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TMI Blog2022 (2) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ramathilagam, J. (Member (J)) 1. The hearing of this Petition has been conducted through video conferencing platform. 2. The instant Petition pertains to the proposed Scheme of Amalgamation of M/s. Mandala Wellness Private Limited (for brevity Transferor Company ), and M/s. Phasorz Technologies Private Limited (for brevity Petitioner/Transferee Company ). The registered office of the Transferor Company is situated at Bangalore, Karnataka and falls within the jurisdiction of NCLT Bangalore Bench. The Transferor Company has filed a company petition before the NCLT, Bangalore Bench and the same is pending for final order. The Transferee Company in their Board of Directors meeting held on 23rd December 2019 has accorded their approval for Scheme of Amalgamation (hereinafter referred to as Scheme ) as contemplated between the Transferor and Transferee companies. The Scheme is annexed as Annexure '1' to the typed set filed along with the Petition. 3. 1st Motion Application - In Brief 3.1. The Petitioner/Transferee Company has filed the First Motion Application vide CA/343/CAA/2020 seeking directions for dispensing with the meeting or alternatively to conduct mee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n affidavit of service in relation to the compliance of the order passed by the Tribunal as noted above and a perusal of the same discloses that the Petitioner Companies have effected paper publication as directed by the Tribunal in one issue of Business Standard (All India Edition) in English and Makkal Kural (Tamil Nadu Edition) in Tamil on 29.10.2021. It is also seen that notices have been also served to (i) The Regional Director, Southern Region, Chennai on 13.10.2021, (ii) Registrar of Companies Chennai on 13.10.2021, (iii) Income Tax Department on 29.10.2021 and the proof of the same by way of affidavits have been enclosed with the typed set filed along with the Petitions. Pursuant to the service of notice of the petition the following statutory authorities have responded as follows; 7. Statutory Authorities 7.1. Regional Director The Regional Director, (hereinafter referred to as 'RD') Chennai to whom the notice was issued, has filed his Report on 12.11.2021 before this Tribunal and has stated that Clause 9 of Part C of the Scheme provides for the protection of the interest of the employees of the Transferor Company. It is further observed that as per th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax Department 7.2.1 In spite of notice having been served to the Income Tax department by the Companies on 29.10.2021, there was neither any representation nor any report filed by the said authorities. In the said circumstances as per section 230(5) of the Companies Act, 2013, this Tribunal presumes that the said Department does not have any objection to the sanction of the Scheme. 7.2.2 However, in Company Petition CAA-284/ND/2018 vide Order dated 12.11.2018, the NCLT New Delhi with a view to protect the interest of the revenue, has made the following observations with regard to the right of the IT Department in the Scheme of Amalgamation, taking into consideration the clauses contained in the Scheme in relation to liability to tax and also as insisted upon by the Income Tax and in terms of the decision in RE: Vodafone Essar Gujarat Limited v. Department of Income Tax (2013)353 ITR 222 (Guj) and the same being also affirmed by the Hon'ble Supreme Court and as reported in (2016) 66 taxmann.com.374(SC) from which it is seen that at the time of declining the SLPs filed by the revenue, however stating to the following effect vide its order dated April 15, 2015 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Scheme stands approved, subject to the approval by the NCLT, Bangalore Bench in respect of the Transferor Company. 10.2. The Learned Authorized Representative for the Petitioner Company submitted that no investigation proceedings are pending against the Transferee Company under the provisions of the Companies Act, 1956 or the Companies Act, 2013 and no proceedings against the petitioner company for oppression or mismanagement have been filed before this Tribunal or erstwhile Company Law Board. 10.3. Notwithstanding the above, if there is any deficiency found or, violation committed qua any enactment, statutory rule or regulation, the sanction granted by this Tribunal will not come in the way of action being taken, albeit, in accordance with law, against the concerned persons, directors and officials of the petitioner. 10.4. While approving the Scheme as above, it is clarified that this order should not be construed as an order in any way granting exemption from payment of stamp duty, taxes or any other charges, if any, payment is due or required in accordance with law or in respect to any permission/compliance with any other requirement which may be specifically require ..... X X X X Extracts X X X X X X X X Extracts X X X X
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