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TMI Blog2021 (11) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... esh Putney, Advocates and G.S. Sarin, PCS ORDER Ajay Kumar Vatsavayi, Member (J) 1. This is a Second Motion Petition filed in terms of Sections 230 and 232 of the Companies Act, 2013 read with Rule 16 of the Companies (Compromises, Arrangements and Amalgamations), by the petitioner-company, namely, DSYN Technologies Private Limited ( Petitioner Company / Transferor Company No. 2 ) for sanction of the Scheme of Amalgamation of M/s. Flipkart Logistics Private Limited (Transferor Company No. 1), M/s. DSYN Technologies Private Limited (Transferor Company No. 2), M/s. Adiquity Technologies Private Limited (Transferor Company No. 3) with M/s. Instakart Service Private Limited (Transferee Company). 2. The First Motion application seeking directions for dispensing with the meetings of equity shareholders, preference shareholders, secured and unsecured creditors of Petitioner-Company was filed before this Tribunal vide Company Application No. CA(CAA) No. 02/Chd/Hry/2018 and based on such joint application moved under Sections 230-232 of the Companies Act, 2013, (for brevity, the 'Act') necessary directions were issued on 23.05.2018, wherein the meetings of equity shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anies, NCT of Delhi and Haryana, Ministry of Corporate Affairs (c) Income Tax Department through the Nodal Officer - Principal Chief Commissioner of Income Tax, NWR, Aaykar Bhawan, Sector 17-E, Chandigarh by mentioning the PAN of the companies (d) Official Liquidator, Haryana at Chandigarh along with copy of this petition by speed post immediately and to such other Sectoral Regulator(s) who may govern the working of the respective companies involved in the Scheme. The petitioner-company is directed to file specific affidavits of the authorized representative to the effect that there is no Sectoral Regulator governing the business of the petitioner-company and the petitioner-company shall also file the affidavits at least two days before the date fixed to the effect that no objections to the Scheme have been received by the petitioner-company. The petitioner-company shall at least 7 days before the date of hearing of the petition file an affidavit of service regarding paper publication as well as service of notices on the authorities specified above including the sectoral regulator as well as to objectors, if any. The petitioner company shall individually comply with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiny or inspection is pending in respect of the petitioner. 12. The Regional Director (RD), Northern Region, has filed its report vide Diary No. 1703 dated 03.04.2019. The Regional Director in its report has mainly reiterated the contents of the report of the RoC and has not raised any adverse observations. 13. The Official Liquidator (OL), has also filed report vide Diary No. 00230/1 dated 18.08.2020, wherein the contents of the present Scheme are being discussed and further has not made any adverse observations with respect to the same. 14. The Income Tax Department has filed its report vide Diary No. 4687 dated 11.09.2019. It is submitted that the losses carried forward by the Petitioner Company dot not qualify to be carried forward to the Transferee Company as per the provisions of the Income Tax Act, 1961. It is also submitted that upon the perusal of the computation of Net Assets intrinsic value of equity shares of the applicant, it has been declared that the net worth of the Petitioner Company is negative yielding the value per share at Rs. (-548). It is also stated that the Petitioner has arbitrarily taken the fair value of the equity share at INR 1.05/- despit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te and relating to Transferor Companies or its properties, assets, debts, liabilities, duties and obligations, shall be continued and/or enforced until the Effective Date and from the Effective Date shall be continued and enforced by or against the Transferee Company in the same manner and to the same extent as would or might have been continued and enforced in by or against the Transferee Company in the same manner as would or might have been continued and enforced by or against Transferor Companies. 19. The Learned Counsel submitted that the valuation report of M/s. AJSH Co. LLP, Chartered Accountants, has also been annexed as Annexure-F of the petition. The following Share Exchange Ratio has been proposed in the aforesaid report: (a) Transferor Company No. 1 4290.14 (four thousand two hundred ninety dot one four) fully paid up equity shares of INR 10/- each of Transferee Company for every 100 (one hundred) equity shares of INR 1/- each held in Transferor Company No. 1/ (b) Transferor Company No. 2 i. 1.68 (one dot six eight) fully paid up equity shares of INR 10/- each of Transferee Company for every 100 (one hundred) equity shares of INR 10/- each held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irectors and officials of the petitioner as well as the petitioner. AND THIS TRIBUNAL DOES FURTHER ORDER: i) That all the properties, rights and powers of the Transferor Companies No. 1 to 3 be transferred, without further act or deed, to the Transferee Company and accordingly, the same shall pursuant to sections 230 to 232 of the Companies Act, 2013, be transferred to and vested in the Transferee Company for all the estate and interest of the Transferor Companies No. 1 to 3 but subject nevertheless to all charges now affecting the same; and ii) That all the liabilities and duties of the Transferor Companies No. 1 to 3 be transferred, without further act or deed, to the Transferee Company 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; and iii) That all proceedings now pending by or against the Transferor Companies No. 1 to 3 be continued by or against the Transferee Company; and iv) That all the employees of the Transferor Companies No. 1 to 3 shall be transferred to the Transferee Company in terms of the 'Scheme'; and v) ..... 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