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TMI Blog2020 (11) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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, malls, etc. 4. That the board of directors of the petitioner-companies approved the scheme in their respective meetings held on November 16, 2018. The appointed date fixed under the scheme is August 1, 2018. 5. That the rationale for the scheme is that the restructuring would have following benefits : "(a) The business activities of the transferor company and the transferee company complement each other. In order to integrate the business carried on by both the companies, it is proposed to amalgamate the transferor company with the transferee company as this will enable the transferee company to have greater and optimal use of resources. (b) Considerable synergies of operations would be achieved, resulting in economies of scale, effective co-ordinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in paragraph IV(b) of the report of the Regional Director, learned authorised representative for the petitioner-companies submits that the appointed date, i. e., August 1, 2018 has been clearly indicated in the scheme in accordance with provision of section 232(6) of the Companies Act and the scheme shall become effective from the appointed date. The learned authorised representative further submits that the petitioner-companies have already complied with the requirements and clarification of Circular No. F. No. 7/12/2019/CL-I, dated, August 21, 2019 issued by the Ministry of Corporate Affairs by clearly specifying the appointed date in the scheme and hence the question of undertaking for compliance to the requirements of the said circular does not arise. "Appointed date" for the purpose of this scheme means 1st day of August, 2018 or such other date as may be fixed or approved by the National Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-company No. 2 and accordingly the requirement of taking approval of unsecured creditors by a meeting is not applicable. (d) The petitioner-company have to undertake to comply with section 232(3)(i) of the Companies Act, 2013, where the transferor company is dissolved, the fee, if any, paid by the transferor company on its authorised capital shall be set-off against any fees payable by the transferee company on its authorised capital subsequent to the amalgamation and therefore, the petitioners to affirm that they comply the provisions of the section. Apropos observations made in paragraph IV(d) of the report of the Regional Director, the learned authorised representative for the petitioner-companies submits that the transferee company will be eligible for set-off of fees on the authorised share capital paid by the transferor company and thus comply with the provisions of section 232(3)(i) of the Companies Act, 2013. (e) The hon'ble National Company Law Tribunal may kindly direct the petitioners to file an affidavit to the extent that the scheme enclosed to company application and company petition, are one and same and there is no discrepancy/any change/changes are made, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 61 of the Companies Act, 2013 and other applicable provisions of the Act. (h) The petitioner-company have to undertake to comply with section 232(3)(i) of the Companies Act, 2013, where the transferor company is dissolved, the fee, if any, paid by the transferor company on its authorised capital shall be set-off against any fees payable by the transferee company on its authorised capital subsequent to the amalgamation and therefore, the petitioners to affirm that they comply the provisions of the section. Apropos observations made in paragraph IV(h) of the report of the Regional Director, the learned authorised representative for the petitioner-companies submits that the transferee company will be eligible for set-off of fees on the authorised share capital paid by the transferor company and thus comply with the provisions of section 232(3)(i) of the Companies Act, 2013. 9. The observations made by the Regional Director have been explained and the clarifications and undertakings given by the petitioner-companies have been explained in paragraph 8 above. The undertaking filed by the petitioner-companies in response to the said report, is accepted by this Tribunal. 10. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8(3) of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 provides that any representation made to the statutory authorities notified under section 230(5), shall be sent to the National Company Law Tribunal within a period of thirty days from the date of receipt of such notice, and a copy of such rep resentation shall simultaneously be sent to the concerned companies. In case no representation is received within thirty days, it shall be presumed that the statutory authorities have no representation to make on the proposed scheme of compromise or arrangement... The Department did not raise any objection within the stipulated period of 30 days despite service of notice. Pursuant thereto, the schemes were sanctioned by the National Company Law Tribunal, Chennai vide orders dated October 16, 2017, October 20, 2017, October 26, 2017, December 28, 2017, January 10, 2018, April 20, 2018 and May 1, 2018 ; and vide orders dated May 18, 2017 and August 30, 2017 by the National Company Law Tribunal, Guwahati. Accordingly, the schemes attained statutory force not only inter se the transferor and transferee companies, but also in rem, since there was no objection raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have taken over their business along with all assets, liabilities, profits and losses, etc. In view of the provisions of section 170(1) of the Income-tax Act, the Department is required to assess the income of the appellants after taking into account the revised returns filed after amalgamation of the companies. In light of the aforesaid discussion, we find that the learned single judge had rightly allowed the writ petitions. We accordingly set aside the impugned judgment and order dated July 4, 2019 passed by the learned Division Bench, and restore the judgment dated April 30, 2019 passed by the learned single judge. Accordingly, the civil appeals are allowed. The Department is directed to receive the revised returns of income for assessment year 2016-17 filed by the appellants, and complete the assessment for assessment year 2016-17 after taking into account the schemes of arrangement and amalgamation as sanctioned by the National Company Law Tribunal." 13. From the material on record, the scheme appears to be fair and reasonable and does not violate of any provisions of law and is not contrary to public policy. Since all the requisite statutory compliances have been ful ..... X X X X Extracts X X X X X X X X Extracts X X X X
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