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TMI Blog2021 (8) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... ened through Virtual Hearing. 2. Heard the learned counsel for the Petitioner Companies. No objector has come before the Tribunal to oppose the Petition and nor any party has controverted any averments made in the Petition. 3. The Petitioner Companies states that the present Scheme is an Amalgamation of ANJ Buildcon Private Limited ( the First Petitioner Company or the Transferor Company ) and ANJ Turnkey Projects Private Limited ( the Second Petitioner Company or the Transferee Company ) and their respective Shareholders. 4. The Petitioner Companies further submits that the consolidation of the business operations inter alia will result in the following benefits: - The Amalgamation of ANJ Buildcon Private Limited and ANJ Turnkey Projects Private Limited will result in various benefits including: i. The merger of the two companies under one group will result in the establishment of a larger company with large resources, larger capital base and greater capacity to raise funds for expansion, modernization and development of the businesses of the companies concerned. ii. The merger will enable the undertakings and businesses of the said companies to obtain g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of the Petitioner Companies further states that the Petitioner Companies have complied with all requirements as per directions of the Tribunal and they have filed necessary affidavits of compliance in the Tribunal. Moreover, the Petitioner Companies undertake to comply with all statutory requirements if any, as required under the Companies Act, 2013 and the Rules made there under whichever is applicable. The said undertakings given by the Petitioner Companies are accepted. 8. The Regional Director has filed a Report dated 11 February 2021 stating therein, save and except as stated in paragraph IV (a) to (l), it appears that the Scheme is not prejudicial to the interest of shareholders and public. In paragraph IV, of the said Report it is stated that: 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.; b. As per Part-I-Definitions clause 1(1.2), 1(1.4) (1.8) of the Scheme Appointed Date for the purpose of this scheme and for Income Tax Act, 1961, the Appointed Date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner Company have to undertake to comply with section 232(3) (i) of 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 and therefore, petitioners to affirm that they comply the provisions of the section. g. As per part B clause 6(6.1 to 6.3) of the scheme of (Aggregation of Authorized Capital) In this regard it is submitted that the fee payable by the Transferee Company shall be in accordance with the provisions of Section 13, Section 14, Section 61, and Section 232(3)(i) of the Companies Act, 2013 further if any stamp duty is payable the same should be paid in accordance with applicable laws of the state; h. As per Part B Clause 7(7.1 to 7.7) of the Scheme (Reduction Capital) Upon the merger being effective, the investment held by the Transferor Company in the equity share capital of the Transferee Company shall stand cancelled and accordingly, the share capital of the Transferee Company shall stand reduced to the extent of face value of shares held by the Transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany. In this regards it is submitted that the reserve so created shall be treated as Capital Reserves arising out of Amalgamation and it shall not be available for distribution of dividend and other similar purposes. j. The petitioner company may be directed to submit undertaking that the petitioner company shall ensure compliance of all the provisions of the Income Tax Act, 1961 including the provisions of section 2(1B) of the Income Tax Act. k. As both Transferor and the Transferee Company are engaged in the business of real estate development, construction, hospitality and other allied activities, the petitioner may be directed to obtain the NOC from (RERA) regarding applicability of Real Estate Regulation and Development Act, 2016 with Maharashtra Rules and Regulation 2017 l. In view of the observation raised by the ROC Mumbai, mentioned at para 16 above Hon ble NCLT may pass appropriate orders/ orders as deem fit. 9. In response to the Report of the Regional Director the Petitioners have filed affidavit in rejoinder dated 16th February 2021 and have clarified as under: a. Apropos the observation of the Regional Director, Western Region, Mumbai, as sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the decisions of such authorities as per law shall be binding on the Petitioner Companies. f. Apropos the observations made in paragraph IV (f) of the Report of the Regional Director is concerned, the Petitioner companies clarifies that the Authorized Share Capital of Transferor Company shall be merged with that of the Transferee Company in accordance with the provision of Section 232(3) (i) of the Companies Act, 2013 and fees payable, if any shall be set-off in accordance with the provisions of the law. g. Apropos the observations made in paragraph IV (g) of the Report of the Regional Director is concerned, the Petitioner clarifies that the Transferee company shall pay the fees in accordance with the provisions of Section 13, section 14, section 61, and Section 232(3) (i) of Companies Act, 2013, further stamp duty, if any payable shall be paid in accordance with applicable laws of the state. h. Apropos the observations made in paragraph IV(h) of the Report of the Regional Director is concerned, the Petitioner companies clarifies that since Transferor company does not hold any Equity share in Transferee company, hence the clause relating to reduction of share cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prayer made in the petition. 14. The scheme is sanctioned hereby, and the Appointed Date of the scheme is 1st April 2019. The Transferor Companies shall stand dissolved without the process of winding up. 15. As a complete information dissemination/disclosure to all Shareholders, Creditors, Government Authorities, other stakeholders the petitioner companies are directed to publish immediately the approval granted by this Tribunal for the scheme in the same newspapers in which previous publication was made. Further copy of this order shall also be hosted on the website of the respective petitioner companies. 16. The Petitioner Companies are directed to lodge a certified copy of this order with the concerned Superintendent of Stamps and the Scheme within a period of 60 days from the date of receipt of certified copy of the order, for adjudication of stamp duty, payable, if any on the above. 17. The Petitioner Companies are directed to lodge a certified copy of this Order along with the copy of Scheme with the concerned Registrar of Companies, electronically, in e-form INC-28 within 30 days from the date of issue of the Order duly certified by the Registry of this Tribunal. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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