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TMI Blog2021 (12) TMI 1438X X X X Extracts X X X X X X X X Extracts X X X X ..... Private Limited ('NABPL' or 'the Transferee Company') and their respective shareholders ('Scheme'). 4. The Learned Counsel for the Petitioner Companies submits that the Petitioner Companies are engaged in the business of construction, developers, builders, contractors and all types of construction and development work. 5. The Counsel for the Petitioner Companies further submits that the rationale for the Scheme is as under: The circumstances which necessitate the proposed amalgamation of the Transferor Company with the Transferee Company are, inter alia, as follows: (a) The Transferee Company has been incorporated with similar business objectives as that of the Transferor Company and both the entities have the same key managerial personnel. (b) The proposed Scheme would enable pooling of resources of the Transferor Company and the Transferee Company thereby beneficially utilising the same in the combined entity. (c) The proposed Scheme will result in usual economies of a centralized and a combined entity including elimination of duplicate work, reduction in overheads, better and more productive utilization of human and other resource and enhancement of overall business e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with other applicable Accounting Standards such as AS5(IND AS-8) etc. In so far as observations made in paragraph IV (a) of the Report of Regional Director is concerned, the Petitioner Companies undertake that in addition to complying with AS-14(IND AS103); the Transferee Company undertakes to pass such accounting entries which are necessary to comply with all other applicable Accounting Standards such as AS-5(IND AS-8), etc. That the company in its reply acknowledgement dated 30.11.2021 has given reply on the observations made by the Regional Director in its Report/ Representation dated 29.11.2021. (b) As per Definition of the Scheme, "Appointed Date" means 1st day of April 2021 or such other date as may be approved by the National Company Law Tribunal, Mumbai Bench (hereinafter referred to as 'NCLT' or 'Tribunal') for the amalgamation of the Transferor Company with the Transferee Company; And "Effective Date" means the last of the dates on which the certified copy of the orders of the National Company Law Tribunal sanctioning the Scheme are filed with the Registrar of Companies, Mumbai; In this regard, it is submitted that Section 232(6) of the Companies Act, 2013 states tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms of Section 230(1) read with subsection (3) to (5) of Section 230 of the Act and the Minutes thereof are duly placed before the Tribunal. In so far as observations made in paragraph IV (d) of the Report of Regional Director is concerned, the Learned Counsel of the Petitioner Companies submits that the Tribunal had vide its order dated September 1, 2021 had provided dispensation for holding the meeting of the shareholders and creditors in view of the fact that such shareholders and creditors had given their consent to the Scheme vide an affidavit. Accordingly, the Petitioner Companies were not required to hold a meeting of the shareholders and creditors. (e) Clause-12.4 of Accounting Treatment of the scheme stated that the excess of the assets over liabilities of the Transferor Company transferred to the Transferee Company, after providing for adjustment as per Clause 12.2 of the Scheme over the amount credited to equity share capital, shall be credited to Capital Reserve Account of the Transferee Company. In case of there being a deficit, the same shall be debited to Goodwill Account. In this regard, it is stated that such Capital Reserve, arising out of the amal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner Companies have been explained in above table. The clarifications and undertakings given by the Petitioner Companies in response to the said Report are accepted by this Tribunal. 11. The Official Liquidator, High Court, Bombay, has filed his report dated December 2, 2021 inter alia, stating therein that the affairs of the Transferor Company have been conducted in a proper manner not prejudicial to the interest of the shareholders of the Transferor Company and that the Transferor Company may be ordered to be dissolved without winding up by this Tribunal. 12. From the material on record, the Scheme appears to be fair and reasonable and does not violate of any provisions of law and is not contrary to public policy. 13. The Counsel for the Petitioner Companies further submits that upon coming into effect of the Scheme, and in consideration for the transfer and vesting of the entire business of the Transferor Company into the Transferee Company, the Transferee Company shall, without any further application, act, instrument or deed, issue and allot fully paid up shares to the extent indicated below to the members of the Transferor Company whose names appear in the register of mem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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