, that, upon sanctioning of the scheme, the Petitioner Transferee Company shall absorb the Petitioner Transferor Company with all of its assets and liabilities alongwith the rights and duties as on the appointed date at the same terms as if, such assets and liabilities are that of the Petitioner Transferee Company and once the scheme is approved, the same shall always be subjected to the assessment/reassessment proceedings against the Petitioner Transferor Company as a successor entity for the period upto the appointed date of the amalgam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not accepted any deposit from public covered under section 73 to 76 of the Companies Act, 2013. In response to the query pertaining to the trade mark disclosure, the Petitioner Transferor Company has submitted that the Petitioner Transferor Company has not registered any trademark in its name. In response to the observation pertaining to preservation of the books and compliance of accounting standards u/s. 133 of the Companies Act, 2013 the Petitioner Transferor Company undertakes the compliance and submits that compliance of section 133 is already annexed with the petition at Annexure P-15 collectively. In response to the preservation of books, accounts, papers and record, the Petitioner Transferee company undertakes not to dispose of the same without prior permission of the Central Government under section 239 of the Companies Act, 2013. In response to the compliances of other laws, the Petitioner Transferor Company undertakes to comply with all applicable laws and not to be absolved from any of its statutory liabilities. 9. In response to the queries raised by the Regional Director in his report dated 10.10.2018, the Petitioner Companies, in response to the query at paragr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice dated 18.10.2018 issued and served by authorized representative of the Petitioner Companies as directed vide this Tribunal's order dated 16.7.2018 and 12.10.2018 respectively. The Petitioner also placed on record, the acknowledgement receipts and delivery report as Annexure R-6 collectively to the affidavit. It is also submitted that, the Income Tax search and survey proceedings have been conducted which is duly disclosed in the Company Petition at paragraph 30 in order to show the bonafides of the Petitioner Companies. In response to the query at paragraph 2(h) of affidavit of the Regional Director that petitioners have not filed e-form GLN-1 at the portal of MCA. In response to the same, it is submitted that the Petitioner Transferor Company and the Petitioner Transferee Company have filed e-form GLN-1 at the e-portal of MCA on 29.1.2019 and 31.1.2019 respectively and copy of challan of GLN-1 is also annexed as Annexure R-7 collectively to such additional affidavit. In regard to the payment of legal fee/cost, the Petitioner Companies undertake to pay the same as per the directions of this Tribunal. It is also mentioned at paragraph 2(i) of the affidavit of the Regional D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... feror Company is required to comply with all the applicable provisions of law and shall not be treated as absolved from any of its statutory liabilities. The cost to be paid to the Official Liquidated is quantified at Rs. 10,000/- in respect of the Petitioner Transferor Company which shall be paid by the Petitioner Transferee Company and the amount towards legal fees/expenses incurred by the Office of the Regional Director in respect of the Petitioner Companies is quantified at Rs. 25,000/- which shall be paid by the Petitioner Transferee Company. 14. Filing and issuance of drawn up order is hereby dispensed with. All the authorities to act upon the copy of this order along with the Scheme authenticated by the Registrar of this Tribunal and Registrar is directed to issue the authenticated copy of the certified order at the earliest to the Petitioner Companies. The Petitioner Companies are further directed to lodge copy of this order, along with schedule of the immovable assets of the Petitioner Transferor Company with authenticated copy of the order as issued by the Registrar with concerned Superintendent of Stamps for adjudication of Stamp Duty on the same within 60 days from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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