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TMI Blog2017 (7) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... ed affidavit stating that Petitioner Company is not governed by any other regulatory authority and no need to give notice and that notices were issued to Regional Director, Official Liquidator, Registrar of Companies and Income Tax Assessing Officer. It is clear that the Petitioner Company is a wholly owned subsidiary of ACI Worldwide Solutions Private Limited the Transferee Company. There is no reorganisation of share capital under the scheme. Thus the scheme can be sanctioned at the instant of Petitioner Company even though no separate application is filed by the Transferee Company since the petition is a transferred petition from Hon'ble High Court. Scheme allowed. - TP NO. 172 OF 2017 IN C.P. NO. 107 OF 2016 - - - Dated:- 28-6-2017 - MR. RATAKONDA MURALI AND DR. ASHOK KUMAR MISHRA, JJ. For The for the Appearing Parties : A. Murali and Ms. Kavitha H.C ORDER Company Petition No. 107 of 2016 was originally filed on behalf of Petitioner Company before Hon'ble High Court of Karnataka at Bengaluru. Subsequently this petition was transferred to this Hon'ble Tribunal basing on the Notification bearing No. GSR.1119(E) dated 7th December, 2016 issued by Minist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d factory automation equipment. It is averred that the Board of Directors of the Petitioner Company have approved the Scheme of Amalgamation (hereinafter referred to as the scheme ) on September 8, 2015 by virtue of which the Petitioner Company is proposed to be merged with its parent company i.e. the Transferee Company subject to confirmation of this Tribunal within whose jurisdiction the registered office of the Petitioner Company is situated. Copy of the Board Resolution dated September 8, 2015 is produced as ANNEXURE -D to the Company Petition. The Board of Directors of the Transferee Company has also approved the Scheme of Amalgamation at its meeting held on September 8, 2015. Copy of the Board resolution passed by the Board of Directors of the Transferee Company is produced herewith and marked as ANNEXURE E to the Company Petition. It is averred that as the Petitioner Company is a wholly owned subsidiary of the Transferee Company therefore, the Transferee Company is not filing a separate petition before the Court. It is averred that the salient features of the proposed Scheme are as follows: (i) With effect from the Appointed Date i.e. April 01, 2015, the Asset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled this petition before Hon'ble High Court which was numbered as Company Petition No. 107 of 2016 and later it was transferred to this Tribunal. In the Hon'ble High Court publication was ordered to publish in Hindu and Bangalore edition of Udayavani. The Petitioner Company effected the publication in the two newspapers. Notice was ordered to Regional Director, Registrar of Companies, Official Liquidator and Income Tax Department. The Regional Director through Registrar of Companies Karnataka at Bangalore filed an affidavit. On filing a report by Official Liquidator before Hon'ble High Court bearing No.74 of 2016 the Hon'ble High Court of Karnataka appointed T. Gandhi and Co Chartered Accountants to scrutinise the books of account and records of the Petitioner Company and submit report. The Chartered Accountants submitted his report to the Hon'ble High Court of Karnataka. The petition was transferred from the file of Hon'ble High Court at this stage. The Learned Counsel for Petitioner Company has filed a memo along with latest audited balance sheet as at March 31st 2015 to comply the direction given by the Regional Director in his report filed thro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... percent subsidiary company is seeking to Amalgamate with its holding company and the scheme is not detrimental in any manner to the interest of the members or creditors of the Transferee Company, then it is not necessary to examine the scheme by the Court with whose territorial jurisdiction the Transferee Company is situated. The contention of Learned Counsel for Petitioner Company the scheme does not provide for any reorganisation of capital and that there is no allotment of shares by the Transferee Company. In this connection Learned Counsel would contend that Petitioner Company is a 100 percent subsidiary of ACI Worldwide Solutions Private Limited / Transferee Company and the scheme is not detrimental in any manner to the interest of members or creditors of the Transferee Company. The Learned Counsel for Petitioner Company has filed a memo dated 20-04-2017 showing the shareholding pattern of the petitioner company in the tables given Below:- LIST OF SHAREHOLDERS AS ON 1.4.2015 Sl. No. Name Address of Shareholders No. of Shares Face Value Per Share (Rs.