2021 (4) TMI 292 - Tri - Companies Law

Approval of scheme of amalgamation - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT - From a perusal of the material brought on record, it appears that the Scheme of Amalgamation is fair, reasonable and is not detrimental to the Members or Creditors or contrary to public policy. Further, as per the Petition, the Scheme in question will bring about operational synergies of the combined entity, have a more efficient and cost-effective management system in view of consolidation of operations Consolidation and Synergies in business operations; Increase in net worth of the Transferee Company and will facilitate effective and fast mobilization of financial resources for meeting its increased capital expenditure for future expansion, etc. The procedure specified in sub-sections (1) and (2) of section 232 of the Companies Act, 2013 has been complied with, and hence the Scheme of Amalgamation, as approved by the Boards of Transferor Company, is hereby sanctioned. The procedure specified in sub-sections (1) and (2) of section 232 of the Companies Act, 2013 has been complied with, and hence the Scheme of Amalgamation, as approved - the scheme is sanctioned. Application allowed.

Issues Involved:
1. Approval of the Scheme of Amalgamation under Sections 230 to 232 of the Companies Act, 2013.
2. Compliance with FEMA/RBI regulations and FDI guidelines.
3. Payment of stamp duty and compliance with Section 232(3)(i) of the Companies Act, 2013.
4. Treatment of overdue liabilities and compliance with RBI regulations.
5. Compliance with CSR obligations under Section 135 of the Companies Act, 2013.
6. Compliance with related party transaction regulations under Section 188 of the Companies Act, 2013.
7. Outstanding tax demands and scrutiny assessments.
8. Compliance with procedural requirements and filing of statutory returns.

Detailed Analysis:

1. Approval of the Scheme of Amalgamation:
The Tribunal sanctioned the Scheme of Amalgamation between M/s. Soha Systems India Private Limited (Transferor Company) and M/s. Akamai Technologies Solutions (India) Private Limited (Transferee Company) with effect from 1st April 2018. The Scheme was deemed fair, reasonable, and not detrimental to the Members or Creditors or contrary to public policy. The Scheme aimed to bring operational synergies, efficient management, and increased financial resource mobilization.

2. Compliance with FEMA/RBI Regulations and FDI Guidelines:
The ROC and RD observed that both companies are foreign-owned and must comply with FEMA/RBI regulations. The Petitioner Companies affirmed compliance with all relevant regulations and undertook to comply with post-approval filings. The Tribunal directed strict compliance with FEMA and RBI regulations.

3. Payment of Stamp Duty and Compliance with Section 232(3)(i):
The ROC and RD noted that the Scheme did not mention additional payment of stamp duty and filing fees. The Petitioner Companies undertook to comply with Section 232(3)(i) and pay the difference fee after setting off the fee already paid by the Transferor Company. The Tribunal clarified that sanctioning the Scheme should not be construed as an exemption from payment of stamp duty, taxes, or other charges.

4. Treatment of Overdue Liabilities and Compliance with RBI Regulations:
The ROC and RD highlighted overdue payables aggregating to ?40,90,940/- towards ESOP, RSU, and ESPP. The Petitioner Companies stated that the amount was insignificant relative to their operations and undertook to comply with any RBI directions. The Tribunal directed strict compliance with RBI regulations regarding these overdue liabilities.

5. Compliance with CSR Obligations under Section 135:
The ROC and RD pointed out unspent CSR amounts for FY 2017-18 and 2018-19. The Petitioner Companies explained the reasons for the unspent amounts and stated compliance with Section 135. The Tribunal directed the Transferee Company to submit supporting documents showing compliance within 30 days of the Scheme's approval.

6. Compliance with Related Party Transaction Regulations under Section 188:
The ROC and RD noted related party transactions and sought compliance under Section 188. The Petitioner Companies argued that as a Private Limited Company, Section 188 was not applicable, and transactions were at arm's length. The Tribunal directed the Companies to show compliance to the satisfaction of the ROC within 30 days if the Scheme is allowed.

7. Outstanding Tax Demands and Scrutiny Assessments:
The RBI stated that the Transferee Company had outstanding tax demands for various assessment years. The Tribunal noted that the tax implications arising from the Scheme are subject to the final decision of the concerned Income Tax Authorities and directed the Companies to ensure compliance with tax obligations.

8. Compliance with Procedural Requirements and Filing of Statutory Returns:
The Tribunal directed the Petitioner Companies to file all due statutory returns immediately and ensure compliance with all provisions of the Companies Act, 2013. The Companies were also directed to submit quarterly/annual status reports of such compliances through an affidavit by the Managing Director/Director along with CA/ICWA/CS certificates.

Conclusion:
The Tribunal sanctioned the Scheme of Amalgamation with specific directions to ensure compliance with regulatory requirements, payment of dues, and submission of necessary documents. The Companies were directed to comply with FEMA, RBI, and CSR regulations, address overdue liabilities, and fulfill all procedural requirements under the Companies Act, 2013. The Scheme's approval was subject to the condition that it would not exempt the Companies from any legal obligations or penalties for prior violations.

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