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TMI Blog2021 (12) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... ating thereto on going concerns are proposed to be transferred to and vested in the "Transferee Company" with effect from the Appointed Date as mentioned in the Scheme. 1. The Rationale of the proposed company Scheme is stated by the Petitioners as under: i. The Transferee Company is presently engaged in Civil Engineering / Construction activities inter-alia it has also made development of surplus funds in other investable instruments. Apart from pursuing the main object, all the Transferor Companies have made deployment of surplus funds in other investable instruments for the time being. The business of the Transformer Companies and the Transferee Company can be combined / adjusted and carried forwarded conveniently with combined strength; ii. The amalgamation will enable the Transferee Company to consolidate its line of business by restructuring and re-organizing its business activities and Capital Structure; iii. The amalgamation will enable the amalgamated company to broad base their business activities under the roof of the Transferee Company; iv. The amalgamation will result in economy of scale including reduction in overhead expenses relating to management and admin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ured and Unsecured Creditors of the Applicant Companies as prayed for. This Tribunal also directed the petitioners for issuance of notices to :- a. Central Government through Regional Director, North Eastern Region, Ministry of Corporate Affairs, Guwahati b. Central Government through Regional Director, Eastern Region, Ministry of Corporate Affairs, Kolkata c. The Registrar of Companies, NER, Guwahati d. The Registrar of Companies, Kolkata e. The Official Liquidator, NER, Guwahati f. The Official Liquidator, Kolkata g. The Income Tax Authorities, having jurisdictions over the affairs of the Companies. 4. The petitioners have submitted that pursuant to the order passed by the Hon'ble Guwahati Bench of the Tribunal dated 19th January, 2021 in Company Application No. C.A (CAA)/01/GB/2020 ,the Petitioner Companies have served a copy of the application together with a copy of the said order upon the Central Government through Regional Director, NER, Ministry of Corporate Affairs, Guwahati; Central Government through Regional Director, Eastern Region, Ministry of Corporate Affairs, Kolkata; The Registrar of Companies, NER, Guwahati; The Registrar of Companies, Kolkata; The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kolkata registered with Registrar of Companies, West Bengal. The Hon'ble NCLT, New Delhi, Principal Bench vide its order passed on 03/09/2019 under Rule 16 (d) of NCLT Rules, 2016 in CA/1689(PB)/2019 allowed the filing of the Joint Petitions at Guwahati Bench where the Transferee Company is located. Accordingly, this representation of the Central Government on the proposed scheme of amalgamation of above named petitioner companies is being filed before the NCLT, Guwahati Bench. Para 2 (b): That on examination of the report of the Registrar of Companies, Guwahati dated 26.10.2021, it appears that all the transferor companies are registered under the jurisdiction of ROC, Kolkata. Further, no complaint and/or representation regarding the proposed scheme of Amalgamation has been received against the Transferee Company. The transferee company has filed Financial Statements up to the financial year ended on 31.03.2020. Para 2 (c): That as per records as available in MCA BO Portal, it appears that all the Transferor Companies have also filed Financial Statements up to the financial year ended 31.03.2020. Para 2 (d): That the Appointed Date stated in the proposed Scheme is 1st April, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r arrangement. Further, the approval of the scheme by the Hon'ble Tribunal may not deter such authorities to deal with any of the issues arising after giving effect to the scheme. The decision of such authorities shall be binding on the Petitioner Company (s) concerned. 8. The Official Liquidator, NER, Guwahati have made the following observations in his representation: Para 2: That, all the Transferor Companies are registered under the jurisdiction of ROC, Kolkata. Only the Transferee Company SLT Infracon Private Limited is registered with ROC, Guwahati. Therefore, report of Official Liquidator, Gauhati High Court has been prepared based on the available records of his office and the documents submitted by the Transferee Company. Para 3: That on receipt of the said petition, the Transferee Company was intimated vide this Office letter no. OL/GUW/MERGER/796 dated 01.02.2021 to furnish certain information/ records for the purpose of preparing the required report. But, the Transferee Company has furnished the information and records only on 30.09.2021. Para 4: That, as per clause 1 of Part III of the scheme, upon coming into effect of the scheme and with effect from the appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed date of the Scheme was suggested for the 1st Day of April, 2018. Para 9: That the Transferee Company M/s SLT INFRACON PRIVATE LIMITED was incorporated under the provisions of the Companies Act, 1956 on 22.03.2010. The company is having its Registered Office at Vill- Uttar Badarpur, P.O- Badarpurghat, P.S.