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TMI Blog2020 (12) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... or Company and Transferee Company, etc. 2. Brief facts of the case, as mentioned in the Company Petitions, are as follows: (1)M/s. Bloom Energy International (India) Private Limited (hereinafter referred to as 'Petitioner/Transferor Company') was incorporated on 13.01.2012 in the State of Karnataka with the CIN: U29300KA2012FTC 062056, having its registered office at North Block, III Floor, IT/BT Park, Rajajinagar Industrial Estate, Bangalore-560044. Its Authorised Capital as on 31.03.2019 is Rs. 50,00,000/- divided into 5,00,000 Equity Shares of Rs. 10/- each and its Issued, Subscribed and Paid-up Capital is Rs. 1,00,000/- divided into 10,000 Equity Shares of Rs. 10/- each 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 and elsewhere of marketing, supplying, distributing, manufacturing, assembling, installing, reconditioning, repairing, purchasing, hiring, licensing, or otherwise dealing in equipment, instruments and systems etc. (2) The Board of Directors of the Transferor Company at its meeting held on 04.07.2019 have approved an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions, if any, of the Companies Act, 2013 (the Act) and read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016; the Appointed Date of Merger shall be effective from 1st April 2019; the draft Scheme of Amalgamation submitted to this meeting and initialled by the Chairman for the purpose of identification be and is hereby approved." (5) It is stated that Clause 13 of Part B of the Objects incidental or ancillary to the attainment of the main objects of the Memorandum of Association of Transferor Company and Transferee Company provides for amalgamation with any other Company. (6) It is submitted that under the proposed Scheme of Amalgamation, the entire assets and liabilities of the Transferor Company will be taken over by the Transferee Company w.e.f. 1st April, 2019, the Appointed Date, as a going concern. The Transferee Company submits that it has surplus assets and it is in a position to meet the liabilities of the Transferor Company & Transferee Company. Hence the proposed amalgamation will not in any manner affect the interest of the Shareholders and Trade Creditors of the Transferee Company. (7) The management of the Transferor Company is of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Companies. The Tribunal vide its Order dated 20.11.2019 has dispensed the meetings of the Equity Shareholders and that of Unsecured Creditors of the Transferor Company and Transferee Company. 4. The Tribunal vide its Order dated 04.02.2020 directed the Petitioners to issue Notice prepared by the Registry to the Regional Director (SER), Hyderabad, Registrar of Companies Karnataka, Official Liquidator, Reserve Bank of India, Regional Office-Bengaluru, the jurisdictional Income Tax Office - Bengaluru, the Principal Chief Commissioner of Income Tax and Nodal Officer and to the CCI and also permitted to cause paper publication in 'Deccan Chronicle', in English language and 'Hosa Digantha', in Kannada language and to file proof of the same. Further, vide another Order dated 04.03.2020 this Tribunal permitted the Petitioners to publish notification in another English newspaper, as 'Deccan Chronicle' has stopped publishing. Pursuant thereto, the Petitioners vide Affidavit dated 18.02.2020 affirmed compliance of the Order passed by the Tribunal dated 04.02.2020 and vide Memo dated 03.06.2020 have furnished copies of paper publication for having taken advertisement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er latter No.N-20(11)/NF-477/2020/CD/2125 dated 28.02.2020 has informed that under the provisions of the Competition Act, 2002, a notice for combination is to be mandatorily given to CCI subject to meeting of thresholds, in terms of combined assets or combined turnover. Further, there are certain exemptions available for which notice may not normally be given to the Commission and as of said date the said Scheme has not been filed with the Commission under the provisions of the Act and thus it seeks an undertaking from the Companies involved that CCI approval is not required for the said Scheme. 8. The Reserve Bank of India vide its letter No.FE.BG.FID.No.2032/21.08.606/ 2019-20 dated 03.03.2020 stated that it is the duty of the Companies undergoing compromise/arrangement/amalgamation to comply with the requirements of various laws including the rules, regulations and guidelines prescribed by RBI viz., the Companies may have to comply with Foreign Exchange Management Act, 1999, and the rules and regulations made thereunder and 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 2013, and pay the difference fee, after setting of the fee already paid by the Transferor Company on its respective capital, after approval of the Scheme by this Tribunal. (3) The Petitioner confirm that the Transferee Company had received a demand from Assistant Commissioner of Income Tax (Assessing Officer) Chennai for the AY 2013-14 towards disallowance relating to expenditure on research and development and Transfer Pricing matter. Aggrieved by the order, the Transferee Company had filed an application to Dispute Resolution Panel (DRP). The DRP has passed an order in favour of the Asst. Commissioner of Income Tax. Aggrieved by the order passed by the DRP, the Company had filed an appeal with the Income Tax Appellate Tribunal (ITAT), Chennai and has paid Rs. 50,00,000/- under protest. Subsequently the Company has received a favourable order at ITAT level and the matter has been referred back to the Assessing Officer to issue the final order. During the FY 2018-19, the Transferee Company has received favourable order for AYs 2012-13 & 2014-15 on similar matters and expects to receive favourable order for AY 2013-14 also. It further undertakes that the Transferee Company will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d extant Provisions of the Companies Act, 2013 and various Rules made thereunder. 14. We have considered the facts of the case as mentioned in the Petition, the report of the Regional Director, MCA, Hyderabad and the ROC Karnataka, in which the para wise replies of the Petitioner Companies have been duly examined along with the comments offered by the Official Liquidator and the relevant provisions contained in the Companies Act, 2013 and other related Acts and Rules. In his report, the Regional Director, MCA has submitted that the Scheme appears to be fair, reasonable and is not detrimental against the Members or Creditors or contrary to public policy and the same can be approved. Replies have also been furnished in respect of the observations of the Income tax Department and the Competition Commission of India. As per the Petition, the Scheme in question will help in bringing valuable synergies in the operations, in scaling up the business of the undertaking of the Transferor Company resulting in expanding the reach and business base and would enable the Companies concerned to rationalize and streamline their management and finances and will pave better and more productive, econ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all stand transferred to and be the liability of the Transferee Company; and (8) Petitioner Companies shall ensure all requisite compliances under the FEMA/RBI Regulations, Guidelines, as may be applicable. (9) Petitioner Companies shall file all the due Statutory Returns immediately, if any; (10)The Petitioner Companies shall within thirty days of the date of the receipt of 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 (11)The Petitioner Companies will ensure full compliance of their Affidavits and all provisions of the Companies Act, 2013, as may be applicable, and will submit Quarterly/Annual Status of compliances through an Affidavit by Managing Director/Director of the Company along with CA/ICWA/CS Certificate till the compliance is ensured; (12) Transferor Company or its Authorized Signatories are directed that after the completion of the process of Amalgamation, to handover the possession of the Books of Accounts and other relevant documents of the Transferor Company to the Transferee Company for the purpos ..... 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