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner Company became a wholly owned subsidiary of Transferee Company. The Learned Counsel contended that the Board of Directors of the Petitioner Company have approved the Scheme of Amalgamation (hereinafter referred to as the Scheme ) on September 8, 2015 by virtue of which the Petitioner Company is proposed to be merged with its parent company i.e. the Transferee Company herein, subject to confirmation of this Hon'ble Tribunal within whose jurisdiction the registered office of the Petitioner Company is situated. Copy of the Board Resolution dated September 8, 2015 is produced as ANNEXURE - D to the Company Petition. The Board of Directors of the Transferee Company has also approved the Scheme of Amalgamation at its meeting held on September 8, 2015. Copy of the Board resolution passed by the Board of Directors of the Transferee Company is produced herewith and marked as ANNEXURE- E to the Company Petition. Hence for all practical purposes and in view of citation from Hon'ble High Court made by the Learned Counsel, the Board has approved the Amalgamation Scheme on 8th September 2015, on its being a wholly owned subsidiary from 7th September 2015. It is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the repealed enactments:- (c) Any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure or existing usage, custom, privilege, restriction or exemption shall not be affected, notwithstanding that the same respectively may have been in any manner affirmed or recognised or derived by, in, or from, the repealed enactments. Counsel would contend even Sec 6 of General Clauses Act is also applicable to the facts of this case as the proposition of law laid down under Companies Act, 1956 can be applied. We have seen the decisions cited, where a 100 percent subsidiary company is going to be merged with its holding company by virtue of the scheme of Amalgamation and if there is no restructuring of share capital of the holding company or issuing of any fresh shares pursuant to the scheme then there is no need for the Transferee Company to file separate application for sanction of the scheme. As rightly contended by Learned Counsel that the petitioner / Transferor Company is a wholly owned subsidiary of ACI Worldwide Solutions Private Limited the Transferee Company then there is no need for the Transferee Company to file separate app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ountants T. Gandhi and Co has observed that there was a change of share holding pattern subsequent to appointed date i.e. on 1.4.2015 and that the Transferee Company became 99.99% shareholder in the Transferor Company subsequent to the appointed date. The Learned Counsel for Petitioner Company would contend the Transferee Company acquired 99.99% shareholding in the Petitioner Company which was prior to Boards approval. So it is clear that the Transferee Company acquired 99.99% shares in the Petitioner Company and that the Petitioner Company became 100% subsidiary of Transferee Company. We have seen the affidavit / report of the Registrar of Companies Karnataka at Bengaluru. It is specifically stated in the affidavit that a notice was issued to the Income Tax Department but comments / objections were not received from the Income Tax Department. Further Registrar of Companies observed that Transferee Company to file balance sheet, profit and loss account and annual returns for the financial year ended 31.3.2015. The Petitioner Company has filed the balance sheet, profit and loss account and annual returns not only for the year ended 31.3.2015 but also for the year ended 31.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... percent subsidiary of the Transferee Company, there shall be no actual issuance of shares of the Transferee Company to the Shareholders of Transferor Company. M/s. T. Gandhi Co., appointed by the Hon'ble High Court to scrutinize the Books and Accounts of the Petitioner Company, on verification of Books Accounts, they have observed that there are Trade Payables in the Petitioner Company. Therefore Transferee Company shall ensure payment of the dues of Trade Creditors of the Petitioner / Transferor Company as per the agreed terms of payment between Trade Creditors and the Petitioner Company. The Petitioner Company as well transferee Company shall within thirty days of the date of the receipt of this order cause a certified copy of this order along with a copy of scheme of Amalgamation to be delivered to the Registrar of Companies concerned for registration in accordance with Rule 25(7) of Companies (Compromises, Arrangements Amalgamations) Rules, 2016. The appointed date as per the scheme of amalgamation is from 1st April 2015. The transferee company to file balance sheet, profit and loss account and annual returns for the financial year ended 31.03.2015 with t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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