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TMI Blog2020 (5) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition disposed off. - C. P. (CAA) No. 725/KB/2018 connected with C. A. (CAA) No. 197/KB/2018. - - - Dated:- 29-10-2019 - Jinan (K. R.) Judicial Member For the Petitioners : Avik Chandhuri , Channa Keshva , Assistant Director (Regional Director, Eastern Region). ORDER JINAN (K. R.) (JUDICIAL MEMBER). - 1. This is a joint petition for sanctioning of the scheme of amalgamation of M/s. Swadha Properties P. Ltd., and M/s. Bluejay Airlines P. Ltd. (hereinafter referred to as transferor companies ) with M/s. Saharsh Yarn P. Ltd. (hereinafter referred to as transferee company ), under sections 230 to 232 of the Companies Act, 2013. 2. The object of this petition is to obtain sanction of the Tribunal to the scheme of amalgamation of M/s. Swadha Properties P. Ltd., and M/s. Blue-jay Airlines P. Ltd. ( transferor companies ) hereinafter referred to as transferee company ) whereby and whereunder the entire undertakings of the transferor companies as a going concern together with all the assets and liabilities relating thereto is proposed to be transferred to and be vested in the transferee company on the terms and conditions and in the manner fully stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said board resolution of all the petitioner-companies are annexed with the petition and the same are collectively marked as annexure A8. 6. It is further stated in the petition that the petitioner-companies have received the certificates from the companies auditors in regard to the effect that the accounting treatment, if any, proposed in the scheme of compromise or arrangement is in confirmed with the accounting standard prescribed under section 133 of the Companies Act, 2013. 7. It is further stated in the petition that the assets of the petitioner-companies are sufficient to meet all their liabilities and the said scheme of amalgamation will not adversely affect in any manner whatsoever. 8. There are no proceedings pending under sections 210, 213, 216, 219, 220, 222 to 225 of the Companies Act, 2013 against any of the petitioner-companies. 9. Further, the petitioner-companies have filed affidavit of service affirmed on August 6, 2019 in proof of publication and service of notice to the statutory authorities as directed by the hon'ble Tribunal in C. P. (CAA) No. 725/KB/2018 connected with C. A. (CAA) No. 197/KB/2018 which is on record. 10. Sri Debasish Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 2(e) : It is submitted that in respect of transferor companies, Bluejay Air lines P. Ltd., and Swadha Properties P. Ltd., it is stated in the auditors' report for 2016-17 that the company has obtained registration from Reserve Bank of India. But no mention is made about the registration number, etc. In the auditor's report or in the board's report. The company should submit an affidavit in this regard to enable this deponent to examine the matter. In paragraph 2(f) : It is submitted in terms of paragraph 13 of Non-Banking Financial (Reserve Bank) Directions, 2007 it is provided that every non-banking financial company shall append to its balance-sheet prescribed under the Companies Act, the particulars in the schedule as set out in Annexure to the directions. But no such particulars was provided in the financial statement of the transferor companies. The financial statements are therefore incomplete and violate the Regulations of RBI and hence this deponent is not in a position of giving views about the state of affairs of the companies as exhibited in such financial statements, is therefore not in order. The companies should first seek approval of hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory returns. However, the inquiry is under process against the M/s. Bluejay Airlines P. Ltd. (transferor company). In paragraph 2(b) : It is submitted that clause 12(iv) of the scheme is not commensurate with the provision of section 230(10) of the Companies Act, 2013 since nothing has been stated that in what manner the provision of section 68 of the Act is complied in respect of payment of money to shareholders of the transferor companies against the fractional share entitlement. The scheme is incomplete and ambiguous. In paragraph 2(c) : It is submitted in clause 15.1, it is not stated that what accounting treatment shall be given in the books of the transferee company to the difference between assets acquired and shares to be issued in consideration thereof. It is only cryptically stated that accounting treatment shall be in accordance with the accounting standard. The scheme is incomplete and ambiguous and hence not in order. In paragraph 2(d) : It is submitted that the scheme, in clause 15, does not clearly provide, as it appears, that whether any fee payable, in terms of the provisions of section 232(3)(i) shall be paid or not. The applicant-company s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... work in progress) was not provided in the financial statement for 2016-17 and schedule 6 (non-current investments) was not provided in the financial statements for 2015-16, thus making the financial statement for the two years are incomplete and violative of the provisions of the Companies Act, 2013. Hence, this deponent is not in a position of giving views about the state of affairs of the companies as exhibited in such financial statements. The company should first seek approval of the hon'ble Tribunal to revise the financial statement under section 131 of the Companies Act, 2013 and then file the revised financial statements with the Registrar of Companies in prescribed manner. In paragraph 2(h) : It is submitted that as per instructions of the Ministry of Corporate Affairs, New Delhi, a copy of the scheme was forwarded to the Income-tax Department on May 1, 2018 with a request to forward their comments/ observations/objections, if any, on the proposed scheme of amalgamation. However, the said authority vide letter dated May 15, 2018 forwarded their report in respect of M/s. Saharsh Yarn P. Ltd. (transferee company) wherein it is stated that outstanding demand of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is enclosed herewith and marked as annexure B. In paragraph 9 : We state and submit that the instant supplementary affidavit hereof may be treated as a part of the petition being Company Petition No. C. P. (CAA) No. 725/KB/2018 connected with C. A. (CAA) No. 197/KB/2018. 13. Further, Sri Debasish Bandopadhyay, Regional Director, Eastern Region, Ministry of Corporate Affairs have filed affidavit duly affirmed on September 19, 2019 wherein he has made the following observations : In paragraph 2(a) : That as per paragraph 2 of rejoinder dated July 29, 2019 in respect of 2(b) regarding the fractional entitlement and it is reported that the petitioner-companies have given their consent to alter/modify clause 12(iv) of the scheme, inter alia, stated that no fractional certificates shall be issued by the transferee company and the fractional share entitlements if any, arising out of the allotment shares as aforesaid, shall be rounded off to the nearest complete share . In paragraph 2(b) : That as per paragraph 3 of rejoinder dated July 29, 2019 in respect of 2(c) regarding the accounting treatment and it is reported that the petitioner-company declare that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , reference in response to the advertisement, as mentioned in Form NCLT 3A under the aforesaid rule and also the petitioner has not received any objection from any person regarding sanctioned of the scheme of amalgamation. 15. The Official Liquidator, High Court, Calcutta has submitted, his report dated July 22, 2019 stating that the affairs of the aforesaid petitioner-companies do not appear to have been conducted in a manner prejudicial to the interest of its members or to public interest as per the provisions of the Companies Act, 1956/the Companies Act, 2013 whichever is applicable. 16. Heard learned counsel for the petitioners and authorized representative of the Regional Director, Eastern Region, Ministry of Corporate Affairs at Kolkata and perused the approvals accorded by the members and creditors of petitioner-companies to the proposed scheme and the affidavits filed by the Regional Director, Eastern Region, Ministry of Corporate Affairs ; the report of the official liquidator and also perusing the supplementary affidavit filed by the petitioner-companies to the objection of the Income-tax Department through Regional Director, Eastern Region Ministry of Corporate Aff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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