TMI Blog2021 (3) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... he sanction of the Scheme, the Transferor Company shall be transferred to and vested in the Transferee Company and the Demerged Undertaking 1 of the Demerged Company 1 and Demerged Undertaking 2 of Demerged Company 2 stand demerged and transferred to, and vested in, the Resulting Company. Application disposed off. - CP (CAA) No. 35/Chd/Hry/2019 - - - Dated:- 20-10-2020 - Ajay Kumar Vatsavayi, Member (J) And Raghu Nayyar, Member (T) For the Appellant : Abhishek Nahta, Authorized Representative JUDGMENT Ajay Kumar Vatsavayi , Member ( J ) This is a joint Second Motion Petition filed under Sections 230-232 read with Section 66 of the Companies Act, 2013 (for short the 'Act') filed by the Petitioner Companies in terms of Rule 15 of Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 (for brevity 'Rules') for the sanction of Scheme of Arrangement between Impulse Holdings Private Limited (Petitioner Company -1/Transferor Company or 'IOPL'), Impulse (India) Private Limited (Petitioner Company -2/Transferee Company/Demerged Company 1 or 'IIPL'), Impulse Overseas Private Limited (Petitioner Company -3/Demerged Company 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice has been given on or before the date of hearing fixed herein may be filed, failing which it will be considered that there is no objection to the approval of the Scheme on the part of the authorities by this Tribunal and subject to other conditions being satisfied as may be applicable under the Companies Act, 2013 and relevant rules framed thereunder. In addition to the above public notice, each of the Petitioner shall serve the notice of the petition on the following Authorities namely, (a) Central Government through Regional Director (Northern Region), Ministry of Corporate Affairs, (b) Registrar of Companies, NCT of Delhi Haryana, (c) the Official Liquidator, Punjab and Haryana at Chandigarh, (d) Income Tax Department through the Nodal Officer- Principal Chief Commissioner of Income Tax, Aaykar Bhawan, Sector 17-E, Chandigarh and by mentioning the PAN of the Companies, along with copy of this Petition by speed post and to such other Sectoral Regulator(s) who may govern the working of the respective companies involved in the 'Scheme. The petitioner-companies shall at least 7 days before the date of hearing of the petition file an affidavit of service regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 31.03.2019. It is further submitted that as per the report of Registrar of Companies (RoC), no inspection or investigation has been conducted and also no prosecution has been filed in the case of Petitioner Companies. It is also stated that as per Para 31 of RoC report, the Statement of Individual assets and liabilities of the Demerged Undertakings have not been found enclosed to the proposed Scheme of Arrangement and the Petitioner Companies have served the copy of Application to Submit Additional Documents dated 26.07.2019 filed vide Diary No. 3769 dated 30.07.2019 wherein the Split Balance Sheet of Demerged Company 1 2 is enclosed as Annexure B C and copy of said application is marked as Annexure C of Diary No. 1168. 12. Mr. O.P. Sharma, Official Liquidator (OL), has also filed its report vide Diary No. 1151 dated 12.02.2020. It is submitted that the petitioner companies do not have any pending litigation that would impact their financial position and these companies also did not have any long term contracts including derivative contracts for which there were any material foreseeable losses. It is also submitted that there were no amounts which were required to be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide Diary No. 01194/2 dated 25.08.2020. In response to the report with respect to Petitioner Company-1, it is submitted that the liability relating to any tax demand (if any) raised by the Income Tax Department shall be dealt with in accordance with Clause 4.2.13 to Clause 4.2.15 of the Scheme and be paid accordingly subject to their right of appeal as per the provisions of the Income Tax Act, 1961. 18. In response to the Income tax report with respect to Petitioner Company-2, it is submitted that the demand pending against the Petitioner Company -2 of ₹ 6190/- has already been paid and the proof of such payment is attached at Page 11 of Diary No. 01194/2. It is also submitted that any future liability relating to any tax demand that is raised by the Income Tax Department shall be paid by Petitioner Company-2 as the same shall not cease to exist even after the proposed Scheme is made effective. It is also undertaken that the payment of income tax shall not be hampered in any way as a result of merger between Petitioner Company-1 Petitioner Company-2 and subsequent demerger of Petitioner No. 2 into Petitioner Company-4/Resulting Company and same shall be dealt in accordan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me shall