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TMI Blog2019 (3) TMI 1647X X X X Extracts X X X X X X X X Extracts X X X X ..... he Transferor Company or its Authorized Signatories are directed that after the completion of the process of Amalgamation to handover the possession of the Books of Accounts and other relevant documents of the Transferor Company to the Transferee Company for the purpose of section 239 of the Companies Act, 2013. X X X X Extracts X X X X X X X X Extracts X X X X ..... re and the Company currently bears CIN U74999KA2017PTC108465. The Registered office of the Transferee Company is situated at No. 13/3, Lavelle Road, 1 st Cross, Bengaluru - 560 001. vi) The Authorised, issued, subscribed and paid-up share capital of Transferee Company as on February 28, 2018 was as follows: Authorised Capital Amount in INR 12,00,000 Equity Shares of Re. 1/- each 12,00,000/- Issued, Subscribed and Paid-Up Capital Amount in INR 11,26,943 Equity Shares of Re. 1/- each fully paid up 11,26,943/- Subsequent to February 28, 2018, till the date of filing of the Petition, there has been no change in the share capital of the Transferee Company. Since the Company was incorporated in December 2017, the unaudited, provisional balance sheet as on February 28, 2018 has been produced with the petition. vii)The main objects to be pursued by the Transferee Company on its incorporation inter alia are to develop and deliver strategic creative content, low cost implementation and technology solutions to the world's leading brands and media companies, etc. viii) The Board of Directors of the Transferor has approved and adopted the Scheme of Arrangement of Ad2pro M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewspaper and 'Udayavani' a Kannada daily Newspaper on 22.11.2018 and have also filed proof of service of notice on Regional Director, Ministry of Corporate Affairs, Hyderabad, Registrar of Companies, Bengaluru, Karnataka and OL and to concerned Income Tax Officer. 6. The Official Liquidator attached to the High Court of Karnataka has filed report OLR No.97/2018 dated 29th August, 2018 making the following requests: a) That the Official Liquidator may be permitted to appoint a Chartered Accountant from the panel approved by the Hon'ble High Court of Karnataka for scrutiny of the books of account and records of Transferor Company and to submit reports on the affairs of the Company. b) That the Petitioner Company may be directed to pay the professional fees of the Chartered Accountant as may be mutually agreed and that in case the Chartered Accountant charges exorbitant fee which is not acceptable to the Transferor Company, the Official Liquidator shall appoint other Chartered Accountant by cancelling the appointment of the Chartered Accountant. 7. The Registrar of Companies, Karnataka has filed the observations dated 31.10.2018 making the following observations: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the share exchange ratio report submitted, it is found that on 28.02.20189 the transferee company held 300 equity shares and 11,26,643 preference shares in the transferor company and Ventureast Proactive Fund LLC did not hold any shares. It seems there might be a share transfer/acquisition happened between the said foreign entity and transferee company. Furthermore, the transferee company does not have sufficient amount of authorised capital to issue 15,91,243 shares to the shareholders of the transferor company (as per the share exchange ratio mentioned at Clause No. 15 of the Scheme). Hence it needs to increase its authorised capital. viii. There are no prosecutions, complaints, technical scrutiny/inspections pending in this office against the petitioner companies. The petition may be decided on merits. 8. The Authorized Signatories of the Transferee Company and Transferor Company have filed reply Affidavit dated 18th December, 2018 and 19th December 2018 respectively, in furnishing response to the affidavits by ROC, as follows:- (i) Para 32(1): the Scheme will be effective from Appointed Date which is 01.02.2018. The Petitioner undertakes to comply with provisions of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (6) of the Companies Act, 2013, which states that the scheme shall clearly indicate an appointed date from which it shall be effective and the scheme shall be deemed to be effective from such date and not at a date subsequent to the appointed date, Clause No. 1.4 of the present scheme needs either deletion or modification. (ii) It is observed in the Balance Sheet as at 31.03.2016 and 31.03.2017 that the Transferor Company has certain related party transactions and requires to comply with section 188 of the Companies Act, 2013. (iii) In Clause No. 16 of the Scheme it was mentioned that the transferee company is not required to pay any fees/ stamp duty on the clubbing of the authorised capital of the transferor company with the transferee company. In this regard, it is to state that as per Section 232(3)(i) of the Companies Act, 2013 transferee company has to pay the differential fee if any after setting off the fee already paid by the transferor company on it, and transferee company shall give an