2007 (8) TMI 461 - HC - Companies Law

Reduction of Share capital - Held that - The reduction of share capital of the petitioner-company, as resolved in the special resolution of the extraordinary general meeting of the company held on 15-12-2006, is confirmed as do not find any legal impediment to the proposed reduction of share capital and the form of minute under section 103(1)(b) of the Act as set out in para 13 of the petition is approved. The petitioner-company shall deliver to the Registrar of Companies a certified copy of this order including minute as approved within a period of four weeks from the date of obtaining the certified copy. The notice of registration of this order and of the minute as approved by the court shall be published in the daily The Tribune (English) and the daily Dainik Bhaskar (Hindi) within 2 weeks of the receipt of certified copy of registration from the Registrar of Companies.

Issues Involved:
1. Confirmation of reduction of share capital under Section 101 of the Companies Act, 1956.
2. Dispensation of procedural requirements under Section 101(2) of the Companies Act, 1956.
3. Legality of adjusting "deferred tax liability" against the securities premium account.

Detailed Analysis:

1. Confirmation of Reduction of Share Capital:

Prakash Industries Limited filed a petition under Section 101 of the Companies Act, 1956, seeking confirmation for the reduction of its share capital. This reduction was proposed to utilize the securities premium account to meet the deferred tax liability in terms of Accounting Standard-22, as resolved by a special resolution passed during an extraordinary general meeting on 15-12-2006. The petition also sought dispensation with the procedural requirements of Section 101(2) of the Act, arguing that the reduction did not involve any diminution of unpaid capital liability or payment to any shareholder, and that the company had no creditors entitled to object.

2. Dispensation of Procedural Requirements:

The petitioner-company, initially registered on 31-7-1980 and later renamed Prakash Industries Limited, argued that Article 47 of its Articles of Association allows for capital reduction by special resolution. Article 123(3) permits the use of the securities premium account for various purposes, including paying up unissued shares as fully paid bonus shares. The board of directors resolved on 11-11-2006 to reduce the share capital by utilizing the securities premium account to meet the deferred tax liability, subject to shareholder approval and court confirmation.

During the extraordinary general meeting on 15-12-2006, a special resolution was passed authorizing the company to utilize the securities premium account for meeting the deferred tax liability, deferred revenue expenses, and capital issue expenses. The petition stated that the reduction did not involve diminution of unpaid capital liability or payment to any shareholder, and the company had no creditors entitled to object.

3. Legality of Adjusting Deferred Tax Liability:

The court examined whether the deferred tax liability could be adjusted against the securities premium account and the procedure required for such a reduction. Section 78(1) of the Act treats the securities premium account as paid-up share capital, and Section 78(2) allows its application for specific purposes, such as paying up fully paid bonus shares, writing off preliminary expenses, and others. However, if the application does not fall within these purposes, the provisions for reduction of share capital under Sections 100 and 101 must be followed.

The petitioner's Articles of Association authorized the use of the securities premium account for lawful purposes, and the board resolved to reduce the share capital by utilizing this account for deferred tax liability. The special resolution passed during the extraordinary general meeting confirmed this.

The court noted that other High Courts, including the Calcutta High Court in Adhunik Metaliks Ltd. and the Delhi High Court in E. Medilife Co. Ltd., had confirmed similar reductions of share capital for meeting deferred tax liabilities. The Andhra Pradesh High Court in Hyderabad Industries Ltd. also confirmed reductions by adjusting the share premium account against permanent investment losses.

Conclusion:

The court concluded that the proposed reduction of share capital did not result in diminution of unpaid capital liability or payment to any shareholder, and the interests of creditors and shareholders were not affected. The petitioner-company was permitted to dispense with the requirements of Section 101(2) of the Act. The reduction of share capital, as resolved in the special resolution of the extraordinary general meeting on 15-12-2006, was confirmed, and the form of minute under Section 103(1)(b) of the Act was approved.

The petitioner-company was directed to deliver a certified copy of the order and minute to the Registrar of Companies within four weeks and publish the notice of registration in specified newspapers within two weeks of receiving the certified copy. The petition was disposed of accordingly.

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