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2021 (5) TMI 473 - Tri - Companies LawApproval 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 - It is seen from the records that the Petitioner Companies have filed affidavits of service via email to the Registry of this Tribunal on 14.09.2020 in relation to the compliance of the order passed by the Tribunal as noted above and a perusal of the same discloses that the Petitioner Companies have effected the paper publication as directed by the Tribunal in one issue of Business Standard (Chennai Edition) in English and Dinamani (Chennai Edition) in Tamil on 29.06.2020. Further notices have been also served to (i) The Regional Director, Southern Region, Chennai on 11.06.2020 (ii) Registrar of Companies, Chennai on 11.06.2020 (iii) Income Tax Authorities on 11.06.2020 (iv) Official Liquidator, Chennai on 11.06.2020 (v) Department of Pharmaceuticals on 11.06.2020 and proof of the same acknowledgements/receipts have also been enclosed. The Regional Director, (for brevity 'RD') Chennai to whom notice was issued has filed his Report before this Tribunal on 09.09.2020, eventhough not represented before this Tribunal has stated that Clause 9 of Part II of the Scheme provide for protection of the interest of the employees/staff/workmen of the Transferor Company. It is also stated that as per the report of Registrar of Companies, Chennai, both the Transferor and Transferee Companies are regular in filing the statutory returns and there is no prosecution filed, no complaints pending and no inspection/investigation has been ordered/pending in respect of both the companies. Thus, the RD after examining the Scheme, except for the above observation, has decided not to make any objection to the Scheme. In relation to the observation as made by the RD, the Transferee Company has filed an Affidavit by way of email to the Registry of this Tribunal on 14.09.2020 and it is stated in the said Affidavit that the Transferee Company has undertaken to file the revised Memorandum of Association/Articles of Association factoring the merger of the authorized capital with the Registrar of Companies and has also undertaken to make payment of the differential authorized capital fee on account of merger of authorized capital. Further, it has also been stated in the said Affidavit that the Appointed Date in the Scheme shall be 01.04.2019 and there would not be any change in the date. The Official Liquidator sought to take on record and consider the report of the Chartered Accountant and has also sought to fix the remunerations payable to the Auditor who has investigated into the affairs of the Transferor Company - The Petitioner Companies have filed the certificate of the Independent Statutory Auditor in relation to compliance with the Accounting Standards with respect to the Scheme. Thus, the Petitioner Companies have complied with proviso to Section 230(7)/Section 232(3) of the Companies Act, 2013. In view of absence of any other objections having been placed on record before this Tribunal and since all the requisite statutory compliances having been fulfilled, this Tribunal, sanctions the Scheme of Amalgamation, annexed as Annexure A4 with the Company Petitions as well as the prayer made therein - While approving the Scheme, it is clarified that this order should not be construed as an order in any way granting exemption from payment of stamp duty, taxes or any other charges, if any payment is due or required in accordance with law or in respect to any permission/compliance with any other requirement which may be specifically required under any law. Petition allowed.
Issues Involved:
1. Approval of the Scheme of Amalgamation under Sections 230-232 of the Companies Act, 2013. 2. Dispensation of meetings of shareholders and creditors. 3. Compliance with statutory and regulatory requirements. 4. Protection of employees' interests. 5. Payment of fees for enhanced authorized capital. 6. Objections by the Income Tax Department. 7. Compliance with Accounting Standards. 8. Absence of pending investigation proceedings. Issue-wise Detailed Analysis: 1. Approval of the Scheme of Amalgamation: The Petitioner Companies sought approval for the Scheme of Amalgamation between M/s. Oakley Bowden Pharma Private Limited (Transferor Company - 1) and M/s. Allianz Biosciences Private Limited (Transferee Company) under Sections 230-232 of the Companies Act, 2013. The Tribunal sanctioned the Scheme of Amalgamation, annexed as "Annexure A4" with the Company Petitions, and granted the prayer made therein. 2. Dispensation of Meetings: The Tribunal dispensed with the meetings of the Equity Shareholders and Unsecured Creditors of the Transferor Company and the Equity Shareholders and Secured Creditor of the Transferee Company, based on consent affidavits. However, it directed the meeting of the Unsecured Creditors of the Transferee Company to be convened. 3. Compliance with Statutory and Regulatory Requirements: The Petitioner Companies complied with the statutory and regulatory requirements, including serving notices to the Regional Director, RoC, Chennai, Official Liquidator, Income Tax Department, and Department of Pharmaceuticals. The Tribunal ordered paper publications in "Business Standard" and "Dinamani." 4. Protection of Employees' Interests: Clause 9 of Part II of the Scheme provided for the protection of the interests of the employees/staff/workmen of the Transferor Company. The Tribunal ensured that all employees of the Transferor Company would become employees of the Transferee Company without any break or interruption in their service. 5. Payment of Fees for Enhanced Authorized Capital: The Regional Director observed that the Transferee Company must comply with Section 232(3) of the Companies Act, 2013, by making an application with RoC, Chennai, for payment of the balance fee for the enhanced authorized capital. The Transferee Company undertook to file the revised Memorandum of Association/Articles of Association and make the requisite payments. 6. Objections by the Income Tax Department: The Income Tax Department raised objections regarding tax demands for various assessment years. The Tribunal noted that the legitimate interests of the Income Tax authorities to recover lawful dues remain intact, and they can proceed against the Transferee Company in accordance with law. The Tribunal cited precedents affirming that tax liabilities would be satisfied by the Transferee Company as determined by competent forums. 7. Compliance with Accounting Standards: The Petitioner Companies filed a certificate from the Independent Statutory Auditor confirming compliance with Accounting Standards concerning the Scheme. The Tribunal acknowledged this compliance as per Section 230(7)/Section 232(3) of the Companies Act, 2013. 8. Absence of Pending Investigation Proceedings: The Petitioner Companies submitted that no investigation proceedings were pending against them under the Companies Act, 1956 or 2013. The Tribunal found no objections or pending investigations and thus sanctioned the Scheme. Final Orders: The Tribunal ordered the transfer of all properties, rights, interests, liabilities, powers, engagements, obligations, and duties of the Transferor Company to the Transferee Company. It directed the continuation of all pending proceedings by or against the Transferor Company against the Transferee Company. The appointed date for the Scheme was specified as 1st April 2019. The Tribunal also ordered the filing of the revised Memorandum and Articles of Association and the payment of differential fees for the enhanced authorized capital. The Transferor Company was directed to pay remuneration to the Official Liquidator's appointed auditor. The Tribunal clarified that the order does not exempt payment of stamp duty, taxes, or other charges due under the law. Conclusion: The Company Petitions were allowed on the aforementioned terms, and the Scheme of Amalgamation was sanctioned with the necessary statutory compliances and protections for the rights of the Income Tax authorities and other regulatory bodies.
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