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TMI Blog2022 (2) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 required under any law. The Petitioner Companies shall to file the Schedule of Assets of the Transferor Companies in the form as prescribed in the Schedule of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 within three weeks from the date of receiving a copy of this order - Petition disposed off. - CP (CAA) No. 16/Chd/Hry/2019 - - - Dated:- 4-2-2022 - Harnam Singh Thakur, Member (J) And Subrata Kumar Dash, Member (T) For the Appellant : Arun Saxena, Advocate For the Respondents : Yogesh Putney, Advocate Senior Standing Counsel JUDGMENT Subrata Kumar Dash, Member (T) 1. This is a joint Second Motion Petition filed by the Petitioner Companies namely; Mohan Apartments Private Limited (Petitioner Company No. 1/Transferor Company No. 1), Kamal Vatika Private Limited (Petitioner Company No. 2/Transferor Company No. 2), MGR Holdings Private Limited (Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Tax, NWR, Aaykar Bhawan, Sector 17-E, Chandigarh by mentioning the PAN of the Companies, for all the Petitioner Companies. Copy of notices sent to RoC, NCT of Delhi and Haryana (Annexure-2) and speed post receipts along with tracking report of the notices (Annexure-3); Copy of notice sent to RD (Annexure-4) and speed post receipts along with tracking report of the notices (Annexure-5); Copy of notice sent to the Official Liquidator (Annexure-6) and speed post receipts along with tracking report of the notices (Annexure-7); and Copy of notice sent to Income Tax Department (Annexure-8) and speed post receipts along with tracking report of the notices (Annexure-9) of the compliance affidavits filed by Petitioner Company No. 1 to 6, respectively. 6. It is deposed by the authorized representative of the Petitioner Company No. 1 that pursuant to publications made on 03.08.2019, the transferor company no. 1 has not received any objection from the public with regard to Merger of Transferor Company No. 1 to 5 with Transferor Company. The aforesaid affidavit was filed vide Diary no. 1180/6 Dated 29.11.2021. 7. In response to the abovementioned notices, the statutory authorities have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1, No. 3, No. 4 and Transferee Company, Diary No. 59 dated 06.01.2020 for Transferor Company No. 2 and Diary No. 4529 dated 03.09.2019 for Transferor Company No. 5. In Respect of Transferor Company No. 1 and 4 b) The Income Tax Department has stated in its report that for the AY 2018-19 the Petitioner Company No. 1 has claimed a Long Term Capital Loss of ₹ 3,49,17,607/-. Out of this amount ₹ 31,70,361/- has been adjusted against the Long Term Capital Gain for AY 2019-20. Therefore, the assessee as per the ITR for AY 2019-20, has total loss carried forward of ₹ 3,18,09,080/-. It is also stated in the report that Petitioner Company No. 4 holds 2,00,000 shares worth ₹ 5,86,53,875/- of Petitioner Company No. 2, which is also covered under the present scheme of amalgamation. Therefore, the change in ratio may have an impact on valuation of shares of Petitioner Company No. 2 and this may result in capital gain/loss to the assessee. In Respect of Transferee Company c) In respect of Transferee Company, it is submitted in the report that the major demand outstanding against the transferee company is of ₹ 75,31,340/- for the Assessment Ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax Department. g) The Income Tax Department has filed written submission vide Dairy No. 01180/1 Dated 26.10.2020 stating that That as per the scheme of amalgamation, the appointed date is 01.04.2018, the scheme does not contemplate carry forward of losses/unabsorbed depreciation. Clause 6.7 (Page 540) only contemplates Profits or Losses of Transferor Companies No. 1 to 5 for the period commencing from appointed date . Clause 14 (Page 556) also does not contemplate carry forward of losses. Hence, the losses of Transferor Company No. 1 for the Financial Year 2017-18 i.e. prior to the appointed date cannot be allowed to be carried forward. The Brought Forward losses shall affect the Revenue adversely. It is apt to mention here that for claiming carry forward and set off of accumulated loss and unabsorbed depreciation, requirement of fulfilling the statutory conditions of Section 72A of the Income Tax Act, 1961 is sine-qua-non. In the present case, the Companies do not fulfill the statutory requirement of Section 72A of the Income Tax Act, 1961 and are thus not eligible for carry forward and set off of accumulated loss and unabsorbed depreciation. h) In reply to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9): Admittedly, proceedings are pending in appeal before the Income-tax Appellate Tribunal and depending upon the outcome of such proceedings. The transferee company has undertaken to satisfy all demands emanating from and raised by the competent tax authorities. The scheme having been approved and sanctioned and the same being in consonance with law, no fault can be found with the transferee's undertaking to satisfy all demands raised by the tax authorities as finally determined by due process. The appellants are justified in maintaining that the tax liabilities would be satisfied by the transferee as determined by the competent forum seized of the matter in accordance with the approved scheme, which admittedly does not come in conflict with any express provision of the Companies Act, 2013. The legitimate interests of the concerned tax authorities have been lawfully protected, and their right to recover the tax dues as determined by the Income-tax Appellate Tribunal or any other competent forum as the case may remain intact. 7.6. Further in Company petition C.A.A. No. 284/ND/2018 vide order dated November 12, 2018, the National Company Law Tribunal, New Delhi has mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petitioners. 12. 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 required under any law. 13. THIS TRIBUNAL DO FURTHER ORDER: (i) That all the property, rights and powers of the Transferor Companies 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 but subject nevertheless to all charges now affecting the same; (ii) That all the liabilities and duties of the Transferor Companies be transferred, without fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Transferor Companies and Transferee Company shall be consolidated accordingly, as the case may be; (xii) That the Transferee Company shall deposit an amount of ₹ 1,00,000/- (One Lakh Only) in favour of The Company Law Tribunal Bar Association Chandigarh within a period of four weeks from the date of receipt of the certified copy of this order; (xiii) That the Petitioner Companies shall, within 30 days after the date of receipt of this order, cause a certified copy of this order to be delivered to the Registrar of Companies for registration in prescribed form and on such certified copy being so delivered, the Transferor Company shall be dissolved without undergoing the process of winding up. The concerned Registrar of Companies shall place all documents relating to the Transferor Company registered with him on the file relating to the said Transferee Company, and the files relating to the Transferor Company and Transferee Company shall be consolidated accordingly, as the case may be. 14. The Petitioner Companies shall to file the Schedule of Assets of the Transferor Companies in the form as prescribed in the Schedule of the Companies (Compromises, Arrangeme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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