TMI Blog2022 (1) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... SINGH THAKUR, MEMBER (JUDICIAL) And HON BLE MR. SUBRATA KUMAR DASH, MEMBER (TECHNICAL) For the Petitioner Companies : Mr. Rohit Khanna, Advocate For Income Tax Department : Mr. Yogesh Putney, Senior Standing Counsel JUDGMENT Per: Subrata Kumar Dash, Member (Technical) This is a joint Second Motion petition filed under Sections 230-232 of the Companies Act, 2013 (for short the 'Act') by the petitioner companies namely; Comstar Automotive Technologies Private Limited (hereinafter referred to Transferor Company ) and Sona BLW Precision Forgings Limited (hereinafter referred to as Transferee Company ) in terms of Rule 16 of Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 (for brevity 'Rules') for the sanction of Scheme of Amalgamation (for brevity 'Scheme') between the petitioner companies. 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, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itors and unsecured creditors. It is further deposed that the Petitioner Company No.2 got listed with the National Stock Exchange of India (NSE) and Bombay Stock Exchange of India (BSE) on June 24, 2021, however, the Petitioner Company No.1 is wholly owned subsidiary of Petitioner Company No.2 and therefore, there was no requirement to obtain prior approval from Stock Exchanges and Securities and Exchange Board of India in view of the circulars issued by the SEBI. The copy of affidavit is attached at Diary No.02126/3 dated 09.09.2021. 7. In response to the abovementioned notices, the statutory authorities have furnished their replies. 7.1 Registrar of Companies(RoC)/Regional Director The Registrar of Companies (RoC) has filed its report along with the report of the Regional Director (RD) by diary No.02126/4 dated 22.09.2021. The R.D. in Para 6 of the report has observed 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded 31.03.2019. iv. The disclosure requirements relating to holdings as well as dealings in specified bank notes were applicable for the period from 8 November 2016, which are not relevant to these standalone financial statements. Hence, reporting under this clause is not applicable. Thus, the Official Liquidator has made no adverse observation against the petitioner companies. 9. Income Tax Department 9.1 The Income Tax Department filed its report vide Diary No.02126/6 dated 17.09.2021 and has stated that demands amounting to ₹30,02,300/- for Assessment Year 2007-08, ₹3,28,67,960/- for Assessment Year 2016- 17 and ₹9,31,48,540/- for Assessment Year 2017-18 were outstanding against the Petitioner Company No.1. Similarly, demands amounting to ₹20,01,970/- for Assessment Year 2016-17, ₹5,54,55,976/- for Assessment Year 2017-18 and ₹16,49,392/- for Assessment Year 2018- 19 were outstanding 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonance with law, no fault can be found with the transferee's undertaking to satisfy all demands raised by the tax authorities as finally determined by due process. The appellants are justified in maintaining that the tax liabilities would be satisfied by the transferee as determined by the competent forum seized of the matter in accordance with the approved scheme, which admittedly does not come in conflict with any express provision of the Companies Act, 2013. The legitimate interests of the concerned tax authorities have been lawfully protected, and their right to recover the tax dues as determined by the Income-tax Appellate Tribunal or any other competent forum as the case may remain intact. 9.5 Further in Company petition C.A.A. No. 284/ND/2018 vide order dated November 12, 2018, the National Company Law Tribunal, New Delhi has made the following observations with regard to the right of the Income-tax Department in the scheme of amalgamation: ... 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/0794/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the relevant Sections of the Companies Act, 2013. In the absence of any objections before us and since all the requisite statutory compliance have been fulfilled, this Tribunal sanctions the scheme of amalgamation appended as Annexure-A1 with the company petition. 14. Notwithstanding the submission that no investigation is pending against the petitioner companies, if there is any deficiency found or, violation committed qua any enactment, statutory rule or regulation, the sanction granted by this Tribunal will not come in the way of action being taken, albeit, in accordance with law, against the concerned persons, directors and officials of the petitioners. 15. While approving the scheme as above, it is clarified that this order should not be construed as an order in any way granting exemption from payment of stamp duty, taxes or any other charges, if any, payment is due or required in accordance with law or in respect to any permission/compliance with 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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