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TMI Blog2019 (12) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... the Companies Act, 2013( for brevity 'the Act') read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 (for brevity 'the Rules') and the said Scheme is also annexed as Annexure "13" in the Company Petition. 2. The Transferee Company is a public listed company incorporated on 04.04.2006 and the Registered Office of the Transferee Company is situated New Delhi which falls outside the jurisdiction of this Tribunal and falls within the jurisdiction of NCLT, New Delhi. 3. The Composite Scheme of Arrangement which is contemplated between the Companies involves two steps, which is; (a) Demerger of the Demerged Undertaking of the Demerged Company into Resulting Company (Part -B of the Scheme) (b) Amalgamation of the Residual Transferor Company with the Transferee Company (Part - C of the Scheme) 4. From the records, it is seen that in the First Motion Application was filed before this Tribunal vide CA/454/CAA/2019 wherein the Transferor Company and Resulting Company had sought for a direction to dispense with the meeting of the Equity/Preference Shareholders and Creditors and based on such application moved under Sections 230-232 of the Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra 10 as follows; "It is submitted that clause 20 of Part D of the scheme it is proposed to convert the resulting company into a private limited company as part and parcel of the scheme without having to follow separately the process under Section 14 of the Act. In this connection as the conversion of a public limited company into private limited company has now been delegated to the f jurisdictional Regional Directors, the Resulting Company may be directed to follow the procedure laid down in the Act and rules framed thereunder for the conversion." 8. Apart from the above observation, the Regional Director, after examining the Scheme has decided not to make any objection to the Scheme. 9. In relation to the observation made by the Regional Director in para 10, the authorized signatory of the Resulting Company viz. I. Gaurav Malik, has filed an affidavit vide Diary No. 6010 on 22.11.2019, wherein at para 6 it has been stated that the Petitioner Company (Resulting Company) undertakes to comply with the provisions of the Companies Act, 2013 for the conversion of the public limited company into a private limited company. 10. The Official Liquidator has filed his report on 22.10.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining 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 protected and their right to recover the tax dues as determined by ITAT or any other competent forum as the case may be, remains intact." 14. In Company Petition CAA-284/ND/2018 vide Order dated 12.11.2018, the NCLT New Delhi has made the following observations with regard to the right of the IT Department in the Scheme of Amalgamation,"taking into consideration the clauses contained in the Scheme in relation to liability to tax and also as insisted upon by the Income Tax and in terms of the decision in RE: Vodafone Essar Gujarat Limited v. Department of Income Tax (2013) 353 ITR 222 (Guj) and the same being also affirmed by the Hon'ble Supreme Court and as reported in (2016) 66 taxmann.com. 374(SC) from which it is seen that at the time of declining the SLPs filed by the revenue, however stating to the following effect vide its order dated A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ursuant to Section 232 of the Companies Act, 2013, be transferred and vested in the Resulting Company for all intents, purposes and interests of the Demerged undertaking subject nevertheless to all changes now affecting the same and; (ii) All liabilities (if any) and duties of Demerged Undertaking be transferred without further act or deed, to the Resulting Company and accordingly the same shall pursuant to Section 232 of the Companies Act, 2013, be transferred to and become the liabilities and duties of the Resulting Company; and (iii) Any proceedings pending by or against the Demerged undertaking be continued against the Demerged Company or the Resulting Company, as the case may be, as per Clause 7 and 8 of the Scheme. (iv) All the services of all 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 (v) That all properties, right and interest of the Amalgamating Companies shall pursuant to section 232 (3) of the Companies Act, 2013 without furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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