9911796707
TMI Blog2022 (4) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition has now come up for final hearing. Learned Authorised Representative for the Petitioners submits as follows:- a) The Scheme was approved unanimously by the respective Board of Directors of the Transferor Company and the Transferee Company at their meetings held on 04th day of January, 2021, respectively. b) The circumstances which justify and/or have necessitated the Scheme of Amalgamation and the benefits of the same, are inter-alia as follows:- (i) The Transferor Company and the Transferee Company belong to common group and common management. There are common Shareholders and Directors in the Transferor Company and the Transferee Company. (ii) The Transferor Company and the Transferee Company have agreed to integrate their businesses. In order to integrate the fields of activities of the Petitioners and for improving overall business efficiency and in the overall interest of future growth and diversification of the business of the Petitioners, the present Scheme is proposed to amalgamate the Transferor Company with the Transferee Company. The Scheme will be complimentary to the Petitioners for their mutual benefit and interest. (iii) The proposed Scheme will re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instant Petition for sanction of the Scheme. By an Order dated 15th day of July, 2021 in C.P. (CAA) No. 107/KB/2021 Connected with C.A. (CAA) No. 21/KB/2021, the instant Petition was admitted by this Tribunal and fixed for hearing on 13th day of September, 2021 upon issuance of notices to the Statutory Authorities and advertisement of date of hearing. In compliance with the said Order dated 15th day of July, 2021, the Petitioners have duly served Notices on the following Statutory Authorities dated 30th day of July, 2021: (i) The Central Government, through the Regional Director, Eastern Region, Ministry of Corporate Affairs; (ii) The Registrar of Companies, Kolkata; (iii) The concerned Assessing Officer along with the Chief Commissioner of Income Tax with PAN of the Petitioners; (iv) The Official Liquidator, having jurisdiction over the Transferor Company and the Transferee Company. (v) Further, the Petitioners have also published advertisements once in English newspaper "Financial Express" and another in Bengali newspaper "Aajkal" dated 26th day of July, 2021. An Affidavit of Compliance in this regard has also been filed by them on 07th day of August, 2021. g) All st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after Amalgamation the Transferor Company stand dissolved and the fees, if any, paid by the Transferor Company on its Authorized Share Capital shall be set off against any fees payable by the Transferee Company on its Authorized Share Capital subsequent to Amalgamation which is in line with Section 232(3)(i) of the Act. Hence, in substance, Clause 2.7 of Part - III of the Scheme is in compliance with Section 232(3)(i) of the Companies Act, 2013. However, the Petitioners undertake to the effect that the Registrar of Companies (ROC) fees payable, if any, will be paid by the Transferee Company on sanctioning of the Scheme is annexed in the Rejoinder and marked as "Annexure - A". (b) Paragraph 2 (c) of the RD Affidavit: That the Transferee Company should be directed to pay applicable stamp duty on the transfer of the immovable properties from the Transferor Companies to it. Paragraph 4 of the Rejoinder: That in reply to the statement made in paragraph No. 2 (c) it is to state that there are no immovable properties in the Transferor Company as on 31st March, 2020. Therefore, the Transferee Company is not liable to pay stamp duty on the transfer of immovable properties of the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... airs; the Registrar of Companies, Kolkata; the concerned Income Tax Assessing Officer along with the Chief Commissioner of Income Tax with Permanent Account Number (PAN) of the Petitioners; the Official Liquidator attached to the Hon'ble High Court Calcutta having jurisdiction over the Transferor Company and the Transferee Company and other sectoral regulators applicable over the Transferee Company and the Transferor Company which are likely to be affected by the proposed Scheme of Amalgamation. A certified true copy of acknowledgement receipt of notice served to the statutory authorities is annexed in the Rejoinder and marked as "Annexure - E". (f) Paragraph 2 (g) of the RD Affidavit: The Hon'ble Tribunal may kindly seek the undertaking that this Scheme is approved by the requisite majority of members and creditors as per Section 230(6) of the Companies Act, 2013 in meeting duly held in terms of Section 230(1) read with sub-sections (3) to (5) of Section 230 of the said Act and the minutes thereof are duly placed on record. Paragraph 8 of the Rejoinder: That in reply to the statement made in paragraph No. 2 (g) it is to state that the Hon'ble Tribunal by an Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ip (LLP), Companies, Local Authority and any Artificial Juridical Person. (b) As per Section 2(30) of the General Clauses Act, 1897, person shall include any company or association or body of individuals, whether incorporated or not. In lights of the above, it can be inferred that Vaishnavi & Co. being an Association of Person is competent to hold shares in its own name and be a registered member of a company. A copy of latest ITR of Vaishnavi & Co. (AOP) is annexed in Rejoinder and marked as "Annexure - G". 6. The Regional Director ("RD") has filed his reply affidavit dated 09th day of September, 2021 ("RD affidavit") which has been dealt with by the Petitioner(s) by their Rejoinder affidavit dated 14th day of September, 2021 ("Rejoinder"). Further clarification on paragraph 2 (h) has been dealt with by the Petitioner(s) by their Rejoinder affidavit dated 30th day of December, 2021 ("Rejoinder").The observations of the RD and reply of the Petitioner(s) are summarized as under:- Paragraph 2(h) of the RD Affidavit: As on 31.03.2020, out of total 10,000 nos. equity shares of the Transferor Company, Shadhu Vanijya Private Limited, 5000 shares were held by "Vaishnavi & Co." If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from the Appointed Date, all the properties, rights and powers of the Transferor Company, including those described in the Schedule of Assets herein, be transferred from the said Appointed Date, without further act or deed to the Transferee Company and accordingly, the same shall pursuant to Section 232(4) of the Companies Act, 2013, be transferred to and vest in the Transferee Company for all the estate and interest of the Transferor Company therein but subject nevertheless to all charges now affecting the same, as provided in the Scheme; (iii) That with effect from the Appointed Date i.e. 1st day of April, 2020, all debts, liabilities, duties and obligations of the Transferor Company be transferred from the said Appointed Date, without further act or deed to the Transferee Company and accordingly, the same shall pursuant to Section 232(4) of the Companies Act, 2013, be transferred to and become the debts, liabilities, duties and obligations of the Transferee Company; (iv) That all proceedings and/or suits and/or appeals now pending by or against the Transferor Company be continued by or against the Transferee Company, as provided in the Scheme; (v) That the employees of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
