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TMI Blog2012 (6) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... 388 OF 2010 - - - Dated:- 4-5-2012 - R.M. CHHAYA, J. Mrs. Sangeeta N. Pahwa for the Petitioner. Y.V. Vaghela and Sudhir M. Mehta for the Respondent. ORDER 1. The present petitions are filed seeking sanction of Scheme of Amalgamation proposed to be made between Aangi Shares Services Private Limited and Anand Yogesh Shares Consultancy Private Limited and Bhaktisuri Shares Services Private Limited and D.B. Securities Private Limited and H.K. Stock Services Private Limited and Parsvanath Fincon Private Limited and Prasann Shares Services Private Limited and Rajendrasuri Financial Services (Gujarat) Private Limited and Vajshah Shares Consultancy Private Limited With Dharmanath Shares Services Private Limited. 2. Aangi Shares Services Private Limited, the transferor company filed Company Application No. 379/2010 seeking dispensation of the meeting of shareholders on the ground that consent of all the shareholders are obtained. It was stated on behalf of the petitioner that the petitioner does not have any creditor. This Court vide order dtd. 16.12.2010 made in Company Application No. 379/2010 ordered dispensation of meeting of the shareholders of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prasann Shares Services Private Limited the transferor company, filed Company Application No. 385/2010 seeking dispensation of the meeting of shareholders on the ground that consent of all the shareholders are obtained. It was stated on behalf of the petitioner that the petitioner does not have any creditor. This Court vide order dtd. 16.12.2010 made in Company Application No. 385/2010 ordered dispensation of meeting of the shareholders of the petitioner company. 9. Rajendrasuri Financial Services (Gujarat) Private Limited the transferor company, filed Company Application No. 386/2010 seeking dispensation of the meeting of shareholders on the ground that consent of all the shareholders are obtained. It was stated on behalf of the petitioner that the petitioner does not have any creditor. This Court vide order dtd. 16.12.2010 made in Company Application No. 386/2010 ordered dispensation of meeting of the shareholders of the petitioner company. 10. Vajshah Shares Consultancy Private Limited the transferor company, filed Company Application No. 387/2010 seeking dispensation of the meeting of shareholders on the ground that consent of all the shareholders are obtained. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, 1956. 16. In response to the notice to the Regional Director, Western Region, Department of Company Affairs, Shri Pankaj Champaneri, Ld. Assistant Solicitor General of India, has appeared and has filed an affidavit of the Regional Director dated 25.04.2011. A further affidavit is filed by the Regional Director on 29.06.2011. The petitioner has filed an affidavit dated 03.05.2011 explaining the observations made by the office of the Regional Director. The petitioner has also filed further affidavit on 05.12.2011 along with which the petitioner has also annexed a copy of the judgment dated 17.09.2009 of this Court rendered in Company Petition No. 307 of 2008. 17. This Court earlier made an order dated 23.01.2012 directing issuance of notice upon Income Tax Department. In response to the said notice, Shri Sudhir Mehta, Ld. Advocate has appeared and has filed an affidavit of the Income Tax officer in Company Petition No. 229 of 2010, a common affidavit in Company Petition Nos. 220,222,225,226 and 227 of 2010 and also an affidavit in Company Petition No. 228 of 2010. 18. In response to the first observation of the Regional Director, which is with regard to allotment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra 11 and in particular 11.1 to 11.8 of the Scheme is in compliance with the accounting standard AS-14 notified by the Central Government u/s. 211(3A) of the Act. Without prejudice, it is stated on behalf of the petitioner that assuming without admitting that any of the petitioner company has made any breach of any of the provisions of the Companies Act, 1956, such breach would not affect the Scheme of Amalgamation. In case the competent authority finds the breach, it is always open for the competent authority under the Act to take necessary action in accordance with law. The rights and contentions of the concerned authorities as also of the petitioner companies, as the case may be, shall remain open and the order of this Court sanctioning the Scheme may not conclude the issue. 22. In response to the affidavits filed on behalf of the Income Tax Department, the petitioner placed reliance on the affidavit in reply filed to further report of Regional Director at Pg.123. Reliance is also placed on the judgment of this Court rendered in the Company Petition No. 307/2008. By relying upon the said judgment, it is urged that as held by this Court, any proceedings under the Income Tax A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt has also perused the record, the affidavits and the counter affidavits. The Court finds that the observation regarding Income Tax is squarely covered by the judgment of this Court rendered in Company Petition No. 307 of 2008. Pendency of any proceedings if any by the Income Tax Department cannot be a ground not to sanction the scheme. Even if there are any proceedings, the said proceedings cannot come in the way of sanction of the scheme. No conclusion is deserved to be recorded on the said aspect and the order of this Court in these petitions shall not be read as concluding the questions which may be raised by the Income Tax Department. The Court also finds that the issue and allotment of shares whether on premium or otherwise is in the sole domain of the Board of Directors of the Company. Furthermore, even the action of the Company in forfeiting the shares cannot be said to be against the provisions of Companies Act, 1956. In case of default in payment of call money, it is open for the Board of Directors of the Company to forfeit the shares of the concerned shareholder. In any case, such aspects would not affect Scheme of Amalgamation as proposed under Section 391-394 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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