2017 (12) TMI 1877 - Tri - Companies Law

Sanction of Amalgamation Scheme - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT - From the material on record, the Scheme appears to be fair and reasonable and is not in violation of any provisions of law and is not contrary to public policy. None of the parties concerned have come forward to oppose the Scheme. Since all the requisite statutory compliances have been fulfilled, Company Scheme filed by the Transferor and Transferee Company are made absolute in terms of prayer clause of the petition - The Petitioner Companies to pay costs of Rs. 25,000/- each to the Regional Director, Western Region, Mumbai. Transferor Company to pay cost of Rs. 25,000/- to the Official Liquidator, High Court, Bombay.

Summary

Issues Involved:
1. Sanction of Scheme of Amalgamation under Sections 230 to 232 of the Companies Act, 2013.
2. Compliance with statutory requirements and Accounting Standards.
3. Observations and objections raised by the Regional Director and the Registrar of Companies.
4. Solvency Certificate requirement.
5. Compliance with RBI and FEMA guidelines.
6. Tax implications and compliance with the Income Tax Act, 1961.
7. Approval from shareholders and public interest considerations.
8. Dissolution of the Transferor Company without winding up.
9. Adjudication of stamp duty and filing requirements.

Issue-wise Detailed Analysis:

1. Sanction of Scheme of Amalgamation under Sections 230 to 232 of the Companies Act, 2013:
The Tribunal was petitioned to sanction the Scheme of Amalgamation between Dimexon (India) Holding Private Limited (Transferor Company) and Dimexon Diamonds Limited (Transferee Company). The scheme aimed at simplifying the corporate structure, improving management, enhancing financial strength, rationalizing costs, and improving cash management.

2. Compliance with statutory requirements and Accounting Standards:
The petitioner companies complied with all statutory requirements and filed necessary affidavits of compliance. The Transferee Company undertook to comply with all applicable Accounting Standards, including AS-14 (IND AS-103) and AS-5 (IND AS-8).

3. Observations and objections raised by the Regional Director and the Registrar of Companies:
The Regional Director's report highlighted several observations, including compliance with accounting standards, tax implications, share capital adjustments, and compliance with RBI and FEMA guidelines. The petitioner companies provided clarifications and undertakings to address these observations. The Registrar of Companies raised issues regarding the main objects of the companies, solvency certificate, appointed date, and compliance with FEMA guidelines.

4. Solvency Certificate requirement:
The petitioner companies argued that the solvency certificate requirement under Section 233 of the Companies Act, 2013, was not applicable as the petition was filed under Sections 230 to 232.

5. Compliance with RBI and FEMA guidelines:
The Transferee Company obtained approval from the Reserve Bank of India and undertook to comply with relevant FEMA regulations. The petitioner companies also provided a no-objection letter from the RBI and undertook to comply with RBI/FEMA guidelines for the allotment of new shares, debentures, and cash consideration.

6. Tax implications and compliance with the Income Tax Act, 1961:
The petitioner companies undertook to comply with all applicable provisions of the Income Tax Act, 1961, and addressed all tax issues arising out of the scheme.

7. Approval from shareholders and public interest considerations:
The scheme was unanimously approved by the shareholders of both companies. The Tribunal noted that the scheme appeared fair, reasonable, and not in violation of any law or public policy. No objections were raised by any parties concerned.

8. Dissolution of the Transferor Company without winding up:
The Official Liquidator reported that the affairs of the Transferor Company were conducted properly and recommended its dissolution without winding up.

9. Adjudication of stamp duty and filing requirements:
The petitioner companies were directed to lodge a copy of the order and the scheme with the Superintendent of Stamps for adjudication of stamp duty within 60 days. They were also required to file a certified copy of the order with the Registrar of Companies electronically within 30 days.

Conclusion:
The Tribunal accepted the clarifications and undertakings provided by the petitioner companies, sanctioned the Scheme of Amalgamation, and directed the petitioner companies to comply with all statutory requirements, including payment of costs to the Regional Director and the Official Liquidator. The scheme was deemed fair, reasonable, and in compliance with legal and public interest considerations.