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TMI Blog2022 (2) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... nd RoC within 45 days from today. The present Company Scheme Petition deserves to be allowed - Application allowed. - CP (CAA)/5/GB/2021 in CA (CAA)/8/GB/2021 - - - Dated:- 28-1-2022 - Rohit Kapoor, Member (J) And Prasanta Kumar Mohanty, Member (T) ORDER Prasanta Kumar Mohanty, Member (T) 1. The Petitioner Companies have preferred the present joint application under Sections 230-232 of the Companies Act, 2013 seeking sanction of this Tribunal to a Scheme of Amalgamation of M/S. Luit Valley Enterprises Private Limited (Transferor Company), with M/S. Nemcare Hospital Tezpur Private Limited (Transferee Company), whereby and where under the entire undertakings of the Transferor Company as a going concern together with all the assets and liabilities relating thereto is proposed to be transferred to and be vested in the Transferee Company on the terms and conditions and in the manner fully stated therein. A copy of the said Scheme of Amalgamation has been annexed. 2. The rationale of the said Scheme of Arrangement are, as follows: i) Such Amalgamation will reap the benefits of economy of scale after greater leverage of funds. ii) Opportunity to strategic r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hareholders, employees and all concerned. 3. This Bench vide its order dated 23.08.2021 had disposed of the First Motion petition i.e. CA (CAA) No. 8/GB/2021 with certain directions to the authorized representative of the Applicant Companies or its Counsels to file an affidavit of compliance relating to the Transferor Company before three weeks from the date of next hearing. 4. During the proceedings, the Respondent, RD had sought certain clarifications from the Petitioners. The Petitioners were directed to clarify the points raised by the RD within a week. The RD was given liberty to file further reply/objections if any, within one week thereafter. 5. The Regional Director, Eastern Region, Kolkata with additional charge of Regional Director, NER, Guwahati has made the following observations in its representation: Para 2(a): That on examination of the report of the Registrar of Companies, Guwahati dated 22.10.2021 that both the Transferor Company and Transferee Company fall within the jurisdiction of ROC, Guwahati. It is submitted that no complaint and/or representation regarding the proposed scheme of Amalgamation has been received against the Petitioner Companies. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per Section 2(40) of the CA, 2013 financial statement in relation to a company, includes- (i) A balance sheet as at the end of the financial year; (ii) A profit and loss account, or in the case of a company carrying on any activity not for profit, an income and expenditure account for the financial year; (iii) Cash flow statement for the financial year; (iv) A statement of changes in equity, if applicable; and (v) Any explanatory note annexed to, or forming part of, any document referred to in sub-clause (i) to sub-clause (iv): The Transferor Company, Luit Valley Enterprises Private Limited is subsidiary of North East Medical Care and Research Centre Private Limited . Hence the company is not a small company. But the company has not attached Cash Flow Statement to its financial statements for 2016-17, 2017-18, 2018-19 and 2019-20. Thus the financial statements filed are incomplete and defective. The company should first file complete financial statements with the Registrar of Companies in the manner laid down in the Companies Act 2013 read with the relevant rules. Once merged the company shall become non-active on MCA Portal and would have the plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. Nemcare Hospital Tezpur Private Limited (Transferee) as per mandate of the Banker (SBI). Thereafter Nemcare Hospital Tezpur Pvt. Ltd. started repairing, renovating, constructing the part of the building and the amount is being used from the bank loan given for setting of the hospital. The details of Capital work in progress is shown in Page 82 of the Company Application. Thus all the renovation/repairing/constructions had added value to the building and has been shown as capital work in progress and the necessary depreciation will be provided when the building will be put to use by M/S. Nemcare Hospital Tezpur Private Limited. There was no other intension since the building was not in use by M/S. Luit Valley Enterprise Private Limited the depreciation is not booked in the books of the transferor. Para 2: With reference to Para 2(c) the company M/S. Luit Valley Enterprises Private Limited (Transferor) does not have any business operation. And the only expense is the audit fees and ROC filing expenses and as such no due is mentioned towards micro and small enterprises. The unsecured loan is from the Director and necessary affidavit and CA certificates are submitted along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the transferor Company. 