2018 (3) TMI 1783 - Tri - Insolvency and Bankruptcy

Approval of the scheme of arrangement - HELD THAT - In the present instance, disputes have arisen between the Petitioner Companies on the one hand and DOT on the other which are pending adjudication before various courts and it is for these courts to give directions, including any interim ordeRs. However the same cannot be a factor to deny the merger of the companies with each other as contemplated under the Scheme of Amalgamation for which sanction is sought for. However, in relation to Spectrum License and the like for which the Licensor is DOT, it is for the Licensing Authority to see whether both the companies abide by the guidelines including the guidelines prescribed for merger of two companies holding licenses granted by DOT and this Tribunal cannot enter into the same it being in exclusive domain Of the Licensing Authority. In case of any denial of merger of the licenses consequent upon the sanction of the Scheme it is for the Petitioner to seek appropriate remedy available to it under law against DOT. The approval of this Tribunal is conditional upon the requisite sanction and approval in accordance with the prescribed guidelines for transfer/ merger of various categories Of Telecommunication service Licenses/ authorization under Unified License (UL) on compromise/ arrangement and amalgamation of Companies by DOT which goes without saying and both the parties (i.e) the Companies or DOT will not be prevented from exercising their rights under due process of law and remedies as may be available to them in case of any grievance before the appropriate Tribunal or forum meant for the same in relation to the acts of each other.

Summary

Issues Involved:
1. Approval of the Scheme of Amalgamation.
2. Compliance with statutory requirements and regulatory approvals.
3. Transfer of assets and liabilities.
4. Issue of shares post-amalgamation.
5. Objections raised by the Income Tax Department.
6. Observations by the Official Liquidator.
7. Observations by the Regional Director.
8. Conditions imposed by the Department of Telecommunications (DOT).
9. Compliance with the Companies Act, 2013.

Detailed Analysis:

1. Approval of the Scheme of Amalgamation
The Tribunal considered the petition for the approval of the scheme of arrangement between the Transferor Company and the Transferee Company. The meetings of shareholders and creditors were convened as directed, with overwhelming support for the amalgamation. The scheme's salient features included the transfer of assets and liabilities, and the issuance of shares to the shareholders of the Transferor Company.

2. Compliance with Statutory Requirements and Regulatory Approvals
The Tribunal ordered notices to various regulatory authorities including the Registrar of Companies, Regional Director, Income Tax Department, and others. Compliance with these orders was confirmed through affidavits and acknowledgments of receipt from the respective offices. The Transferee Company, being listed on NSE and BSE, obtained No Objection Certificates from both exchanges.

3. Transfer of Assets and Liabilities
Upon the scheme becoming effective, all assets and liabilities of the Transferor Company were to be transferred to the Transferee Company without any further act or deed. This included movable and immovable assets, as well as all liabilities, which the Transferee Company undertook to meet, discharge, and satisfy.

4. Issue of Shares Post-Amalgamation
The Transferee Company was to issue and allot shares to the shareholders of the Transferor Company. These shares were to be free from all liens, charges, and encumbrances, and steps were to be taken for listing and receiving trading approval within a reasonable period.

5. Objections Raised by the Income Tax Department
The Income Tax Department raised concerns about outstanding demands against the Transferor Company. The Tribunal noted that the Income Tax Appellate Tribunal had stayed the outstanding demand, with the Transferor Company required to deposit certain amounts. The Transferee Company undertook to meet any tax liabilities transferred from the Transferor Company.

6. Observations by the Official Liquidator
The Official Liquidator noted disputed tax liabilities and confirmed that no complaints had been received against the proposed scheme. The Transferee Company’s net worth was deemed sufficient to cover any disputed tax liabilities of the Transferor Company.

7. Observations by the Regional Director
The Regional Director highlighted the Transferor Company's accumulated losses and auditors' qualified opinions on its financial statements. The Tribunal referenced the decision in Hindustan Lever Employees Union vs. Hindustan Lever Limited, emphasizing that the court's role is limited to ensuring fairness and compliance with statutory provisions, rather than interfering with corporate decisions approved by shareholders and creditors.

8. Conditions Imposed by the Department of Telecommunications (DOT)
The DOT imposed several conditions for the transfer/merger of licenses, including the requirement for the resultant entity to clear all dues and comply with spectrum retention guidelines. The Transferee Company provided undertakings to comply with these conditions and replace bank guarantees for deferred payments. The Tribunal emphasized that disputes between the companies and DOT were pending adjudication before various courts, and the Tribunal could not deny the merger based on these disputes.

9. Compliance with the Companies Act, 2013
The Petitioner Companies complied with the proviso to Section 230(7) and Section 232(3) by filing certificates from their auditors regarding compliance with accounting standards. No investigation or winding-up petitions were pending against the companies.

Conclusion:
The Tribunal sanctioned the scheme of amalgamation, subject to the conditions imposed by DOT and compliance with all applicable laws. The approval did not exempt the companies from paying stamp duty, taxes, or other charges as required by law. The order also preserved the rights of all parties to seek appropriate remedies in case of any grievances.