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TMI Blog2022 (4) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... er No. 1 above named (Transferee Company) whereby and where under the Transferor Company is proposed to be amalgamated with the Transferee Company from the Appointed Date i.e. 01st day of April, 2020 in the manner and on the terms and conditions stated in the Scheme of Amalgamation. 2. The Petition has now come up for final hearing. Learned Authorised Representative for the Petitioners submits as follows:- a) The Scheme was approved unanimously by the respective Board of Directors of the Transferor Company and the Transferee Company at their meetings held on 04th day of January, 2021, respectively. b) The circumstances which justify and/or have necessitated the Scheme of Amalgamation and the benefits of the same, are inter-alia as follows:- (i) The Transferor Company and the Transferee Company belong to common group and common management. There are common Shareholders and Directors in the Transferor Company and the Transferee Company. (ii) The Transferor Company and the Transferee Company have agreed to integrate their businesses. In order to integrate the fields of activities of the Petitioners and for improving overall business efficiency and in the overall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and holding of the meeting of the Equity Shareholders and Creditors (Secured and/or Unsecured) of the Transferor Company and the Transferee Company in view of written consent by way of Affidavit given by all the Equity Shareholders and the Unsecured Creditors of the Petitioners. f) Consequently, the Petitioners presented the instant Petition for sanction of the Scheme. By an Order dated 15th day of July, 2021 in C.P. (CAA) No. 107/KB/2021 Connected with C.A. (CAA) No. 21/KB/2021, the instant Petition was admitted by this Tribunal and fixed for hearing on 13th day of September, 2021 upon issuance of notices to the Statutory Authorities and advertisement of date of hearing. In compliance with the said Order dated 15th day of July, 2021, the Petitioners have duly served Notices on the following Statutory Authorities dated 30th day of July, 2021: (i) The Central Government, through the Regional Director, Eastern Region, Ministry of Corporate Affairs; (ii) The Registrar of Companies, Kolkata; (iii) The concerned Assessing Officer along with the Chief Commissioner of Income Tax with PAN of the Petitioners; (iv) The Official Liquidator, having jurisdiction ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Hon'ble National Company Law Tribunal, Kolkata Bench, in terms of the provisions of Section 232(3)(i) of the Companies Act, 2013, the Authorized Share Capital of the Transferor Company will be added to the Authorized Share Capital of the Transferee Company without any payment of fees, duty, charges or any payment of similar nature after Amalgamation. Furthermore, after Amalgamation the Transferor Company stand dissolved and the fees, if any, paid by the Transferor Company on its Authorized Share Capital shall be set off against any fees payable by the Transferee Company on its Authorized Share Capital subsequent to Amalgamation which is in line with Section 232(3)(i) of the Act. Hence, in substance, Clause 2.7 of Part - III of the Scheme is in compliance with Section 232(3)(i) of the Companies Act, 2013. However, the Petitioners undertake to the effect that the Registrar of Companies (ROC) fees payable, if any, will be paid by the Transferee Company on sanctioning of the Scheme is annexed in the Rejoinder and marked as Annexure - A . (b) Paragraph 2 (c) of the RD Affidavit: That the Transferee Company should be directed to pay applicable stamp duty on the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate that pursuant to an order passed in C.P. (CAA) No. 107/KB/2021 Connected with C.A. (CAA) No. 21/KB/2021 dated 15th July, 2021, the Petitioners have served notice under Section 230(5) of the Companies Act, 2013 along with the Scheme of Amalgamation and Order copy of the National Company Law Tribunal (NCLT), Kolkata Bench to the Central Government through the Regional Director, Eastern Region, Ministry of Corporate Affairs; the Registrar of Companies, Kolkata; the concerned Income Tax Assessing Officer along with the Chief Commissioner of Income Tax with Permanent Account Number (PAN) of the Petitioners; the Official Liquidator attached to the Hon'ble High Court Calcutta having jurisdiction over the Transferor Company and the Transferee Company and other sectoral regulators applicable over the Transferee Company and the Transferor Company which are likely to be affected by the proposed Scheme of Amalgamation. A certified true copy of acknowledgement receipt of notice served to the statutory authorities is annexed in the Rejoinder and marked as Annexure - E . (f) Paragraph 2 (g) of the RD Affidavit: The Hon'ble Tribunal may kindly seek the undertaking that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the register of members of the Company is a member. However, the Companies Act, 2013 does not define the word person hence reference can be taken from the Income Tax Act, 1961 and the General Clauses Act, 1897, which defines the word Person . (a) As per Section 2(31) of the Income Tax Act, 1961, the term Person includes Individual, Hindu Undivided Family (HUF), Association of Person (AOP), Body of Individuals (BOI), Firms, Limited Liability Partnership (LLP), Companies, Local Authority and any Artificial Juridical Person. (b) As per Section 2(30) of the General Clauses Act, 1897, person shall include any company or association or body of individuals, whether incorporated or not. In lights of the above, it can be inferred that Vaishnavi Co. being an Association of Person is competent to hold shares in its own name and be a registered member of a company. A copy of latest ITR of Vaishnavi Co. (AOP) is annexed in Rejoinder and marked as Annexure - G . 6. The Regional Director ( RD ) has filed his reply affidavit dated 09th day of September, 2021 ( RD affidavit ) which has been dealt with by the Petitioner(s) by their Rejoinder affidavit dated 14th day of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents in the instant proceedings and considering the submissions, we allow the Petition and make the following orders:- (i) That the said Scheme of Amalgamation being Annexure - 1 to the Petition is sanctioned by the Tribunal to be binding on Shadhu Vanijya Private Limited (Transferor Company) and Hornbill Infratech Private Limited (Transferee Company), their respective Shareholders and Creditors and all concerned from the Appointed Date i.e. 1st day of April, 2020; (ii) That with effect from the Appointed Date, all the properties, rights and powers of the Transferor Company, including those described in the Schedule of Assets herein, be transferred from the said Appointed Date, without further act or deed to the Transferee Company and accordingly, the same shall pursuant to Section 232(4) of the Companies Act, 2013, be transferred to and vest in the Transferee Company for all the estate and interest of the Transferor Company therein but subject nevertheless to all charges now affecting the same, as provided in the Scheme; (iii) That with effect from the Appointed Date i.e. 1st day of April, 2020, all debts, liabilities, duties and obligations of the Transferor ..... 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