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TMI Blog2019 (9) TMI 1468X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the Scheme be binding on their respective shareholders. ii) The Petition has been filed jointly by Petitioner Companies stating that the Transferee Company was incorporated on 31st March 2006 under the name and style of "Velcan Renewable Energy Private Limited" with Registrar of Companies, Karnataka. It bears CIN U40107KA2006PTC038890. The registered address of the Transferee Company is situated at No. 572, Samruddhi Nilaya, Unit No.2, 2nd Floor, 1st Cross, Police Station Road, Hebbal, Bangalore-560024. iii) The main objects of the Transferee Company is to "contribute to sustainable development by supplying power, heat, energy in all forms including wood and any other kind of biomass both processed and unprocessed, in such a way as to cause minimum damage to the global climate, at the same time maximising the benefit to the people of India, France and other countries where the company operates and to promote Renewable energy in all its forms including electricity generation based on biomass combustion, electricity generation based on biomass gasification, energy efficiency, biogas, wind, hydro, solar and any other form of energy both for electricity generation and for other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransferee Company is Rs. 31,46,37,190/- divided into 3,14,63,719 Equity Shares of Rs. 10/- each fully paid-up. viii) The Board of Directors of the Transferor and Transferee Company at their respective meeting held on 20th November 2018 for approval of Scheme of Amalgamation under Section 230 to 232 of the Companies Act, 2013 have approved and adopted a Scheme of Amalgamation by virtue of which the Transferor Company is proposed to be amalgamated with the Transferee Company. 3. The Transferor Company and the Transferee Company had filed the joint Company Application No. (CAA) 02/BB/2019 before this Tribunal for seeking for dispensation of meetings of Equity Shareholders, Secured Creditors and Unsecured Creditors of the Transferor Company and Transferee Company. This Tribunal vide its orders dated 10th January, 2018 dispensed with the meetings of the Equity Shareholders and Unsecured Creditors of the Transferor Company and Transferee Company. 4. This Tribunal vide its orders dated 25th February 2019 directed the Petitioner Companies to issue Notice to all relevant statutory authorities including RD, ROC, Designated Nodal Officer of Income Tax Department, Assistant Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect. e. There are no prosecutions, complaints, technical scrutiny/inspections pending in this office against the petitioner companies. The Petition may be decided on merits. 7. The Reserve Bank of India vide letter bearing FE.BG.FID.No.3882/21.06.814/2018-19 dated 21.03.2019 stating that as a regulator it will not be ethical on the part of RBI to vet individual cases, as it will preclude it from taking action on contraventions, if any, committed by such companies. 8. The Income Tax Officer, Ward- 6(1)(2), Bangalore has filed a letter bearing F. No. NCLTB/NOC/ITO-W-6(1)(2)/ 2019-20 dated 02.04.2019 stating that they have no objection to the Scheme of amalgamation between M/s. South India Energy Consultants Private Limited with M/s. Velcan Renewal Energy Private Limited. On 29.05.2019, the Income Tax Officer, Ward-7(1)(3), Bangalore wrote letter bearing F. No./Notice u/s560 by ROC/ITO//W-7(1)(3)/19-20 stating that nil demand is outstanding against the company M/s. Velcan Renewable Energy Pvt. Ltd. and the Company is filing loss return for the last four Assessment Years (2015-16, 2016-17, 2017-18, 2018-19) and that the case of M/s. Velcan Renewable Energy Pvt. Ltd. has been select ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Transferor Company and to submit reports on the affairs of the Company. b) That the Petitioner Company may be directed to pay the professional fees of the Chartered Accountant as may be mutually agreed and that in case the Chartered Accountant charges exorbitant fee which is not acceptable to the Transferor Company, the Official Liquidator shall appoint other Chartered Accountant by cancelling the appointment of the Chartered Accountant. 12. The Authorized Signatories of the Petitioner Companies have filed affidavits dated 09.07.2019 in furnishing response to the observations of Regional Director, inter alia as follows: i) In compliance with Section 230-232 of the Companies Act, 2013 and pursuant to Clause 17 of the scheme of amalgamation of South India Energy Consultants Private Limited with Velcan Renewable Energy Private Limited and their respective shareholders, the scheme shall be effective on such date on which all applicable steps as referred to in Clause 17 of the Scheme are completed, including filing of the copy of the order of the Tribunal sanctioning the Scheme, with the Registrar of Companies (Clause 17.1.4). The Scheme shall take effect from the Appointed Dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) In our opinion, proper books of accounts, statutory registers, minutes and other related records as required by law have been kept by the Company so far as appears from our examination. c) Based on our scrutiny as aforesaid we are of the opinion that the affairs of the Transferor Company have not been conducted in a manner prejudicial to the interests of the Members of the Company or Public Interest as per the proviso to section 232 of the Companies Act, 2013." 14. Counsel for the Petitioners has also submitted a Memo dated 23.09.2019 clarifying the various compliances required as per Reserve Bank of India guidelines and they have confirmed that the Transferee Company is a wholly owned subsidiary of a Foreign Company and attracts the provisions of Foreign Exchange Management Act (FEMA), 1999 and as amended from time to time. The Transferee Company has complied with the requirements with respect to Foreign Direct Investment in the Company and is registered with RBI with No.FC2008 BGR 5284. The Transferee Company has filed the Entity Master Form to RBI in July 2018 and registered itself on the RBI Portal. 15. Heard the Counsels appearing for the parties. It is seen that the Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this order cause a certified copy of this order along with a copy of scheme of Amalgamation to be delivered to the Registrar of Companies for registration in accordance with applicable rules and regulations; and (7) The Registrar of Companies before registration as stated to ensure that stamp duty as fixed by Inspector General of Registration and Commissioner of stamps is furnished. Registration of the scheme must be effected on ensuring the compliance of the above by Registrar of Companies; (8) The acceptance of the Scheme is subject to compliance of following directions: a. The Transferee Company shall pay the differential stamp duty and fees, if any, after setting off the fee already paid by the Transferor Company on their respective capital in accordance with Section 232(3)(i) of the Companies Act, 2013. b. Petitioner Companies have to compound offences, as per Section 454 of the Companies Act, 2013 as may be applicable. c. The Petitioner Companies shall comply necessary FEMA/RBI/Enforcement Directorate regulations as applicable. d. The Transferee Company is also required to comply with the followings and provide an Affidavit by Managing Director/Director of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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