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TMI Blog2021 (8) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... y 1), Silver Bells Investments Private Limited (Transferor Company 2), Tushar Impex Enterprises Limited (Transferor Company 3/Transferee Company 1), Red Rose Investments Private Limited (Transferor Company 4), Sun Flower Investments Private Limited (Transferor Company 5), Metro Leasing and Finance India Co. Limited (Transferee Company 2/ Transferor Company 6), Defodills Technico Private Limited (Transferor Company 7), Rohini Investments Private Limited, (Transferor Company 8), Indica Investments Limited (Transferee Company 3/ Transferor Company 9), Advitanand Holdings Private Limited (Transferor Company 10), Azeem Investments Private Limited (Transferor Company 11), Beatific Investments Private Limited (Transferor Company 12), Dream Securities Private Limited (Transferor Company 13), Rumy Chabra Investments Private Limited (Transferee Company 4), jointly described as 'Petitioner-Companies'; under sections 230-232 and other applicable provisions of the Companies Act, 2013 (for brevity the 'Act'), read with Companies (Compromises, Arrangements, Amalgamations) Rules 2016 (for brevity the 'Rules') for sanctioning the proposed Scheme of Amalgamation (for short the 'Scheme') annexed as A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Petitioner Companies are attached as Annexure C2, C3, D2, D3, E2, E3, F2, F3, G2, G3, F2, F3, I2, I3, J2, J3, K2, K3, L2, L3, M2, M3, N2, N3, O2, O3, P2 and P3 respectively to the second motion petition bearing CP(CAA) No. 19/Chd/Hry/2020. 9. The following directions were issued by this Tribunal vide Order dated 12.11.2020:- "4. The petition be listed for hearing on 12.01.2021. Notice of hearing be advertised in "Financial Express" (English) and "Jansatta" (Hindi) both Delhi/NCR Edition, not less than 10 days before the aforesaid date fixed for hearing. 5. Notice be also served upon the Objector(s) or their representatives as contemplated under sub-section (4) of Section 230 of the Act who may have made representation and who have desired to be heard in their representation along with a copy of the petition and the annexures filed therewith at least 15 days before the date fixed for hearing. It be specified in the notices that the objections, if any, to the Scheme contemplated by the authorities to whom notice has been given on or before the date of hearing fixed herein may be filed, failing which it will be considered that there is no objection to the approval of the Schem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome Tax, Chandigarh, Assessing Officers of each of the Petitioner Companies, Official Liquidator, attached to Punjab & Haryana High Court and Reserve Bank of India. The delivery acknowledgments, speed post receipts along with tracking reports of the notices sent to the above authorities has also been annexed to the said affidavits. 12. The petitioner-companies have also filed affidavits vide Diary No. 0355/2 01.03.2021 of Mr. Gurbaksh Rai and Mr. Anup Verma, Authorised Signatories of all the petitioner-companies stating that pursuant to the publication of notice of hearing in the newspapers on 22.12.2020, no objection to the Scheme has been received from any person in respect of the Scheme of Amalgamation. 13. As per the Scheme, the Appointed Date is 01.04.2019 or such other date as may be approved by this Tribunal. It is submitted that the merger being an internal consolidation and upon the coming into effect of the Scheme and in consideration for amalgamation of Transferor Companies 3, 6, 9, 10, 11, 12 and 13 with Transferee Company 4 in terms of this Scheme, Transferee Company 4 shall issue and allot equity shares to the shareholders of the Transferor Companies 3, 6, 9, 10, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Transferor Company No. 12 having face value of INR 10 (ten) each fully paid-up. ("Share Exchange Ratio Transferor Company No. 12") For the Transferor Company No. 13 Aggregate of 94329 (Ninety four thousand three hundred twenty nine) equity shares of the Transferee Company No. 4 having face value of INR 10/- (Rupees Ten only) each fully paid-up for every 49506 (Forty Nine Thousand Five hundred six) equity shares of Transferor Company No. 13 having face value of INR 10 (Rupees Hundred) each fully paid-up. ("Share Exchange Ratio Transferor Company No. 13") 14. The exchange ratio has been decided based on a valuation exercise carried out by a registered valuer, Kapil Nayyar, which has been accepted by the Board of the Petitioner Companies. However, since Transferor Company Nos. 1, 2, being the wholly owned subsidiaries of Transferor Company No. 3, Transferor Company Nos. 4, 5 being the wholly owned subsidiaries of Transferor Company No. 6 and Transferor Company Nos. 7, 8 being the wholly owned subsidiaries of Transferor Company No. 9 (Transferor Companies 1, 2, 4, 5, 7 and 8 will be dissolved pursuant to the Scheme), therefore upon the Scheme becoming effective, the entir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd since no specific details regarding genuineness of assets and liabilities have been given, it cannot be determined whether the share valuation is fair and true. Hence, the share exchange ratio can't be accepted. b) In Annexure B of the report, the ITD has listed out certain tax demands pending for recovery from the Petitioner Companies. c) In Annexure C of the report, the ITD department has drawn attention to the dimensions under which a merger Scheme needs to be analyzed under the Income Tax Act. 20. In response to the above reports, the petitioner companies have filed counter vide Diary No. 01607/2 dated 23.03.2021. The reply filed by the Petitioner Companies is as under:- a) In response to para 9 of the RD report, the Petitioner Companies have stated that they have filed the Balance Sheet and Annual Returns up to date and the Regional Director's observations in relation to filings up to 31.03.2019 are in relation with the fact that the appointed date under the Scheme is 01.04.2019 and not because there is any default on part of the Petitioner companies. The master data of the Petitioner companies have also been filed which reflects that filings for the financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to take appropriate recourse for recovering the existing or previous liability of the Transferor Company and the Transferee Company shall not raise any issue regarding maintainability of said proceeding on account of the sanctioning of the Scheme or in respect of the assets sought to be transferred under the Scheme and the same shall be binding on the Transferee Company." (iii) It is also mentioned that the Petitioner Companies will not claim any carry forward of losses under the Income Tax Act 1961, except in accordance with law and shall comply with all applicable provisions of the Income Tax Act, 1961. f) In relation in Annexure C of the report of the ITD, it has been stated that none of the Petitioner Companies were part of any earlier merger/demerger and the Income Tax Department will always retain its recourse for recovery in respect of any existing or future tax liabilities of the Transferor companies or the Transferee company, in respect of the assets sought to be transferred under the proposed scheme. It is further stated that the Petitioner Companies will not take any defence in relation to sanction of the Scheme in relation to any tax treatment under Income tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in respect of any permission /compliance with any other requirement which may be specifically required under any law. With the sanction of the 'Scheme', the Transferor Companies shall stand dissolved without undergoing the process of winding up. AND THIS TRIBUNAL DOES FURTHER ORDER: i) That all the property, rights and powers of the Transferor Companies be transferred, without further act or deed, to the Transferee Companies and accordingly, the same shall pursuant to sections 230 to 232 of the Companies Act, 2013, be ultimately transferred to and vested in the Transferee Company 4 for all the estate and interest of the Transferor Companies but subject nevertheless to all charges now affecting the same; and ii) That all the liabilities and duties of the Transferor Companies be transferred, without further act or deed, to the Transferee Companies and accordingly the same shall pursuant to Sections 230 to 232 of the Companies Act, 2013, be transferred to and become the liabilities and duties of the Transferee Company 4; and iii) That all the proceedings now pending by or against the Transferor Companies be continued by or against the Transferee Company 4; and iv) That t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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