- Algapur Hailakandi Assam-788803 which falls within the jurisdiction of this Office of Regional Director. The main objects of the Company include the following- To carry on the business of general and infrastructural development contractors and construction contracts. To enter into an agreement to take over the partnership firm named M/s Shyam Lal Tusnial existing and other such business Para 10: That as per Clause 11 of Part IV of the scheme, upon the scheme becoming effective and with effect from the Appointed Date, the authorized Share capital of the Transferor Companies shall stand transferred to and be amalgamated with the authorized share capital of the Transferee Company. Accordingly, the authorized share capital of the Transferee Company shall stand enhanced to Rs. 15,63,00,000 divided into 1,56,30,000 equity shares of Rs. 10 each. Para 11: That the Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id-up held by such Equity Shareholders in TRANSFEROR COMPANY NO. 1." "53 (Fifty Three) Equity Shares of Rs. 10/- each credited as fully paid-up in the TRANSFEREE COMPANY for every 2 (Two) Equity Shares of Rs. 10/- each fully paid-up held by such Equity Shareholders in TRANSFEROR COMPANY NO. 2." "66 (Sixty-Six) Equity Shares of Rs. 10/- each credited as fully paid-up in the TRANSFEREE COMPANY for every 1 (One) Equity Share of Rs. 10/- each fully paid-up held by such Equity Shareholder in TRANSFEROR COMPANY NO. 3." "304 (Three Hundred and Four) Equity Shares of Rs. 10/- each credited as fully paid-up in the TRANSFEREE COMPANY for every 1 (One) Equity Share of Rs. 10/- each fully paid-up held by such Equity Shareholder in TRANSFEROR COMPANY NO. 4." Para 5: That the appointed date of the Scheme is the 1st Day of April, 2018. Para 6: That as per Paragraph 11 of Part IV of the Scheme, the Authorized Share Capital of the Transferor Companies shall be combined/merged with the Authorized Share Capital of the Transferee Company. Para 7: That the Hon'ble NCLT, Guwahati bench vide its order dated 19th January, 2021 passed in Company Application No. CA (CAA) No. 01/GB/2020 was pleas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nies are under the Jurisdiction of Registrar of Companies, Kolkata. Further the Regional Director has also reported in his affidavit that no complaint and/or representation regarding the proposed scheme of Amalgamation has been received against the Transferee Company. Para 2 (c): That the Regional Director has in his affidavit reported that the Transferor Companies have filed financial statements up to 31st March, 2020 stating up-to-date filing. Hence, no comments are offered. Para 2 (d): That the Petitioner Companies hereby agree that the Appointed Date be shifted from 01st April, 2018 to 01st April, 2021. The Board of Directors of the Petitioner Companies have passed resolutions agreeing to shift the Appointed Date from 1st April, 2018 to 1st April, 2021 so as to be in line with the Circular issued by the Ministry of Corporate Affairs. Para 2 (e): That the Deponent duly authorized hereby affirms that the Transferee Company undertakes that it shall comply with the provisions of Sec 232 (3) (i) of the Companies Act, 2013 in regard to adjustment of fees upon clubbing of Authorized Share Capital(s) of the transferor Companies with the Authorized Share Capital of the Transferee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... change is made. Para 2 (j): That the Petitioner Companies have complied with the directions contained in the order passed by the NCLT, Guwahati Bench and have effected service upon all Regulatory Authorities as directed in the order passed by the said Tribunal in their order at the dispensation stage and also at the time of second motion stage The Petitioners have filed affidavits of compliance. The Petitioner Companies agree that decision of any authorities post sanctioning shall be binding on Transferee Company. Copy of the Board resolutions passed by the Board of Directors of the Transferor Companies for shifting of Appointed Date have been annexed being ANNEUXRE B of the said affidavit. 11. Thus, We perused the above and examined the merits of the representations/observation(s) made by the Regional Director, Eastern Region, Kolkata with additional charge of Regional Director, NER, Guwahati; Official Liquidator, NER, Guwahati and Official Liquidator, Eastern Region, Kolkata which have been dealt with by the Petitioner Companies by filling its clarifications/reply affidavit. 12. In the light of the above stated Replies, Affidavits and Assurances given, We feel that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d iii. All liabilities including taxes and charges, if any and duties of the Transferor Companies 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 without in any way obstructing compliance of depositing outstanding tax dues if any; and iv. All proceedings now pending by or against the Transferor Companies, if any, be continued by or against the Transferee Company: and v. All employees of the Transferor Companies will become employees of the Transferee Company without any break or interruption of service; vi. The Appointed date is 01/04/2021 16. The legal fees and expenses of the office of the Official Liquidators are quantified at Rs. 10,000/- (Rupees Ten Thousand only) each for the Liquidator of Guwahati and Kolkata in respect of the Petitioner Transferor Companies. The said fees to the Official Liquidators shall be paid by the Transferee Company within four weeks from the date of issuance of certified copy of the Order by the Tribunal. 17. The legal fees and expenses of the office of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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