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TMI Blog2022 (1) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The Petitioner Companies filed First Motion Application bearing CA (CAA) No.5/Chd/Hy/2020 before this Tribunal for seeking directions for dispensing with the meetings of equity shareholders and secured creditors of the applicant companies. 3. The First motion application was disposed of vide order dated 22.12.2020, with directions to dispense with the meetings of equity shareholders, secured creditors and unsecured creditors of both the applicant companies. The meetings of equity shareholders and secured creditors were dispensed with as the consent affidavits have been obtained and placed on record. The meetings of unsecured creditors of both the applicant companies were dispensed with, subject to compliance of directions to issue notices to unsecured creditors, and to statutory authorities. The Petitioner Companies have filed a compliance affidavit vide Diary No.00458/4 dated 27.01.2021, wherein notices were issued to unsecured creditors and to statutory authorities along with newspaper publications. 4. The main objects, date of incorporation, authorized and paid-up share capital, and the rationale of the scheme had been discussed in details in the order dated 22.12.2020. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved that Clause 9 of the proposed scheme protects the interest of the employees of the Transferor Company. Further, in Para 9 of the said report, it is stated that as per the RoC, the Transferor Company and Transferee Company have filed annual returns and balance sheets up to 31.03.2020. It is also stated that no prosecution has been filed, and inspection or investigation has been conducted in respect of the petitioner companies. The R.D. in Para 10 has also made the following observation:- "10. That as per Para 32 of the report of RoC, Delhi dated 07.09.2021, the following observations have been made: a. Refer to clause 13 of the Scheme, the Transferee Company shall comply with Section 232(3)(i) of the Companies Act, 2013 and pay the difference fee on consolidated authorized share capital of Transferee Company after setting off the fee already paid by the Transferor Companies on their respective capital." 7.2 In reply to the same, the Petitioner Companies have filed an affidavit vide Diary No.02126/7 dated 01.10.2021 and has stated that in respect of the said observation of the R.D. and RoC, the petitioner companies undertake that they shall comply with the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding against the Petitioner Company No.2. 9.2 In reply to the same, the petitioner companies filed a joint affidavit vide Diary No.02126/10 dated 08.10.2021 and submitted that as per Clause 9 of the Scheme of Amalgamation, all pending litigations of the Transferor Company shall stand transferred/mutated to the Transferee Company and any liability arising pursuant to such litigations shall be payable by the Transferee Company. Further, Clause 4.2 of the Scheme Amalgamation provides that all the liabilities including contingent liabilities, duties, obligations, undertakings of Transferor Company shall stand transferred to an vested in or deemed to have been transferred to and vested in Transferee Company with effect from the Appointed Date of 5 July, 2019 or any such other date as may be approved by the Tribunal upon the Scheme of Amalgamation becoming effective. 9.3 It is further submitted in the aforesaid reply that the Transferee Company undertakes that any outstanding demand of the Transferor Company that are either in dispute or have not crystalized as the matters have not obtained finality and the demand with respect to the Transferor Company shall be enforced against the Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... algamation: "... taking into consideration the clauses contained in the scheme in relation to liability to tax and also as insisted upon by the income-tax and in terms of the decision in Vodafone Essar Gujarat Ltd. v. DIT MANU/GJ/0794/2012 : [2013] 176 Comp Cas 7 (Guj); [2013] 353 ITR 222 (Guj) and the same being also affirmed by the Hon'ble Supreme Court and as reported in Department of Income-tax v. Vodafone Essar Gujarat Ltd. [2015] 190 Comp Cas 105 (S.C.); [2015] 373 ITR 525 (S.C.); [2016] 66 taxmann.com. 374 (S.C.) from which it is seen that at the time of declining the S.L.P.s filed by the Revenue, however stating to the following effect vide its order dated April 15, 2015, that the Department is entitled to take out appropriate proceedings for recovery of any statutory dues from the transferor or transferee or any other person who is liable for payment of such tax dues the said protection be afforded is granted. With the above observations, the petition stands allowed, and the scheme of amalgamation is sanctioned." 10. Competition Commission of India (CCI) 10.1 The Competition Commission of India filed its report vide Diary No.590 dated 16.09.2019 and Diary No.194 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th any other requirement which may be specifically required under any law. 16. THIS TRIBUNAL DO FURTHER ORDER: (i) That all the property, rights and powers 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 vested in the Transferee Company for all the estate and interest of the Transferor Company but subject nevertheless to all charges now affecting the same; (ii) That all the liabilities 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; (iii) That the Appointed Date for the scheme shall be 05.07.2019 as specified in para 1.2 of the Scheme; (iv) That the proceedings, if any, now pending by or against the Transferor Company be continued by or against the Transferee Company; (v) That the employees of the Transferor Company shall be transferred to the Transferee Company in terms of the ..... 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