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TMI Blog2007 (12) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... rty Act, 1882, and in those cases where the property is on lease with restriction on the transfer or sub-letting of such a property, the sanction of the relevant authority is sought before its transfer. If, as a result of the transfer of any assets or shares of the transferor company to the transferee company a liability of the capital gains tax may arise against any company or its shareholders, this order shall not absolve such company or the shareholders from payment of taxes which may be leviable under the existing taxing laws and as such the taxing authorities shall be free to proceed in the matter of tax irrespective of the present order of amalgamation. The present order of amalgamation will not absolve any of the companies or i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shareholders for transferring the resolution of the board of directors of all the companies and all the members accorded their approval for amalgamation and for sanctioning the scheme of amalgamation. 3. The creditors of the companies in their meetings have also not raised any objection for the scheme of amalgamation. On the basis of the report, notices of this petition were issued to the Company Law Board as well as to the Official Liquidator. The Regional Director, Western Region, Ministry of Corporate Affairs, Mumbai, has submitted his report on 26-11-2007, in which he has mentioned that he has no objection so far as sanction of the scheme of amalgamation is concerned. He has raised only a technical objection that since five compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be intended to apply only in cases where there is commencement of winding up either by presentation of a winding up petition or any resolution of voluntary winding up of a company has been passed. That is the case only where an Official Liquidator has been appointed or could be appointed by the court, otherwise there would be inconsistency and absurdity of the court appointing an Official Liquidator in case of a going concern where no winding up petition has been presented or resolution for voluntary winding up has been passed. Further, the first proviso to section 394(1) contemplates a case of a company which is being wound up and before sanctioning the scheme, the report of the Company Law Board or the Registrar is a condition preceden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has relied on the judgment of the Apex Court in the case of Saraswati Industrial Syndicate Ltd. v. CIT [1990] 186 ITR 278 1 . 8. From perusal of the aforesaid judgment, I find that in that case the Apex Court was not considering the scheme of amalgamation, but was considering the levy of income-tax. In paragraph 4 of the said judgment, the Apex Court has held that under the scheme of amalgamation, which was the scheme in the case of Saraswati Industrial Syndicate Ltd. ( supra ), there was provision of dissolution of the company. Thus, question involved in the present case was not there before the Apex Court. This court in the case of Kriti Plastics Ltd., In re [1993] 78 Comp. Cas. 138 (MP), has held that once shareholders of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t authority is sought before its transfer. ( ii )If, as a result of the transfer of any assets or shares of the transferor company to the transferee company a liability of the capital gains tax may arise against any company or its shareholders, this order shall not absolve such company or the shareholders from payment of taxes which may be leviable under the existing taxing laws and as such the taxing authorities shall be free to proceed in the matter of tax irrespective of the present order of amalgamation. ( iii )The present order of amalgamation will not absolve any of the companies or its directors from the liability for breach of any law or control order which might have been committed before the order of amalgamation. 9. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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