2021 (1) TMI 1178 - Tri - Companies Law

Seeking sanction of scheme of arrangement involving demerger - sections 230-232 of the Companies Act, 2013 - HELD THAT - The scheme of arrangement is not opposed to public interest and hence the scheme of arrangement involving demerger can be approved. Various directions with regard to holding, convening and dispensing with various meetings issued - the scheme is approved - application allowed.

Issues Involved:
1. Sanctioning of the scheme of arrangement involving demerger.
2. Compliance with statutory requirements and observations by regulatory authorities.
3. Financial and operational implications of the demerger.
4. Approval and voting by shareholders and creditors.
5. Tax implications and accounting standards compliance.

Issue-Wise Detailed Analysis:

1. Sanctioning of the Scheme of Arrangement Involving Demerger:
The application was filed under sections 230-232 of the Companies Act, 2013, for sanctioning the scheme of arrangement involving demerger between M/s. Kling Enterprises India Ltd. (transferor company) and M/s. Spacenet Enterprises India Ltd. (transferee company). The scheme provides for the demerger of the commodities trading division of the transferor company into the transferee company, along with all related assets and liabilities. The Tribunal approved the scheme, noting that it is not opposed to public interest and would benefit shareholders, employees, and other stakeholders.

2. Compliance with Statutory Requirements and Observations by Regulatory Authorities:
The Tribunal directed the petitioner-companies to comply with the observations made by the Regional Director, South East Region, Ministry of Corporate Affairs. The petitioner-companies provided undertakings to preserve books of account, ensure statutory compliance, and file necessary forms with the Registrar of Companies. The transferee company, being a listed entity, obtained NOC from NSE and confirmed compliance with FEMA/RBI provisions.

3. Financial and Operational Implications of the Demerger:
The financial summaries of both companies as of March 31, 2019, were provided. The transferor company's assets and liabilities, including its B2B commodity platform, will be transferred to the transferee company. The rationale for the demerger includes realignment and consolidation of the commodity business, synergies in operational processes, and increased competitive strength. The scheme involves the issuance of equity shares by the transferee company to the shareholders of the transferor company on a proportionate basis.

4. Approval and Voting by Shareholders and Creditors:
The Tribunal had earlier directed the convening of meetings of shareholders and creditors. Due to COVID-19, physical meetings were replaced with e-voting. The resolution was passed with 99.78% of votes in favor. Notices were served to relevant authorities, and publications were made in newspapers. The official liquidator confirmed no specific representation was required.

5. Tax Implications and Accounting Standards Compliance:
The Tribunal ordered that the transfer of assets and liabilities be in accordance with section 2(19AA) of the Income-tax Act, 1961. The tax implications are subject to the final decision of tax authorities, with appellate provisions available. The petitioner-companies were directed to comply with the Accounting Treatment Standards prescribed under section 133 of the Companies Act, 2013. The scheme's accounting treatment was certified to conform to these standards.

Final Orders:
1. The scheme of arrangement is approved without exemption from stamp duty, taxes, or other charges.
2. The demerged undertaking is transferred to the resulting company as a going concern.
3. All assets, property, rights, and liabilities of the demerged undertaking are transferred to the resulting company.
4. Any restructuring of equity share capital requires Tribunal approval.
5. Compliance with Regional Director's observations is mandatory.
6. Tax implications are subject to final tax authority decisions.
7. Compliance with Accounting Treatment Standards is required.
8. Pending proceedings related to the demerged undertaking continue against the resulting company.
9. The scheme is effective from April 1, 2019.
10. The resulting company must pay any difference in stamp duty.
11. Statutory compliance of all applicable laws is required.
12. Annual compliance statements must be filed with the Registrar.
13. Any person may apply to the Tribunal for necessary directions.

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