9911796707
TMI Blog2020 (10) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... nd shall undertake to discharge the liabilities, obligations if any arises and accrues in future upon crystallization of the liabilities and / or obligations. Thus, this Tribunal sanctions the Scheme and allows the prayer and the Scheme is hereby sanctioned and shall be binding on respective shareholders and creditors. Petition allowed. - CP(CAA) No. 126/NCLT/AHM/2018 in CA(CAA) No. 65/NCLT/AHM/2018 - - - Dated:- 29-5-2020 - Harihar Prakash Chaturvedi, Member (J) And Prasanta Kumar Mohanty, Member (T) For the Appellant/Respondent: Pavan S. Godiawala, Aadhar Sharma, Soumya Sharma, Naishal J. Mody, Nachiket Mehta, Monaal J. Davawala and Maithili Mehta, Advocate ORDER PRASANTA KUMAR MOHANTY, MEMBER (T) 1. The instant joint petition, under section 230 to 232 of the Companies Act, 2013, is filed by the Petitioner Companies seeking sanction of a Scheme of Amalgamation [ Scheme for short] of Swati Commercial Private Limited (the Petitioner Transferor Company) with Vyanktesh Securities Pvt. Limited (the Petitioner Transferee Company) and their respective shareholders with all its assets and liabilities together with all rights and obligations as more particu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than ten days before the date fixed for hearing calling for objections, if any, on or before the date of hearing. The Petitioner Companies were also directed to issue individual notices to (i) the Central Government through the Regional Director, North West Region (ii) Registrar of Companies, (iii) concerned Income Tax Authorities and (iv) Official Liquidator (in case of the Petitioner Transferor Company) asking them to file their representations, if any, on the proposed Scheme of Arrangement. 7. The Petitioner Companies filed affidavit in respect of publications made in the newspapers as well as proof of service of notices upon the aforesaid statutory authorities. In response to such individual notices and the publication made in newspapers, no objection is received from any of the stakeholders. 8. In response to the representation made by the Official Liquidator, the Petitioner Transferor Company has not submitted their replies and explanations vide affidavit dated 7th February, 2019. 8.1 The Official Liquidator at point No. 15 (i) of his report has stated that as per AS-15, employee benefits are to be done on accrual basis but in the absence of actual number of employee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is report stated that the Asst comm. of Income Tax gave information to the Ld. Official Liquidator that Petitioner Companies belong to the Bangur Group and assessment proceedings of various assessment years are pending or contemplated and it would not be in the interest of revenue if these Petitioner Companies are allowed to be amalgamated at least before completion of assessments and crystallization of issues and the Official Liquidator seeks clarification on this issue. In response to the said clarification, the Petitioner Transferor Company, in the above mentioned affidavit has clarified that in both the Petitioner Companies survey proceedings under 133-A are conducted by Income Tax Department while re-assessment proceedings under section 147 read with section 143(3) of the Income Tax Act, 1961 for the AY 2011-12 and 2012-13 are conducted by the Income Tax Department. Thereafter, an assessment order for the said assessment years have been passed and a demand notice issued on the Petitioner Transferor Company on 28.12.2018 wherein No Demand is raised for AY 2011-12 and a demand of ₹ 5,33,140/- is raised for AY 2012-13. Likewise in the case of Petitioner Transferee Company, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court and in cases where reassessment has been opened against any assesse, no specific time frame can be determined and it is submitted at paragraph 14 and 15 that, ACIT (Central) Ujjain, writing to the Ld. Official Liquidator alleged that transactions entered by Petitioner Transferor Company with the paper companies in the form of share capital and premium and in response to the same bald assertions, it is categorically submitted that it was only the apprehension of the ACIT that such transactions have been entered by the Petitioner Transferor Company whereas neither such allegations of the ACIT have been proved in any assessment orders passed by the Department nor there is any liability raised against the Petitioner Transferor Company. Hence, such allegations are without any substance. It is further submitted that Petitioner Companies are juristic person and comply with the provisions of the Companies Act from time to time and paying tax and having tax paying identity and the Department has accepted the Petitioner as an Assesse and accepted Income Tax every year since incorporation of the Petitioner Companies. It is submitted with immense respect that there is no concep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner Transferee Company with the same terms and conditions as if, the said liabilities originally pertain to the Petitioner Transferor Company and the Petitioner Transferee Company undertakes full responsibility to co-operate and extend full support to the Income Tax Department in relation to the survey and reassessment proceedings against the Petitioner Transferor Company and also the Petitioner Transferor Company undertakes full responsibility to preserve all the books, registers, papers, vouchers etc. pertaining to the Petitioner Transferor Company for future need and reference by the Income Tax Department and in such regard, the affidavit also obtained of Mr. Anand Bangur as a member of the Bangur Group of Companies, to show the bonafide in the present matter and such affidavit is annexed as Annexure-R-2 to the affidavit clarifying the queries as raised by the statutory authority. The Petitioner Transferor Company has placed on record, the independent CA Certificate that, sanctioning of the Scheme would not be prejudicial to the interests of any of the parties and there would not be any loss to the revenue and such certificate is annexed as Annexure R-3 to the said affid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional affidavit submitted that, to give effect to the Scheme, the Petitioner Transferee Company shall increase its authorized capital by such amount and by paying such registration fees, stamp duty as applicable on such increased amount of authorized capital as it is sufficient to comply with the said Scheme before the allotment of such shares and undertakes full responsibility to comply with the provisions of section 61, 66 read with section 177 of the Companies Act, 2013 in this regard. In regard to the query relating to filing of Annual Return and Balance Sheet for the year ended 31.3.2018 and in response, the Petitioner Transferor Company has already filed the Annual Return and balance sheet on the web portal of MCA and copy of the e-form is annexed as Annexure R-4 and R-5 respectively of the said affidavit. In response to the query at paragraph 2(f) regarding service of notice to Income Tax Department, it is submitted that ROC M.P. has informed the Ld. Regional Director that Income Tax search and survey proceedings u/s. 133-A of the Act have been conducted upon the Petitioner and its key officials and in response to the above observation, it is submitted that, the notices u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company does not get diluted even remotely and become the liabilities and obligations of the Petitioner Transferee Company and further this Tribunal directs that Petitioner Companies shall co-operate with the authorities in the pending proceedings and shall undertake to discharge the liabilities, obligations if any arises and accrues in future upon crystallization of the liabilities and / or obligations. Thus, this Tribunal sanctions the Scheme and allows the prayer as prayed in CP(CAA) No. 126 of 2018 and the Scheme is hereby sanctioned and shall be binding on respective shareholders and creditors. 12. In the result, the present company petition is allowed. The proposed Scheme of amalgamation is hereby sanctioned and approved. It is also declared Scheme shall be binding on the Petitioner Companies and their respective shareholders and creditors and all concerned under the Scheme. It is declared that the Petitioner Transferor Company is dissolved without winding up. 13. The Petitioner Transferee Company is hereby directed to preserve the books of accounts, papers and records of the Petitioner Transferor Company and not to dispose of the same without prior permission of the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
