9911796707
TMI Blog2020 (11) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial Member) And V. Nallsenapathy (Technical Member) For the Regional Director : Hemant Sethi instructed by Hemant Sethi And Co. for the petitioners. Ms. Rupa Sutar, Deputy Director, Office of the Regional Director, MCA (WR), Mumbai ORDER V. NALLASENAPATHY (TECHNICAL MEMBER).- 1. The sanction of the Tribunal is sought under sections 230 to 232 and other applicable provisions of the Companies Act, 2013 (the Act), to the scheme of amalgamation between Samrut Trading P. Ltd., and Essel World Leisure P. Ltd., and their respective shareholders. 2. The court was convened through video conference. Heard learned counsel for the petitioner-companies. No objector has come before this Tribunal to oppose the scheme and nor has any party controverted any of the averments made in the petition. 3. It is submitted by learned counsel for the petitioner-companies that petitioner-company No. 1 is engaged in trading in merchandise related articles related to amusement park, etc., and other amusement park related business activities and petitioner-company No. 2 is engaged in business to construct, run, take over, lease, manage amusement centers or parks of all the nature, hotels, theme parks, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the petitioner-company has also given necessary undertakings and clarification. Further the observations made by the Regional Director and the clarifications and undertakings given by the petitioner-companies are summarized in the table below : Sl. No. Paragraph(IV) Regional Director report/Observation August 24, 2020 Response of the petitioner-companies (a) In addition to compliance of AS-14 (IND AS-103) the transferee company shall pass such accounting entries which are necessary in connection with the scheme to comply with other applicable Accounting Standards such as AS-5 (Ind AS-8), etc. ; Apropos observation made in paragraph IV(a) of the report of the Regional Director, learned authorised representative for the petitioner-companies submits that the transferee company shall pass such accounting entries as may be necessary in connection with the scheme of merger to comply with Accounting Standards AS-14 and any other applicable accounting standards including AS-5 to the extent applicable. (b) As per Part-A-Definitions Clause 1(1.2 and 1.4) of the scheme. Apropos observation made in paragraph IV(b) of the report of the Regional Director, learned authorised represent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies was dispensed with in view of consent affidavit provided by all the equity shareholders of the petitioner-companies and accordingly the requirement of taking approval of shareholders by a meeting is not applicable. This Tribunal in its order delivered in C. A. (CAA) No. 1653/MB/2018 directed that the meetings of the secured creditors of the petitioner-companies and unsecured creditors of petitioner-company No. 1 were not required as there are no secured creditors and unsecured creditors in the petitioner-companies. Further, the requirement to convene meeting of unsecured creditors of petitioner-company No. 2 was dispensed with in view of consent affidavit provided for 90.44 per cent. of the total outstanding amount of the unsecured creditors of petitioner-company No. 2 and accordingly the requirement of taking approval of unsecured creditors by a meeting is not applicable. (d) The petitioner-company have to undertake to comply with section 232(3)(i) of the Companies Act, 2013, where the transferor company is dissolved, the fee, if any, paid by the transferor company on its authorised capital shall be set-off against any fees payable by the transferee company on its author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch authorities to deal with any of the issues arising after giving effect to the scheme and the petitioner-companies submit that any issues arising out of the scheme will be met and answered in accordance with the law. (g) As per Part-B Clause-13(13.1 and 13.2) of the scheme (combination of authorized capital). In this regard it is submitted that the same is subject to compliance with the provisions of section 13 and section 61 of the Companies Act, 2013 and other applicable provisions of the Act. Apropos observations made in paragraph IV(g) of the report of the Regional Director, the learned authorised representative for the petitioner-companies submits that the combination of authorized capital will be in compliance with the provisions of section 13 and section 61 of the Companies Act, 2013 and other applicable provisions of the Act. (h) The petitioner-company have to undertake to comply with section 232(3)(i) of the Companies Act, 2013, where the transferor company is dissolved, the fee, if any, paid by the transferor company on its authorised capital shall be set-off against any fees payable by the transferee company on its authorised capital subsequent to the amalgamation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hon'ble court decided this question in favour of the assessee by holding as under (page 352) : "Sub-section (5) of section 230 requires that a notice of the meeting under sub-section (3) of section 230 along with all the documents pertaining to the scheme, shall be sent to the Central Government, and statutory authorities such as the Income-tax Department, RBI, SEBI, RoC, etc., and such other sectoral regulators or authorities which are likely to be affected by the compromise or arrangement. The statutory authorities could raise objections within 30 days from the date of receipt of the notice, failing which, it would be presumed that they had no representation to make on the proposed schemes of compromise, arrangements and amalgamations. Similarly, rule 8(3) of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 provides that any representation made to the statutory authorities notified under section 230(5), shall be sent to the National Company Law Tribunal within a period of thirty days from the date of receipt of such notice, and a copy of such rep resentation shall simultaneously be sent to the concerned companies. In case no representation is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Company Law Tribunal, without any objection from the Department. Rules of procedure have been construed to be the handmaiden of justice. The purpose of assessment proceedings is to assess the tax liability of an assessee correctly in accordance with law. Section 170(1) of the Income-tax Act provides that the successor of an assessee shall be assessed in respect of the income of the previous year after the date of succession... Sub-section (1) of section 170 makes it clear that it is incumbent upon the Department to assess the total income of the successor in respect of the previous assessment year after the date of succession. In the present case, the predecessor companies/transferor companies have been succeeded by the appellants/transferee companies who have taken over their business along with all assets, liabilities, profits and losses, etc. In view of the provisions of section 170(1) of the Income-tax Act, the Department is required to assess the income of the appellants after taking into account the revised returns filed after amalgamation of the companies. In light of the aforesaid discussion, we find that the learned single judge had rightly allowed the wri ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
