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TMI Blog2020 (11) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... companies, their shareholders, secured creditors, unsecured creditors, employees and all other relevant parties, etc. 2. Brief facts of the case, as mentioned in the company petition, which are relevant to the issue in question, are as follows : (1) M/s. Health and Glow Retailing P. Ltd. (hereinafter referred to as "transferor company") was incorporated as a private limited company on December 12, 1996 with the Registrar of Companies, Tamil Nadu under the Companies Act, 1956 bearing the name of "RPG Guardian P. Ltd." and subsequently it was converted into public company with effect from December 4, 1997 and again reconverted into a private company with effect from December 6, 2001. Subsequently, on March 2, 2007 a fresh certificate was issued by the Registrar of Companies, Tamil Nadu by which its name was changed from "RPG Guardian P. Ltd." to "Health and Glow Retailing P. Ltd.". Pursuant to shifting of the registered office to the jurisdiction of the Registrar of Companies, Karnataka, the Registrar of Companies has issued a fresh certificate dated January 31, 2013 bearing CIN : U52599KA1996PTC067554. Its registered office is presently situated at Site No. 32/5, 2nd Floor, Ganap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hosur Main Road, NGR Layout, Roopena Agrahara, Bangalore-560 068. Its authorised share capital is Rs. 309,00,00,000 divided into 22,30,00,000 equity shares of Rs. 10 each and 8,60,00,000 preference shares of Rs. 10 each and its issued, subscribed and paid-up share capital is Rs. 307,06,13,240 divided into 22,10,61,324 equity shares of Rs. 10 each and 8,60,00,000 preference shares of Rs. 10 each. Its main objects, inter alia, are to develop and conduct retail business in India and outside India and having regard to the laws applicable in respective countries or in any other relevant jurisdiction, the company will carry on health and beauty stores, etc. (4) The board of directors of the transferee company at its meeting held on May 7, 2019, have approved and adopted the scheme of amalgamation and, inter alia, resolved as under : "Resolved that, pursuant to the provisions of sections 230 to 232 of the Companies Act, 2013, rules and regulations made thereunder, (hereinafter referred to as 'the Act'), as amended from time to time, or other applicable provisions, if any, of the Act, read with the relevant provisions of memorandum of association and articles of association of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsferor whose names appear in the register of the members on the record date (or to such of their heirs, executors, administers or other legal representatives or other successors in title as may be recognised by the board of directors of the transferee) in consideration of amalgamation of the transferor in the following proportion : (a) 210 fully paid-up equity shares of the transferee of Rs. 10 each to be issued to the shareholders of transferor for every 100 fully paid-up equity shares of the transferor of Rs. 10 each held by such shareholder. (b) 100 fully paid-up preference shares of the transferee of Rs. 10 each to be issued to the shareholders of transferor for every 100 fully paid- up preference shares of the transferor of Rs. 10 each held by such share holders. (8) It is stated that from the effective date, all staff and employees, if any, who are in employment of the transferor on the date immediately pre ceding the effective date, shall be deemed on and from the appointed date, to have become staff and employees of the transferee without any break or interruption in their service and on the basis of continuity of service, and the terms and conditions of their employ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty about the acceptance of scheme. 5. The Registrar of Companies, Karnataka vide its report dated January 22, 2020 has, inter alia, pointed out the following observations : (1) Major equity and preference shares of the transferee company are held by the transferor company and the remaining preference shares of the transferor and the transferee companies are held by RR group and HMK group, viz., M/s. Hathway Investments P. Ltd., and M/s. DSP Investments P. Ltd., in the ratio of 50:50. (2) The transferee company shall comply with section 232(3)(i) of the Companies Act, 2013, and pay the difference fee, after setting of the fee already paid by the transferor company on their respective capital transferee company shall give an undertaking to that effect. (3) The transferee company has not appointed whole-time company secretary for the period of more than one year February 2, 2013 to February 23, 2014. Hence, the company may be directed to explain for not appointing company secretary for the above period and file adjudicating application. (4) The transferee company has certain dues towards Income-tax and sales tax for a total amount of Rs. 104.99 lakhs. (5) The transferee co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 90. However, rectification petition filed with Assessing Officer to correct the tax amount wrongly considered of Rs. 20.8 crore instead of Rs. 3 crore. Rs. 2,15,590 Nil Assessing Officer has not yet passed the rectification order. AY 2015-16 Appeal filed with CIT (Appeals), Chennai Rs. 34,32,260 Rs. 6,86,452 CIT (Appeals) yet to pass an order, case under progress However, it is understood from the Scheme that the above litigations will be taken over by the transferee company. Further, they have, inter alia, concluded in the said report in paragraph 17.7 that on scrutiny of books of account, papers, statutory registers and other related records of the company, we are of the opinion that the affairs of the company have not been conducted in a manner prejudicial to the interest of the members of the company or public interest as per section 232 of the Companies Act, 2013. And the official liquidator prays that suitable order(s) may be passed on the merits of the case subject to objection, if any, by other sectoral regulators. 8. The Competition Commission of India vide letter bearing No. N-20(9)/ NF-376/2019/CD/3536, dated December 23, 2019 has, inter alia, informed that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all companies indirectly and jointly held by the HMK group and RR group, and helps in streamlining operations, reducing overheads, administrative, and other expenditure and achieving operational rationalization, organizational efficiency and optimal utilization of resources in the interest of shareholders, etc. On a consideration of the facts of the case as mentioned in the preceding paragraphs, which are not elaborating here again to avoid duplication and repetition, we are satisfied that the procedure specified in sub- sections (1) and (2) of section 232 of the Companies Act, 2013 has been complied with, and hence the scheme of amalgamation, as approved by the boards of both the transferor company and the transferee company, is hereby sanctioned, as prayed, and in view whereof, this Tribunal passes the following further order : (1) The scheme of amalgamation, as contained in the present petition, is hereby sanctioned and the appointed date shall be January 1, 2019 ; (2) Sanctioning the scheme of amalgamation should not be construed as an order in any way granting exemption from payment of stamp duty, taxes or other charges, if any, and payment in accordance with law or in res ..... 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