2020 (1) TMI 1271 - Tri - Companies Law

Approval of the Scheme of Amalgamation - Section 230 to 232 and other applicable provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT - Since all the requisite statutory compliances having been fulfilled, this Tribunal, sanctions the Scheme of Amalgamation, annexed at Page Nos. 103 to 127 of the typed set filed along with the Company Petition as well as the prayer made therein - Notwithstanding the above, if there is any deficiency found or, violation committed qua any enactment, statutory rule or regulation, the sanction granted by this Tribunal will not come in the way of action being taken, albeit, in accordance with law, against the concerned persons, directors and officials of the petitioners. The scheme is approved - petition allowed.

Issues: Approval of Scheme of Amalgamation under Companies Act, 2013

Analysis:
1. The Joint Company Petition was filed for the approval of the Scheme of Amalgamation between two companies, the Transferor Company and the Transferee Company, under Sections 230 to 232 of the Companies Act, 2013, along with other applicable provisions and rules.
2. A dispensation of meetings of Equity Shareholders, Secured Creditors, and Unsecured Creditors was sought and granted by the Tribunal in a previous order based on the First Motion Application filed by the companies.
3. Petitioner Companies filed petitions for the sanction of the Scheme, and necessary directions were issued for notice to Statutory/Regulatory Authorities and paper publication in specific newspapers.
4. Affidavit of service was filed by the Petitioner Companies regarding compliance with the Tribunal's orders, including paper publication and serving notices to relevant authorities.
5. The Regional Director, Chennai, submitted a report raising observations regarding the Scheme, specifically related to the authorized capital of the Transferee Company and the payment of fees post-amalgamation.
6. The Petitioner Companies assured compliance with the observations raised by the Regional Director and sought suitable directions in this regard.
7. The Official Liquidator reported that the affairs of the Transferor Company were not conducted prejudicially, as per the provisions of the Companies Act.
8. The Chartered Accountant appointed by the Official Liquidator provided observations on the financial aspects of the companies, including shareholders' funds, share valuation, accounting treatment, and exchange ratio post-merger.
9. The Tribunal directed the Transferor Company to pay fees to the Official Liquidator for the Auditor who investigated the Transferor Company's affairs.
10. No representation was received from the Income Tax Department, and the Tribunal presumed no objection from them regarding the Scheme.
11. The Petitioner Companies submitted a certificate of compliance with Accounting Standards, fulfilling statutory requirements under the Companies Act, 2013.
12. Previous judgments were cited regarding the right of the Income Tax Department in schemes of amalgamation, emphasizing the protection granted to the Department for recovery of tax dues.
13. The Petitioner Companies confirmed the absence of investigation proceedings or pending actions against them under relevant provisions of the Companies Act.
14. In the absence of objections and with all statutory compliances fulfilled, the Tribunal sanctioned the Scheme of Amalgamation.
15. The Tribunal clarified that the sanction does not exempt the companies from payment of stamp duty, taxes, or other charges if due under the law, and actions can be taken against concerned persons for any violations.
16. Specific orders were issued regarding the transfer of properties, liabilities, proceedings, appointed date, employee transition, share allotment, and filing of documents with the Registrar of Companies.
17. The joint Company Petition was allowed based on the terms mentioned in the order, concluding the approval process for the Scheme of Amalgamation.

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