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TMI Blog2020 (10) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... e National Company Law Tribunal Rules, 2016, for the purpose of the approval of the Scheme of Amalgamation. The copy of the Scheme has been placed on record. 2. A perusal of the petition revels that initially the First Motion application seeking directions for convening/dispensing with the meetings of Shareholders and Creditors was filed before this bench and based on such joint application moved under Sections 230-232 of the Companies Act, 2013, this Tribunal vide its first motion order issued directions with respect to the same. On 01.11.2019 the Petitioners were directed to carry out publication in the newspapers English Daily 'Business Standard' (Delhi Edition) as well as in Hindi Daily 'Jansatta' (Delhi Edition). In ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the proposed Scheme from any person/party interested in the scheme in any manner and that the affairs of the Petitioner Companies do not appear to have been conducted in a manner prejudicial to the interest of its members, creditors or public interest. 6. The department of Income tax has filed its response dated 06.09. 2017. On perusal of the above representation of the Income tax as also stressed at the time of oral hearing by the representative of the Income tax, following observations come to the fore: * Income Tax Department in Para 3 (i) to (iii) of his Report has pointed out that the Valuation report and the Share Exchange Ratio has been worked out by taking fair value of shares on the basis of Assets Approach as per the Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.2018 being the latest Audited Balance Sheet available at the time of such valuation. c. The appointed date is merely a cut-off date fixed for the purpose of giving effect to the scheme of amalgamation in the Books of Accounts of the concerned companies. d. There is no linkage or relevance between the date of share valuation and the appointed date. e. Every scheme of the amalgamation, if approved by the Hon 'ble Tribunal, becomes effective only when the copy of Tribunal order is filed with the concerned Registrar of Companies. However, a cut-off date/appointed date is fixed to give effect to the scheme of amalgamation in the Books of Accounts of the Transferor and the Transferee Companies. The relevance of the Appointed date is l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessment order dated 22.08.2017 is enclosed herewith and marked as Annexure 4 for perusal of this Hon'ble Tribunal. h. That all the Transferor Companies are to be amalgamated with the Transferee Company. We, further say that pursuant to the Scheme all the assets along with the liabilities including all the debts, liabilities, duties and obligations incurred by the Transferor Companies will be transferred to the Transferor Companies. Further, any legal proceedings and order enforceable by or against the Transferor Companies pending as on the effective date, shall abate or be discontinued or any way prejudicially affected by reason of the transfer of the undertaking of the Transferor Companies or of anything contained in this Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erfered with by Tribunal for the reason that it is not a part of judicial function to examine entrepreneurial activities and their commercial decisions. It is well settled that the Tribunal evaluating the Scheme of which sanction is sought under Section 230-232 of the Companies Act of 2013 will not ordinarily interfere with the corporate decisions of companies approved by shareholders and creditors. 13. In the case of Hindustan Lever Employees Union V. Hindustan Lever Limited (1995) 5 SCC 491 the three judges Bench of Hon'ble Supreme Court held that: 'A company court does not exercise appellate jurisdiction over a scheme and its jurisdiction is limited to ascertaining fairness, justness and reasonableness of the Scheme and to ens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving the Scheme as above, we further clarify that this order 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 specifically required under any law. 21. THIS TRIBUNAL DO FURTHER ORDER 1. That all the Transferor Companies shall stand dissolved without following the process of winding-up; and 2. That all the property, rights and powers of all the Transferor Companies, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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