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TMI Blog2023 (2) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... on record the decision dated 4th December, 2019 of the Hon'ble NCLAT in a connected matter viz. Registrar of Companies Vs. Apoorva Leasing Finance And Investment Company Ltd. dismissing the appeal filed by the RoC. The facts of this case are identical to the aforesaid case which was dismissed by this Bench vide order dated 18.01.2019 and is now upheld by the Hon'ble NCLAT. Since the facts of the present case are identical, there is no reason for this Bench to come to any other conclusion but to dismiss the present case. Accordingly, this petition is also dismissed on both grounds of lack of sanction as well as on merit. Ld. Sr. Panel Counsel for the RoC has apprised this Bench that the decision of the Hon'ble NCLAT is being impugned before the Hon'ble Apex Court. Needless to say that the RoC shall be entitled to seek restoration of this petition subject to the outcome of the proceedings before the Hon'ble Supreme Court." 3. The facts giving rise to this Appeal are as follows: i) The Appellant filed a winding up petition being CP No. 308/271-272/ND/2018 against M/s Euro Asia Mercantile Pvt. Ltd. (Respondent herein) before the NCLT, New Delhi on the basis of the SFIO Report d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... * Legend Infoways Private Limited (LIPL) * Microland Developers Private Limited (MDPL) * Utsav Securities Private Limited (USPL) * Aquarius Fincap & Credits Private Limited (AFCPL) * Shalini Holdings Limited (SHOL) e. Identities of the persons who are behind the whole trail of investments/web of cross investments in various companies could not be found out. f. All the companies and persons involved appear to be working in concert to create share capital, share application money, share premium and reserves and surplus in these companies just by creating accounting entries and circular transactions. Accounting entries thus created, are sought to be wrapped/adjusted by way of scheme of amalgamation. g. The allotment of large number of shares on a hefty premium without any justifiable business seems to be deliberate attempt to avoid payment of fees to the govt. exchequer under schedule X on increase in paid up share capital and authorized share capital. h. The transferee company is a listed company and out of the total 720 shareholders, 83% are individuals and the remaining 17% are body corporates. The scheme of amalgamation would result in drastic fall in individual s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings have since been completed on the basis of these documents and post search investigations. ITD has recorded findings that Jain Brothers had been functioning as accommodation entry operators with/through 49 companies/entities under their control. The Investigation revealed that Jain Brothers were the 'Directing mind and will' behind the functioning of all 49 companies including the Respondent herein. The observation made during the investigation are summarized as under to substantiate the above statement:- a) The primary records in the form of daily cash books and mediator ledgers for the period from January 2005 to August 2010 seized by the ITD, have been validated by the SFIO team through the bank statements of the concerned companies. The meticulous record keeping reveals that cash book were maintained by Jain brothers in a unified manner for all the entities under their control. The opening/closing balances shown in the cash books reflect joint opening/closing balance for the entire set of entities. The unified record keeping system has also established the nature of business conducted by Jain Brothers, which could be carried out only with the combined efforts made thor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Brothers were found from the residence of Sh. Satisw Pawa, director, Jagat Projects Ltd. during search by the ITD. i) Call records in the custody of ITD and reported in the assessment order of Jian Brothers and Jagat Projects Ltd. show regular conversation between Rajesh Aggarwal & S.K. Jain, Ravinder Goel & Rajesh Aggarwal and Sant Lal Aggarwal & Rajesh Aggarwal, though these persons have denied to have been in touch with each other. j) Admission made by Rajesh Aggarwal during search at his residence by the ITD on 18.01.2011 regarding role played by him in mediating transactions between Jagat Projects Ltd. and Jain Brothers at the behest of Ravinder Goel. k) Within a short span of time, the share allotted to SHL, USPL & Sohpl were bought back by relatives and associates of Directors of Jagat Projects Ltd. at heavily discounted price, completing the full cycle of regaining control over the company from outside entities. l) Though the modus operandi is explained with these specific cases as per the specific leads received form the income tax proceedings, the same are also true for all other beneficiaries and mediators, the transaction details of which are recorded in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the public interest. b. Appoint Liquidator for taking over the assets of the Respondent company. c. Issue directions to the directors of the Respondent Companies to file statement of affairs showing the assets and liabilities with the Liquidator appointed by the Hon'ble Tribunal. d. Direct the respondents to maintain status quo in respect of the properties of the company and the respondent company be prohibited from dealing with the funds of the company except with the prior permission of this Hon'ble Tribunal. e. Restrain the respondent company from dealing and transacting in any manner, whatsoever with the movable and/or immovable assets of the company and its Bank Accounts. After hearing the parties, the Tribunal dismissed the aforesaid winding up petition and passed orders (supra). Hence this Appeal. 4. The Ld. Counsel for the Appellant during the course of argument relied on the grounds mentioned in the memo of Appeal and also written submissions filed in Company Appeal (AT) No. 105 of 2020 which has been adopted in this Appeal and submitted that the impugned order dated 18.12.2019 passed by the Tribunal is illegal, unreasonable and against the well settled principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued after due discussion, deliberation and application of minds. However, the letter has been addressed to the Director, SFIO and a copy thereof has been sent to the petitioner but the perusal of the letter dated 29.08.2017 reveals that the purpose of addressing the Director, SFIO was only to request him to assist the ROC to file the winding up petition be deputing the concerned IO who had conducted the investigation. Further, there is no any prescribed format for granting sanction in a particular manner. The word sanction means official permission. In the present case, petitioner has not filed a winding up petition against the Respondent company without the permission of the Central Govt. The letter dated 29.08.2017 which is, in fact, a sanction letter has been issue dafter considering the notices and replies from the Respondent company. Since there is nothing in the reply of the Respondent except the request for the copy of the SFIO report, therefore, it was not considered necessary to give personal hearing to the Respondent company. 7. It is further submitted that the winding up petition was dismissed without examining and going into the details to know as to how Shri S.K. Jain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p Case 343. Though this case was under the old Act, 1956 but in substance the provisions of the new Act, 2013 are same. "5.xxxxx The legislature enacted a safeguard for the companies not to be harassed by frivolous or doubtful-of-success petitions for its winding-up by the Registrar in Section 439(6) of the Act by enjoining on the Central Government not to accord its sanction to the Registrar u/s 439(5) unless an opportunity is afforded to the company of making representations, if any. The delegate of the Central Government while according sanction, has a solemn duty to perform of informing himself about the true position of the company in the light of the explanations made by it. The explanations have to be considered with a judicial mind and outlook and are not to be discarded off-hand unless considered to be flimsy, fallacious or frivolous. It is not a mere formality to receive the explanations from the company and dismiss them as unsatisfactory without getting the doubts cleared. Xxxxx" 16. It is apparent that without giving reasonable opportunity of representation to Respondent No.1 the sanction has been granted that too without applying the mind thus we find no ground to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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