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TMI Blog2021 (11) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... irish Properties Private Limited with Acme Chem Ltd. Copy of the Scheme is annexed as Annexure A at pg. 28 of the petition. 3. The Ld. Counsel for the Petitioner submits that the Transferor Company 1 and Transferor Company 2 are engaged into real estate business and the Transferee Company is engaged into three line of business segments (i.e. manufacture and supply of rubber chemical, real estate and treasury operations). 4. The Ld. Counsel submits that the circumstances and/or reasons and/or grounds that have necessitated and/or justified the arrangement are stated in the said Scheme of Arrangement. They are inter alia, as follows: a. The amalgamation will enable the optimal utilisation of the available resources and yield benefits to the Transferee Company including achieve business synergies, market access, unified platform for growth, access to customer base and cost effectiveness. b. The amalgamation will enable the resulting business and activities of the Transferee Company to be carried on more efficiently, conveniently and advantageously with greater economies of scale, pooling and more efficient utilisation of their resources, elimination of duplication of wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in terms of the order dated 7th December, 2020 read with order dated 14th December, 2020 is filed and is also annexed to the petition at pgs. 281 being Annexure L to the petition. 12. This second motion petition was admitted by order dated 23rd July, 2021. Upon admission directions were given for publication of notice of hearing and service upon the sectoral authorities. 13. Learned Counsel for the petitioners submit that in compliance of the order dated 23rd July, 2021, the petitioner has published the notice of hearing and also served the sectoral authorities being Registrar of Companies, Central Government through the Office of Regional Director, Eastern Region, Income Tax Authorities, Official Liquidator, and Competition Commission of India. It is further submitted that affidavit of compliance dated 8th September, 2021 has been filed before this Tribunal. 14. Learned Counsel for the petitioner submits that the Official Liquidator has filed its report dated 13th September, 2021 and at para 10 of the said report it states that: 10. That the Official Liquidator on the basis of information submitted by the Petitioner Companies is of the view that the affairs of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y kindly seek the undertaking that this scheme is approved by the requisite majority of members and creditors as per section 230(6) of the Companies Act 2013 in meeting duly held in terms of section 230(1) read with sub-sections (3) to (5) of section 230 of the said Act and the Minutes thereof are duly placed on record. Paragraph 6 of Rejoinder: With regard to para 2(e) of the said affidavit it is submitted that in terms of the order dated 7th December, 2021 read with order dated 14th December, 2021, meeting of the shareholders and creditors of the Transferee Company was convened on 25th January, 2021 and meeting of the unsecured creditors of the Transferor Companies were also convened on 25th January, 2021, other meetings were dispensed. The resolution for the sanction of the Scheme was passed by requisite majority in the said meetings. The Chairperson so appointed by this Hon'ble has also filed his report before this Hon'ble Tribunal in this regard. Paragraph 2 (f) of RD Affidavit: The Hon'ble Tribunal may kindly direct the Petitioners to file an affidavit to the extent that the Scheme enclosed to the Company Application and Company Petition are on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment. Paragraph 9 of Rejoinder: With regard to para 2(h) of the said affidavit it is submitted that though Adirish Properties Private Limited (APPL) holds 10 lakh shares of Prateek Agro Experts Private Limited (PAEPL), PAEPL is not an associate of APPL since APPL does not have significant influence in PAEPL as defined and required in terms of the relevant Accounting Standard viz AS-23 on Accounting for Investments in Associates in Consolidated Financial Statements. AS-23 states that: 4...As regards share ownership, if an investor holds, directly or indirectly through subsidiary(ies), 20% or more of the voting power of the investee, it is presumed that the investor has significant influence, unless it can be clearly demonstrated that this is not the case.... 5. The existence of significant influence by an investor is usually evidenced in one or more of the following ways: (a) Representation on the board of directors or corresponding governing body of the investee; (b) participation in policy making processes; (c) material transactions between the investor and the investee; (d) interchange of managerial personnel; or (e) provision of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rejoinder: With regard to para 2(i) of the said affidavit it is submitted that the change in the shareholding of the promoters has been indicated in the Valuation Report as on the appointed date. A copy of the same was part of the company application and is also annexed to the company petition. It is also submitted that consideration for transfer of assets/undertaking of Transferor Companies 1 and 2 has been mentioned in the Scheme of Amalgamation as well as in the Valuation Report. Paragraph 2 (j) of RD Affidavit: It is submitted that as per instructions of the Ministry of Corporate Affairs, New Delhi, a copy of the scheme was forwarded to the Income Tax Department on 24/08/2021 for their views/observation in the matter. However the same is still awaited. Paragraph 11 of Rejoinder: With regard to para 2 (j) of the said affidavit, it is submitted that the same is matter of record 16. From the material on record, the Scheme appears to be fair and reasonable and is not violative to any provisions of law, nor is contrary to public interest. 17. Since all requisite compliance has been fulfilled, the following orders in terms of prayers made in the petiti ..... 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