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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 ..... /2020 - - - Dated:- 6-8-2021 - Hon ble Mr. Ajay Kumar Vatsavayi, Member (Judicial) And Hon ble Mr. Raghu Nayyar, Member (Technical) For the Petitioners : 1) Mr. D. Bhattacharyya, Advocate 2) Ms. Deeti Ojha, Advocate For the Income Tax Department : Mr. Yogesh Putney, Advocate ORDER Per : Ajay Kumar Vatsavayi, Member (Judicial) This is a joint Second Motion Petition filed by the Petitioner-Companies namely Aftab Investments Private Limited (Transferor Company 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U, V, W, X, Y, Z, ZA, ZB, ZC, ZD and ZE of the petition are the certificates of the statutory auditors of the respective Petitioner Companies, stating therein that the accounting treatment in the books of the Transferee Companies proposed in the Scheme is in compliance with the applicable accounting standards and other generally accepted accounting principles in India. 8. The audited financial for the year ended 31.03.2019 along with provisional financials for the period ended 30.11.2019 of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Mr. Anup Verma, Authorised Signatories of all the petitioner-companies vide Diary No. 01607/01 dated 29.12.2020 along with copies of newspaper advertisements in Financial Express (English), and Jansatta (Hindi) published on 22.12.2020. 11. It is also stated in the said affidavit dated 28.12.2020 that individual notices were sent by the petitioner-companies to the Regional Director, Northern Region, Ministry of Corporate Affairs, Registrar of Companies, NCT of Delhi Haryana, Principal Chief Commissioner of Income 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 11 having face value of INR 100 (Rupees Hundred) each fully paid-up. ( Share Exchange Ratio Transferor Company No. 11 ) For the Transferor Company No. 12 Aggregate of 3774 (Three thousand seven hundred seventy four ) 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32(i) of the RoC report, it is submitted that the Transferee Company may kindly be directed to comply with the provisions of Section 232 (3) (i) of the Companies Act, 2013 in regard to the fee payable on its revised authorized capital. 19. Further, the Income Tax department (ITD) has filed its report vide Diary No. 00355/01 dated 29.01.2021, wherein the following observations has been made: a) In para 17 and 18, it is stated that the Share Valuation Report has followed Net Asset Value method for share valuation, however the balance sheets submitted with the motions are only provisional and 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. e (i) In response to the Income Tax Department s observations in Annexure B of its report regarding pending tax demand, it has been stated that the Scheme provides that the Transferee Company 4 shall take over all the existing liabilities, including tax liabilities of all the Transferor Companies. (ii) It is also undertaken on behalf of the Transferee Company 4, stating that the Transferee Company 4 shall defray all tax liabilities of all the Transferor Companies in accordance with law irrespective of sanction of the Scheme and the sanction of the Scheme shall not defeat the right of the Income Tax Department 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in their affidavit dated 28.12.2020. c) The Petitioners have annexed the response of Reserve Bank dated 19.03.2021 with the counter, wherein Reserve Bank of India has stated that they have no comments to offer in relation to the Scheme (Annexure A of Diary No. 0355/7 dated 05.07.2021). 23. In view of the above, there is no impediment in the approval of the Scheme . The Scheme (Annexure A) is hereby approved. While approving the Scheme, it is clarified that this Order should not be construed as an Order in any way granting exemption from payment of any stamp duty, taxes or any other charges, if any, and payment in accordance with law 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 ultim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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