not cease to exist even after the proposed Scheme is made effective. It is also undertaken that the payment of income tax shall not be hampered in any way as a result of demerger from Petitioner No. 2 and Petitioner No. 3 into Petitioner Company-4/Resulting Company and same shall be dealt in accordance with Clause No. 10.2.16 to 10.2.19 of the Scheme subject to their right of appeal as per the provisions of Income Tax Act, 1961. It is also stated that upon the demerger from Petitioner Company-2 and Petitioner Company-3 into Petitioner Company-4/Resulting Company, bought forward losses and unabsorbed depreciation of Petitioner Company-3 will be carried forward to Petitioner Company-4/Resulting Company only in accordance with the applicable provisions of Income Tax Act, 1961. 21. It is also submitted that in the above affidavits that there are no objectors to the proposed Scheme as contemplated under Section 230(4) of the Companies Act, 2013 and the Petitioner Companies have not received any objections till date from any of the regulators/government agencies or any member of the general public or any of the stakeholders in response to the publication of the notice/adverti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Demerged Undertaking 1 of Demerged Company 1 and Demerged Undertaking 2 of Demerged Company 2 by virtue of Clause 10 which is as under:- 10.2.13. All the employees of the Demerged Company 1 (in relation to Demerged Undertaking 1) and Demerged Company 2 (in relation to Demerged Undertaking 2), if any, in service on the Effective Date shall be deemed to have become employees of the Resulting Company with effect from the Appointed Date without any break, discontinuance or interruption in their service on the basis of continuity of service without any further act, instrument, deed, matter or thing being made, done or executed. The terms and conditions of their employment with the Resulting Company shall not be less favorable than those applicable to them with reference to the Demerged Company 1 and Demerged Company 2 on the Effective Date. etc. 26. On the last date of hearing, the following order was passed :- Heard Mr. Abhishek Nahta, the authorized representative appearing for the petitioner-companies. The compliance affidavit filed vide diary No. 01194/2, dated 25.08.2020 is taken on record. The petitioner-companies shall file the Audited/Provisional Financial Statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abilities and duties of the Transferor Company be transferred, without further act or deed, to the Transferee Company and accordingly the same shall pursuant to Sections 230 to 232 of the Companies Act, 2013, be transferred to and become the liabilities and duties of the Transferee Company; and iii) That all proceedings now pending by or against the Transferor Company be continued by or against the Transferee Company; and iv) That all the employees of the Transferor Company shall be transferred to the Transferee Company in terms of the 'Scheme'; and v) That the Transferee Company shall, without further application, allot to the existing members of the Transferor Company shares of Transferee Company to which they are entitled under the said Scheme of : and vi) That the fee, if any, paid by the Transferor Company on its authorized capital shall be set off against any fees payable by the Transferee Company on its authorized capital subsequent to the sanction of the 'Scheme'; and vii) That the Transferor Company shall deposit an amount of ₹ 75,000/- with the Pay Accounts Office in respect of the Regional Director, Northern Region, Ministry of Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Petitioner Companies, within 30 days after the date of receipt of this order, shall cause a certified copy of this order to be delivered to the Registrar of Companies for registration and on such certified copy being so delivered, the Transferor Company shall be dissolved without undergoing the process of winding up. The concerned Registrar of Companies shall place all documents relating to Transferor Company registered with him on the file relating to the said Transferee Company and the files relating to the Transferor and Transferee Company shall be consolidated accordingly, as the case may be; ii) That any person interested shall be at liberty to apply to the Tribunal in the above matter for any directions that may be necessary. 29. As per the above directions and Form No. CAA-7 of Companies (Compromises, Arrangements and Amalgamations) Rules, 2016, formal orders be issued on the petitioners for filing of the schedule of properties i.e. (i) freehold property of Transferor Company and Demerged Undertaking 1 of the Demerged Company 1 Demerged Undertaking 2 of Demerged Company 2 (ii) leasehold property of Transferor Company and Demerged Undertaking 1 of the Demerged Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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