7. It is found that the Applicant Companies have submitted the Audited Financial Statement, Directors Report and Auditor Report for the year ending 31.03.2020, the copies of these have been annexed with the applications. The Audit Report has been submitted by Mr. Champalal Maheswari, CA wherein it is stated that: 7.1 The Companies (Auditor's report) Order, 2016 issued by the Central Government of India in terms of sub-section (11) of section 143 of the Act, is not applicable for the Company. 7.2 As required by Section 143(3) of the Act, they report that: a) They have sought and obtained all the information and explanations which to the best of our knowledge and belief were necessary for the purposes of our audit. b) In their opinion, proper books of account as required by law have been kept by the Company so far as it appears from our examination of those books. c) The Balance Sheet, the statement of Profit and Loss dealt with by this Report are in agreement with the books of account. d) In their opinion, the aforesaid financial statements comply with the Accounting Standards specified under Section 133 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll proceedings and/or suits and/or appeals now pending by or against Transferor Company be continued by or against Transferee Company. e) The Share Exchange ratio mentioned in the scheme be sanctioned by this Hon'ble Tribunal to be binding with effect from the 1st day of April 2020 or from such other date as this Hon'ble Tribunal may fix on Transferor Company and Transferee Company. f) Leave to be granted to the Petitioner to file the Schedule of Assets of the Transferor Company as stated in the Petition within Sixty days from the date of the order to be made herein. g) Transferor Company within 30 days after the date of the order to be made herein cause a certified copy thereof to be delivered to the Registrar of Companies, Guwahati. h) The Transferor Company be dissolved without winding-up from the date of filing of the certified copy of this order upon the Registrar of Companies, Guwahati by the Transferor Company. i) The Registrar of Companies, Guwahati upon receiving such Certified copy be directed to place all documents relating to the Transferor Company and Registered with him on the file kept by him in relation to Transferee Company and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.1 By an order made in Company Application (CAA) No. CA (CAA)/8/2021, dated 23rd August, 2021 this Hon'ble Tribunal was pleased to dispense with the Meeting of the Equity Shareholders and Creditors of the Petitioner Companies. Pursuant to the said order dated 23rd August, 2021, the Petitioner Company is filing this confirmation petition. 12.2 By an order made in the order made in Company Application (CAA) No. CA (CAA)/8/2021, dated 23rd August, 2021 this Hon'ble Tribunal has directed to the petitioner companies to: as per the requirements of sub-section (5) of Section 230 of the Companies Act, 2013 along with the copy of the Scheme of amalgamation, order and notice on the: I) Regional Director, NER II) Registrar of Companies, Guwahati III) Official Liquidator, Guwahati IV) The concerned Income Tax Officer Through E-mail and speed post both A copy of the Affidavit of Compliance dated 26th October, 2021 has been annexed. 12.3 The Assets of the Petitioner Companies are sufficient to meet all its liabilities and the said Scheme of Amalgamation will not adversely affect in any manner whatsoever. 12.4 There are no proceedings pend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Transferee Company is also directed to incorporate the figures/data of the Revised Balance Sheet of the Transferor Company while preparing the consolidated Balance sheet of the Merged Company as on appointed date i.e. 01/04/2020. 17. However, the present Company Scheme Petition deserves to be allowed. Hence, it is allowed in terms of its prayer/relief clause. Consequently, the proposed company scheme of Amalgamation of Luit Valley Enterprise Pvt. Ltd. (Transferor Company) with Nemcare Hospital Tezpur Pvt. Ltd. (Transferee Company) is hereby allowed with following terms and conditions:- 17.1 While Approving the Scheme, we make clear 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, and payment in accordance with law. 17.2 The whole of the property, rights and powers of Transferor Company be transferred without further act or deed to the Transferee Company and accordingly the same shall pursuant to Section 232 of the Companies Act, 2013, be transferred to and vest in the Transferee Company for all the state and interest of the Transferor Company therein but subject nevertheles ..... X X X X Extracts X X X X X X X X Extracts X X X X
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