TMI Blog2024 (3) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... properties interest of the Transferee Company was vested into the Transferee Company (petitioner no. 1) vide order dated July 14, 2009 of the Hon ble Court and order dated 09.08.2011 when the other companies (2) merged with the petitioner Company - Thus as per Section 2(57) of the Act. The Company gets the benefit of Section 2(57) of the Act, for the said financial year and not there after (subsequent financial years) - But the Company herein continued filing the Balance Sheet for the subsequent financial years being 2011-2012, 2012-2013, 2013-2014 2014-2015 in this case to take the benefit of amalgamation, year after year, to avoid their corporate social liability for which the case has been initiated by the complainant. There is thus sufficient materials on record making out a prima facie case against the petitioners in respect of the offences alleged, and as such the case is required to be permitted to proceed towards trial. Interference at this stage would amount to abuse of the process of Court. Revision dismissed. - HON BLE JUSTICE SHAMPA DUTT (PAUL) For the Petitioners : Mr. Jishnu Saha, Sr. Adv. Mr. Kuldip Mullick, Mr. Tirthankar Dey, Ms. Somali Bhattacharjee, Ms. Shukla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2013. iii) The Company replied vide its letter dated 03.10.2016 and taken the plea that the Net Worth of the Company is above the threshold because of amalgamation and the reserve created out of amalgamation is not included in the Net Worth as per the definition of Net-Worth given in Section 2(57) of the Companies Ac, 2013 and stated that none of the conditions specified in the clause is fulfilled by the Company as a result of which company is neither required to spend any amount not required to state the reasons for not spending the money in the Board s Report. 6. The complainant considering the reply of the company, observed as follows:- In view of the above as the Company has not made any reasons in respect of not spending the amount in its Board report for the year ended 31.03.2015 as required under the provisions of Section 135 read with 134(3)(o) of the companies Act, 2013, violation exists. Thereafter, a report based on the above facts was forwarded to the Regional Director, Eastern Region vide letter No. ROC/CSR/S-135/(FY 14-15)/54375/282 dated 30.05.2017 seeking sanction of competent authority for filing of prosecution by the Complainant. 7. It is submitted by the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies of the transferor company being HNG International Limited would stand transferred to the petitioner No. 1 being Brabourne Commerce Private Limited. By an order dated July 14, 2009 the Hon ble High Court was pleased to sanction the said scheme of amalgamation of the aforesaid company. Pursuant to the said order the assets, liabilities, properties and interest of the transferor company was vested into the transferee company being the petitioner No. 1 herein. Thereafter by an order dated January 5, 2012, the Hon ble Court was further pleased to dissolve the said transferor company without winding up, effective from the date of filing of the certified copy of the said order with the Registrar of Companies, West Bengal. b) That another application under Sections 391(2), 392 and 394 of the Companies Act, 1956 was taken out by the petitioner No. 1 and Ceramic Decorators Limited for sanction of Scheme of Amalgamation whereby all the assets, interest and all liabilities of the transferor company being Ceramic Decorators Limited would get transferred to the petitioner No. 1 being Brabourne Commerce Private Limited. The said application was taken up for hearing and the Hon ble Court by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of profits and securities premium account after deducting the aggregate value of accumulated loss, deferred expenditure and miscellaneous expenditure not written off, as per audited balance sheet of the company. Net worth does not include reserve created out of revaluation of assets, write-back of depreciation and amalgamation. h) The petitioners state that in spite of explanation by the petitioner No. 1 with regard to the purported notice issued by the respondent No. 2, in and around September 27, 2016 issued six purported show cause notices inter alia alleging that the petitioners have defaulted under Section 135 of the Companies Act, 2013. i) The said purported show cause notice were duly replied to by the petitioner No. 1 by a common letter dated October 3, 2016 inter alia stating that Section 135(1) of the Companies Act, 2013 has not been violated by the petitioner No. 1 and giving a details statement with regard to Net Worth turnover and Net Profit (Loan) during the Financial Years 2011-2012 to 2013-14. Further it was stated that the conditions specified in Section 135 of the Companies Act, 2013 does not apply to the petitioner No. 1. As a result whereof, the respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an independent director under sub-section (4) of Section 149, it shall have in its Corporate Social Responsibility Committee two or more directors.] (2) The Board's report under sub-section (3) of section 134 shall disclose the composition of the Corporate Social Responsibility Committee. 12. Section 134(3)(o) of the Companies Act:- 134. Financial statement, Board's report, etc.- (1) (2) (3) There shall be attached to statements laid before a company in general meeting, a report by its Board of Directors, which shall include- .. . (o) the details about the policy developed and implemented by the company on corporate social responsibility initiatives taken during the year; 13. Section 2 (57) of the Companies Act, 2013 defines:- Net Worth means the aggregate value of the paid-up share capital and all reserves created out of the profits, [securities premium account and debit or credit balance of profit and loss account], after deducting the aggregate value of the accumulated losses, deferred expenditure and miscellaneous expenditure not written off, as per the audited balance sheet, but does not include reserves created out of revaluation of assets, write-back of depreciatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 84,648 5,37,00,60,463 2. Current Liabilities (a) Short-term borrowings 2.3 1,00,000 (b) Other current liabilities 2.4 51,500 44,000 (c) Short-term provisions 2.5 1,41,77,670 88,34,413 Total 5,32,82,11,738 5,39,81,36,796 II. Assets 1. Non-current assets (a) Fixed assets (i) Tangible assets 2.6 (b) Non-current investments 2.7 5,21,00,84,521 5,21,13,10,779 (c) Long terms loans and advances 2.8 2. Current assets (a) Current Investments 2.7 16,95,335 2,03,03,972 (b) Cash and bank balances 2.9 3,92,74,410 1,58,372 (c) Short-term loans and advances 2.10 7,71,57,472 16,63,63,673 Total 5,32,82,11,738 5,39,81,36,796 Significant Accounting Policies 1 Notes on Financial Statement 2.1 to 2.25 19. BRABOURNE COMMERCE PRIVATE LIMITED Balance Sheet as at 31st March, 2015 [CIN-US1109WE1992PTC054375] (Amount in Rs) Particulars Note No. As at March 31, 2015 As at March 31, 2014 I. EQUITY AND LIABILITIES 1. Shareholder s Funds (a) Share Capital 2.1 1,91,97,920 1,91,97,920 (b) Reserves and Surplus 2.2 5,30.25,84,710 5,29,73,84,648 2. Current Liabilities (a) Short-term borrowings 2.3 1,00,000 1,00,000 (b) Other current liabilities 2.4 43,250 51,500 (c) Short-term provisions 2.5 1,40,87,670 1,14,77,670 To ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goals of a philanthropic, activist, or charitable nature by engaging in, with, or supporting professional service volunteering through pro bono programs, community development, administering monetary grants to non-profit organizations for the public benefit, or to conduct ethically oriented business and investment practices. 25. The Supreme Court has in the following cases emphasized the importance of CSR. (a) M.C. Mehta Anr. vs Union of India Ors., (1987 AIR 1086): This landmark case established the principle of absolute liability for industrial activities that harm the environment and people. The Supreme Court ruled that industries engaged in hazardous activities are liable to compensate affected parties, emphasizing the importance of environmental protection and community welfare. (b) Union Carbide Corporation ETC. vs Union of India ETC., (1992 AIR 248) : The Bhopal gas tragedy case highlighted the moral and legal responsibilities of corporations toward victims of industrial disasters. The Supreme Court upheld the importance of compensation rehabilitation, and environmental restoration as integral aspects of corporate accountability. 26. Section 2(57) of the Companies Act, 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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