undertaking accordingly to this effect before the Hon'ble Tribunal. (iv) As per the Independent Auditor's report for the year 2016-17 of the Transferor Company has disputed du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this respect. d) Para 3(d):-the various tax dues payable to tax authority for assessment years 2012-13 and 2015-16 has been disputed before various Tax Authorities/Tribunal/Court, in case Tax Authorities/Tribunal/C0L11t order that the tax is payable by the Transferor Company, the Petitioner Company undertakes to pay the tax dues on behalf of Transferor Company after adjudication as per the provisions of Income Tax Act, 19610 e) Para 3(e):- the Petitioner undertakes to comply with FEMA and RBI regulations at the time of the issue of shares to the shareholders of the Transferor Company under the scheme. That the Transferee Company also undertakes to increase the authorised share capital, as may be required, so as to issue shares to the shareholders of transferor Company once the scheme is approved by the National Company Law Tribunal. 11. The Official Liquidator attached to the High Court of Karnataka has filed report OLR No. 137/2018 dated 01st January, 2019 making the following submissions: i. That the Applicants, M/S Ad2pro Media Solutions Private Limited (Transferor Company) has filed a petition u/s 230 to 232 of the Companies Act, 2013 before this Hon'ble Tribunal see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Note 29 and Note 30 of the respective year's audited financials, were made at arm's length in the ordinary course of business and board resolutions were passed to authorise all related party transactions. That the statutory compliances required under the Companies Act, 2013 were complied with. That the Chartered Accountant has issued a certificate for this purpose. b) That the adjudications pending before the Tax Authorities as on 01 April 2018 are as follows: Nature of Statute Forum where dispute is pending Period to which the amount relates Amount (Rs) Deposited in protest (Rs) Service Tax Customs, Excise and Service Tax Appellate Tribunal FY 2012-13 to FY 2016-17 relating to various quarters 86,81,439 Nil Income Tax Commissioner of Income Tax Appeals FY 2010-11 to FY2016-17 19,88,24,680 1,75,00,000 Total 20,75,06,119 1,75,00,000 That post amalgamation, as mentioned in Clause 12.7 of the scheme all the tax assessment proceedings and appeals of whatsoever nature shall be continued with the Transferee Company and any dues payable after adjudication including appeals thereafter shall be paid by the Ad2pro Global Creative Solutions Private Limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er should not be construed as an order in any way granting exemption from payment of Stamp Duty, taxes or any other charges, if any, and payment in accordance with law or in respect to any permission/compliance with any other requirement which may be specially required under any law; and (3) The Whole of the property, rights and powers of the Transferor Company be transferred without further act or deed to the Transferee Company and accordingly the same shall pursuant to section 232 of the Companies Act, 2013, be transferred to and vest in the transferee company for all the state and interest of the Petitioner/Transferor Company therein but subject nevertheless to all the charges now affecting the same; and (4) All the liabilities including taxes and charges, if any, and duties of the Transferor Company be transferred without further act or deed to the Transferee Company and accordingly the same shall pursuant to section 232 of the Companies Act, 2013, be transferred to and become the liabilities and duties of the Transferee Company; and (5) The tax implications, if any, arising out of the scheme is subject to final decision of Concerned Tax Authorities and the decision of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to that extent. e. Transferee Company shall increase its authorised share capital, in order to issue shares to the shareholders of the Transferor Company and to pay differential fee/duty in accordance with law. (11) The Applicant Companies will ensure compliance of their Affidavits dated 1 8th December, 2018, 19th December 2018 and January 2019; and will submit Quarterly/Annual Status of compliances through an Affidavit by Managing Director/Director of the Company along with CA/ICWA/CS Certificate till the compliance is ensured. (12) The Registrar of Companies, Karnataka shall ensure that the stamp duty as fixed by the Inspector General of Registration and Commissioner of Stamps is paid within stipulated time under relevant provisions of law; and (13) The appointed date shall be I St February, 2018; and (14) The Transferor Company or its Authorized Signatories are directed that after the completion of the process of Amalgamation to handover the possession of the Books of Accounts and other relevant documents of the Transferor Company to the Transferee Company for the purpose of section 239 of the Companies Act, 2013. (15) Any person shall be at the liberty to apply to the T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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