TMI Blog2020 (11) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... : Hemant Sethi instructed by Hemant Sethi And Co. for the petitioners. Ms. Rupa Sutar, Deputy Director, Office of the Regional Director, MCA (WR), Mumbai ORDER V. NALLASENAPATHY (TECHNICAL MEMBER) .- 1. The sanction of the Tribunal is sought under sections 230 to 232 and other applicable provisions of the Companies Act, 2013 (the Act), to the scheme of amalgamation between Samrut Trading P. Ltd., and Essel World Leisure P. Ltd., and their respective shareholders. 2. The court was convened through video conference. Heard learned counsel for the petitioner-companies. No objector has come before this Tribunal to oppose the scheme and nor has any party controverted any of the averments made in the petition. 3. It is submitted by learned counsel for the petitioner-companies that petitioner-company No. 1 is engaged in trading in merchandise related articles related to amusement park, etc., and other amusement park related business activities and petitioner-company No. 2 is engaged in business to construct, run, take over, lease, manage amusement centers or parks of all the nature, hotels, theme parks, restaurants, kids play parks, family entertainment centers, mall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings and clarification. Further the observations made by the Regional Director and the clarifications and undertakings given by the petitioner-companies are summarized in the table below : Sl. No. Paragraph(IV) Regional Director report/Observation August 24, 2020 Response of the petitioner-companies (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. ; Apropos observation made in paragraph IV(a) of the report of the Regional Director, learned authorised representative for the petitioner-companies submits that the transferee company shall pass such accounting entries as may be necessary in connection with the scheme of merger to comply with Accounting Standards AS-14 and any other applicable accounting standards including AS-5 to the extent applicable. (b) As per Part-A-Definitions Clause 1(1.2 and 1.4) of the scheme. Apropos observation made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Tribunal. Apropos observations made in paragraph IV(c) of the report of the Regional Director, the learned authorised representative for the petitioner-companies submits that by the order delivered on March 3, 2020 passed in C. A. (CAA) No. 1653/MB/2018, the requirement to convene meeting of the equity shareholders of the petitioner-companies was dispensed with in view of consent affidavit provided by all the equity shareholders of the petitioner-companies and accordingly the requirement of taking approval of shareholders by a meeting is not applicable. This Tribunal in its order delivered in C. A. (CAA) No. 1653/MB/2018 directed that the meetings of the secured creditors of the petitioner-companies and unsecured creditors of petitioner-company No. 1 were not required as there are no secured creditors and unsecured creditors in the petitioner-companies. Further, the requirement to convene meeting of unsecured creditors of petitioner-company No. 2 was dispensed with in view of consent affidavit provided for 90.44 per cent. of the total outstanding amount of the unsecured creditors of petitioner-company No. 2 and accordingly the requirement of taking approval ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 2013 to (i) the Central Government through the office of Regional Director, Western Region, Mumbai, (ii) Registrar of Companies, Mumbai, (iii) Concerned Income-tax authority ; (iv) Official liquidator (in case of petitioner-company No. 1) on March 16, 2020. The petitioner-companies through their learned authorised representative submit that no representations or objections have been received from any of the regulatory authorities. Further, the approval of the scheme by this Tribunal may not deter any such authorities to deal with any of the issues arising after giving effect to the scheme and the petitioner-companies submit that any issues arising out of the scheme will be met and answered in accordance with the law. (g) As per Part-B Clause-13(13.1 and 13.2) of the scheme (combination of authorized capital). In this regard it is submitted that the same is subject to compliance with the provisions of section 13 and section 61 of the Companies Act, 2013 and other applicable provisions of the Act. Apropos observations made in paragraph IV(g) of the report of the Regional Director, the learned authorised representative for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, seek leave of this Tribunal to file revised returns under the Income-tax Act, 196l and to claim refunds and/or credits for taxes paid. 12. On this point, counsel for the petitioner-companies has placed reliance on the judgment of the hon'ble Supreme Court in the case of Dalmia Power Ltd. v. Assistant CIT (reported in Civil Appeal Nos. 9496-99 of 2019 (arising out of S. L. P. (C) Nos. 19678-681 of 2019), decided on December 18, 2019) [2020] 420 ITR 339 (SC), where the hon'ble court permitted the transferee companies to file revised returns beyond the time limit prescribed under the Income-tax Act, 1961. The hon'ble court decided this question in favour of the assessee by holding as under (page 352) : Sub-section (5) of section 230 requires that a notice of the meeting under sub-section (3) of section 230 along with all the documents pertaining to the scheme, shall be sent to the Central Government, and statutory authorities such as the Income-tax Department, RBI, SEBI, RoC, etc., and such other sectoral regulators or authorities which are likely to be affected by the compromise or arrangement. The statutory authorities could raise objections within 30 day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gamation from the National Company Law Tribunal. In the facts of the present case, it was an impossibility for the assessee-companies to have filed the revised returns of income for the assessment year 2016-17 before the due date of March 31, 2018 since the National Company Law Tribunal had passed the last orders granting approval and sanction of the schemes only on April 22, 2018 and May 1, 2018... On a plain reading of section 119(2)(b), we find that this provision would not be applicable where an assessee has restructured their business, and filed a revised return of income with the prior approval and sanction of the National Company Law Tribunal, without any objection from the Department. Rules of procedure have been construed to be the handmaiden of justice. The purpose of assessment proceedings is to assess the tax liability of an assessee correctly in accordance with law. Section 170(1) of the Income-tax Act provides that the successor of an assessee shall be assessed in respect of the income of the previous year after the date of succession... Sub-section (1) of section 170 makes it clear that it is incumbent upon the Department to assess the total income of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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