TMI Blog2020 (12) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... ecified in sub-sections (1) and (2) of section 232 of the Companies Act, 2013 has been complied with, and hence the Scheme of Amalgamation, as approved by the Boards of both the Transferor and Transferee Companies, is hereby sanctioned, as prayed - Scheme is sanctioned - application allowed. - CP (CAA) No. 09/BB/2020 and CP (CAA) No. 10/BB/2020 - - - Dated:- 7-9-2020 - Rajeswara Rao Vittanala, Member (J) And Ashutosh Chandra, Member (T) For the Appellant : Girish Kumar, PCS, Prema Hatti For the Respondents : Ganesh R. Ghale, Advocates ORDER Ashutosh Chandra, Member (T) 1. The present Petitions have been filed by M/s. Bloom Energy International (India) Private Limited ('Petitioner/Transferor Company') and M/s. Bloom Energy (India) Private Limited ('Petitioner/Transferee Company') (hereinafter referred to as 'Petitioner Companies') under Sections 230 to 232 and other applicable provisions of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 by inter alia seeking that the Scheme of Amalgamation be sanctioned by this Hon'ble Tribunal so as to be binding on the Petitioner Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom State of Tamilnadu to the State of Karnataka with CIN: U74999KA2004PTC049952 and having its registered office at North Block, 3rd Floor, Rajajinagar IT/BT Park, No: 1, 2, 3 4, Rajajinagar Industrial Estate, Rajajinagar, Bangalore-560044. Its Authorised Capital as on 31.03.2019 is ₹ 90,00,000/- divided into 9,00,000 Equity Shares of ₹ 10/- each and the Issued, Subscribed and Paid-up Capital is ₹ 90,00,000/- divided into 9,00,000 Equity Shares of ₹ 10/- each fully paid-up and it is stated that as on the date of filing the Petition, there is no change in the Capital structure of the Company. Its main objects inter alia are to carry on the business in India or elsewhere of designing, manufacturing, supplying and marketing of fuel cell systems by using electronically charged particles etc. (4) The Board of Directors of the Transferee Company at its meeting held on 04.07.2019 have approved and adopted the Scheme of Amalgamation and inter alia resolved as under: RESOLVED THAT consent of the Board be and is hereby accorded for approving the Scheme of Amalgamation of M/s. Bloom Energy International (India) Private Limited with M/s. Bloom Energy (Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Companies Act, 2013, read with Rule 7of the Companies (Accounts) Rules, 2014 and other generally accepted accounting principles. (9) Clause 5 of the Scheme pertaining to consideration and cancellation of shares inter alia states that 'for every 106 (One Hundred and Six) equity shares of the Transferor Company, 100 (One Hundred) equity shares of the Transferee Company would be issued to the shareholders of the Transferor Company.' (10) It is stated that the Scheme does not in any way violate, override or circumscribe any provisions of the Companies Act, 2013/1956 and the Rules, Regulations and guidelines made thereunder and none of the Directors of the Petitioner Company is interested in the Scheme otherwise than as shareholders in general. (11) It is further stated that no investigation proceeding is pending against the Petitioner Company under Sections 210 to 227 of Companies Act, 2013 and also there is no winding up Petition pending against the Petitioner Company in any Court in India. 3. It is stated that the Transferor and Transferee Companies had filed Company Applications bearing CA (CAA) No.60/BB/2019 and CA (CAA) No.59/BB/2019 respectively befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13, and pay the difference fee, after setting of the fee already paid by the Transferor Company on its respective capital. Transferee Company shall give an undertaking to that effect. (3) As per the Statutory Auditors report of the Transferee Company, there are certain dues of Income Tax as at 31.03.2019 which have not been deposited by the Transferee Company. (4) Both the Transferor Company and the Transferee Company have related party transactions during the year 2017-18 and 2018-19. Necessary compliance under Section 188 of the Companies Act, 2013 may be submitted to the satisfaction of the ROC. (5) There are no prosecutions, complaints, technical scrutiny/inspections pending against the Petitioner Companies. 6. The Regional Director, MCA, has filed an Affidavit dated 12.05.2020 while making similar observations as stated by the ROC, and has further observed that the Transferee Company needs to comply with the provisions of Section 135 of the Companies Act, 2013 and necessary compliance u/s 135 of Companies Act, 2013 may be submitted to the satisfaction of ROC. Further, Transferee Company may furnish NOC from the Income Tax Department in respect of certain due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AYs. 11. The Official Liquidator has filed OLR No.44 of 2020 dated 10.06.2020 in OP. (CAA) No.09/BB/2020 by inter alia stating that the Official Liquidator for scrutiny of the books of accounts and records of the Transferor Company has engaged M/s. T. Gandhi Co., Chartered Accountants, which, after examining the affairs of the Transferor Company, in its report dated 27.05.2020, has inter alia opined that the affairs of the Company have not been conducted in a manner prejudicial to the interest of the members or public interest as per section 232 of the Companies Act, 2013. Therefore, the Official Liquidator prays to pass such order(s) on the merits of the case subjection to objection, if any, by other sectoral regulators. 12. In response to aforesaid observations/reports, the Petitioner Companies vide reply Affidavits dated 20.06.2020 and 22.06.2020, respectively, have inter alia stated as follows: (1) The Petitioner confirm that both Transferor and Transferee Company have complied upto date under the regulations of FEMA/RBI. Further hereby confirm and undertake that the Transferee Company will do all the compliance under the regulation of FEMA/RBI, after approv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained whenever required. Further hereby inform that Section 188(1) of Companies Act, 2013 shall not apply to any transactions entered into by the Company in its ordinary course of business other than transactions which are not on an arm's length basis. Further the Petitioner undertakes that the Transferee Company will comply as per the provision of Section 188 of Companies Act, if any, after approval of the Scheme by this Tribunal. (5) It is stated that as per Section 135(5) of the Companies Act, 2013 and Rule 8 of the Companies (CSR Policy) Rules, 2014 r/w Schedule VII of the Companies Act, 2013, the Transferee Company has duly constituted CSR Committee and contributed CSR fund to the eligible entities from time to time. The Transferee Company has disclosed all the details in the Annexure of the Directors report as per the provisions of the Act and the copies of which have been placed on record. (6) Vide separate sworn Affidavits dated 05.09.2020 filed by the Petitioner Transferor and Transferee Companies it has been stated that they do not fall under the threshold for CCI approval. 13. Heard Mr. Girish Kumar M.S., learned PCS for the Petitioner Companies, Smt.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under any law, and the same shall be dealt with by the respective Authority in accordance with the extant Laws and Rules governing such Duty, taxes or other charges, as applicable; and (3) The Transferor Company be transferred without further act or deed to the Transferee Company and accordingly, the same shall, pursuant to section 232 of the Companies Act, 2013, be transferred to and vest in the Transferee Company for all the state and interest of the Transferor therein but subject, nevertheless, to all the charges now affecting the same; and (4) All the liabilities including taxes, levies and charges, if any, and duties of the Transferor Company be transferred without further act or deed to the Transferee 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 Transferee Company; and (5) The tax implications, if any, specially under the Income tax Act, 1961, arising out of the Scheme are subject to final decision of Concerned Tax Authorities and the decision of the Concerned Tax Authorities shall be binding on the Transferee Company; and (6) All the proceedings now pe ..... 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