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TMI Blog2021 (5) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... Regional Director, (for brevity 'RD') Chennai to whom notice was issued has filed his Report before this Tribunal on 09.09.2020, eventhough not represented before this Tribunal has stated that Clause 9 of Part II of the Scheme provide for protection of the interest of the employees/staff/workmen of the Transferor Company. It is also stated that as per the report of Registrar of Companies, Chennai, both the Transferor and Transferee Companies are regular in filing the statutory returns and there is no prosecution filed, no complaints pending and no inspection/investigation has been ordered/pending in respect of both the companies. Thus, the RD after examining the Scheme, except for the above observation, has decided not to make any objection to the Scheme. In relation to the observation as made by the RD, the Transferee Company has filed an Affidavit by way of email to the Registry of this Tribunal on 14.09.2020 and it is stated in the said Affidavit that the Transferee Company has undertaken to file the revised Memorandum of Association/Articles of Association factoring the merger of the authorized capital with the Registrar of Companies and has also undertaken to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner Companies and the said Scheme is also commonly annexed as Annexure A4 to the typed set filed along with the Petitions. 2. From the records, it is seen that in the First Motion Application filed before this Tribunal vide CA/1319 1320/CAA/2019 wherein it was represented that there are 7 Equity Shareholders, 1 Unsecured Creditor and no Secured Creditor in relation to the Transferor Company and 5 Equity Shareholders, 1 Secured Creditors and 23 Unsecured Creditors in relation to the Transferee Company and except in relation to Unsecured Creditors of the Transferee Company, based on the consent Affidavits obtained in relation to others, dispensation was sought from holding the meeting of the Equity Shareholders and Unsecured Creditors of the Transferor Company and Equity Shareholders and Secured Creditor of the Transferee Company and for holding of the meeting of the Unsecured Creditors of the Transferee Company. Based on such application moved under Sections 230-232 of the Companies Act, 2013, this Tribunal vide its order dated 20.01.2020 dispensed with the meeting of the Equity Shareholders and Unsecured Creditors of the Transferor Company and Equity Shareholders and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of Part II of the Scheme provide for protection of the interest of the employees/staff/workmen of the Transferor Company. It is also stated that as per the report of Registrar of Companies, Chennai, both the Transferor and Transferee Companies are regular in filing the statutory returns and there is no prosecution filed, no complaints pending and no inspection/investigation has been ordered/pending in respect of both the companies. However RD in para 9 and 10 of his Affidavit has made the following observation; 9. It is submitted that as per clause 12 of Part II of the Scheme has stated that the Authorized Capital of the Transferor Company will be merged with the Authorized Capital of the Transferee Company. The Transferee Company may be directed to file the amended MOA and AOA with the RoC, Chennai for its records. In the said clause of the scheme the companies have stated that the transferee company would not be required to pay any further fee or stamp duty for the increase in the Authorized capital. This is contrary to the provisions of clause (i) to Sub - section (3) of Section 232 of the Companies Act, 2013 which mandates the transferee company to pay the fees, if any, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive (and not absolute) equity valuation of the Companies for the proposed amalgamation based on the various methodologies mentioned in the valuation report. The Chartered Accountants are of the view that based on the profile of the Transferor and Transferee Companies and the shareholding pattern (being closely held), the Chartered Accountants are of the prima facie view that the basis of valuation appears to be reasonable. 10. From the above observations made by the Chartered Accountants, the Official Liquidator sought to take on record and consider the report of the Chartered Accountant and has also sought to fix the remunerations payable to the Auditor who has investigated into the affairs of the Transferor Company. In this regard, this Tribunal hereby directs the Transferor Company to pay a sum of ₹ 25,000/- (Rupees Twenty Five Thousand Only) to the Official Liquidator for the payment of fees payable towards the Auditor who has investigated into the affairs of the Transferor Company. 11. In relation to the Income Tax Department it is seen that a memo was filed on behalf of the Deputy Commissioner of Income Tax Corporate Circle - 1(1), Chennai - 34, wherein i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by the Transferee Company and also not considered the various submissions made by the Transferee Company over the said period of time. 14. In any case, it is to be noted that this Tribunal is not shutting out the legitimate interest of the Income Tax authorities to recover the lawful dues payable by the Transferee Companies and the rights of the Tax authorities remain intact and they can 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 undertaken to satisfy all demands emanating from and raised by the competent tax authorities. The Scheme having been approved and sanctioned and the same being in consonance with law, no fault can be found with the Transferee's undertaking to satisfy all demands raised by the tax authorities as finally determined by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Scheme of Amalgamation, annexed as Annexure A4 with the Company Petitions 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 charges, if any payment is due or required in accordance with law or in respect to any permission/compliance with any other requirement which may be specifically required under any law. THIS TRIBUNAL DO FURTHER ORDER: (i) That all propert ..... X X X X Extracts X X X X X X X X Extracts X X X X
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