9911796707
TMI Blog2020 (9) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... Companies Act, 2013( for brevity 'the Act') read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 (for brevity 'the Rules') and the said Scheme is also annexed as Annexure "9" at pages 190 to 225 to the typed set filed along with the Company Petition. 2. The Registered Office of all the Petitioner Companies is situated in Chennai and falls within the territorial jurisdiction of National Company Law Tribunal, Chennai 3. The Composite Scheme of Arrangement which is contemplated between the Companies involves four steps, which is; (a) Amalgamation of Transferor Company - 1 and Transferor Company - 2 with the Transferee Company; (Part - 3 and Part - 4 of the Scheme) (b) Demerger of Investment Division, Consultancy Division and capital Market Training Division (post -amalgamation) of Demerged Company and transferring / vesting of the same into Resulting Company; (Part - 5 of the Scheme) (c) Upon Scheme coming into effect, the name of the Transferee Company i.e. M/s. Madras Enterprises Limited will be renamed / changed into M/s. MSE Financial Services Limited; and (d) Upon the Scheme coming into effect, the name of the Resulting Company i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by this Tribunal and in proof of the same acknowledgements/receipts have also been enclosed. 7. The Regional Director, (for brevity 'RD') Chennai to whom the notice was issued in the First Motion itself, has filed his Report on 31.10.2019 before this Tribunal and has made has two observations in relation to the Scheme contemplated between the Petitioner Companies and the relevant observations made by the RD are extracted hereunder; "9. It is submitted that Clause 5.26 of Part 5 of the scheme has stated that the authorized capital of the 1st and 2nd applicant companies will be merged with the authorized capital of the 3rd applicant company. The 3rd applicant company may be directed to file the amended MOA and AOA with RoC, Chennai for its records. In this regard, the 3rd applicant Company is required to pay the differential fees for the enhanced authorized capital post amalgamation after taking credit for the fees already paid by the 1st and 2nd applicant companies as mandated under Section 232 (3)(i) of the Companies Act, 2013. Suitable directions may be incorporated in the order by the Hon'ble Tribunal. 10. It is submitted that clause 3.15(d) and 4.15(d) of Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -. This SLP has been admitted and the appeal hearing is pending before the Hon'ble Supreme Court. (c) The Department of Central Excise (Service Tax) has raised a net demand of Rs. 21,72,739/- including penalty of Rs. 14,06,647/- in January 2012 for various issues of Service Tax. The Company has filed an appeal to Commissioner of Central Excise (Appeals), Chennai, which was rejected and an order was issued for payment of Service Tax including penalty as stated herein above and the Company had provided for the same in its statement of profit and loss account for the year. The Company had paid an amount of Rs. 13,96,647/- towards Service Tax and partial penalty and has filed an appeal in Tribunal. (d) The Income Tax Department for the AY 2010 - 2011 had made certain adjustments in the assessment order, resulting in a demand of Rs. 1,56,520/-. The Company has filed revision petitions with the Assessing Officer. The Company had been advised a fair chance of succeeding their petitions and hence no provision for the same has been made in the accounts of the year. (iii) As per audited financial statements, the Chartered Accountants observed that under note No. 27, there was an in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the outstanding demand and the facts / remarks or the status of the appeal for each assessment year are tabulated and provided as below; S No Assessment Year Tax Demand Amount (Rs.) Fact / Remark 1 2001 - 02 59,110/- Hon'ble Madras High Court held that depreciation was allowable on the cost of stock exchange membership card. Actually, the Company is entitled for a refund of Rs. 84,392/- after considering the above said depreciation, request was made vide letter dated 2.11.2012 addressed to the Asst. Commissioner of Income Tax, to pass orders based on the said order of the Hon'ble Madras High Court. No liability will arise if they pass orders based on the order of Hon'ble Madras High Court. 2 2002 - 03 3,14,052/- Hon'ble Madras High Court held that depreciation was allowable on the cost of stock exchange membership card. Request made vide letter dated 02.11.2012 addressed to the Asst. Commissioner of Income Tax, to pass orders based on the said order of the Hon'ble Madras High Court. No liability will arise if they pass orders based on the order of Hon'ble Madras High Court. 3 2004 - 05 656/- Remitted on 27.05.2005 4 2006 - 07 14,888/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal (AT) Nos. 113 and 114 of 2019, wherein the Hon'ble NCLAT has held that in view of the decision of the Hon'ble Supreme Court in Department of Income Tax -Vs- Vodafone Essar Gujarat Ltd. (2015) 16 SCC 629 wherein liberty was given to the Income tax Department to take out appropriate proceedings for recovery of any tax statutorily due from transferor or transferee company or any other person liable to pay such tax due, the scheme of arrangement as approved by NCLT was not be interfered with. 15. The Tribunal is of the view that since the Transferee Company is not being dissolved and the Scheme provides the savings in relation to the liabilities as well, all the Tax authorities are entitled to proceed against the Transferee Company in accordance with law, if any amount is found due and payable. The Hon'ble NCLAT also in the Ad2Pro Creative Solutions Private Limited -Vs- Regional Director (SER) MCA, in Company Appeal (AT) No. 98 of 2019, in relation to the dues of the Income Tax has held in para 7 as follows; "7..........Admittedly, proceedings are pending in appeal before ITAT and depending upon the outcome of such proceedings, the Transferee Company has undertake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2013. 18. The Petitioner companies have submitted that no investigation proceedings are pending against them under the provisions of the Companies Act, 1956 or the Companies Act, 2013 and no proceedings are pending against the petitioner companies under Section 235 to 251 of the Companies Act, 2013 or under relevant provision of the Companies Act, 1956. 19. In view of absence of any other objections having been placed on record before this Tribunal and since all the requisite statutory compliances having been fulfilled, this Tribunal, sanctions the Composite Scheme of Arrangement, annexed as Annexure "9" with the Company Petition as well as the prayer made therein. 20. Notwithstanding the above, if there is any deficiency found or, violation committed qua any enactment, statutory rule or regulation, the sanction granted by this Tribunal will not come in the way of action being taken, albeit, in accordance with law, against the concerned persons, directors and officials of the petitioners. 21. While approving the Scheme as above, it is clarified that this order should not be construed as an order in any way granting exemption from payment of stamp duty, taxes or any other c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Resulting Company; and (ix) Any proceedings pending by or against the Demerged undertaking be continued against the Demerged Company or the Resulting Company, as the case may be, as per provisions contemplated in the SCHEME. (x) That the Resulting Company do without further application allot to such members of the Demerged Company, as have not given such notice of dissent, as is required by 5.17 of the SCHEME herein, the shares in the Resulting Company to which they are entitled under the said SCHEME. (xi) All the services of all the Employees of the Demerged Company employed in the Demerged Undertaking shall stand transferred to the Resulting Company on the same terms and conditions at which these employees are engaged by the Demerged Company without any interruption of service as a result of transfer; and (xii) That the Appointed date for the Scheme is 1st April 2019 (xiii) That the name of the Transferee / Demerged Company viz. M/s. Madras Enterprises Limited is hereby changed to M/s. MSE Financial Services Limited and the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
