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TMI Blog2022 (4) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... - 28-3-2022 - Ajay Kumar Vatsavayi, Member (J) And Manoj Kumar Dubey, Member (T) For Appearing Parties: Shrikar Jayagovind and Hemanth Rao ORDER Ajay Kumar Vatsavayi, Member (J) 1. This is a second motion petition filed by Amber Road Software. Private Limited (hereinafter referred to as the Petitioner Company/Transferor Company No. 3) under Sections 230-232 of the Companies Act, 2013 and other applicable provisions of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 for the sanction of Scheme of. Amalgamation between E2 Open Software India Private Limited (Transferee Company) and Steelwedge Technologies Private Limited (Transferor Company No. 1), Entomo Technologies India Private limited (Transferor Company No. 2) and Amber Road Software Private Limited (Transferor Company No. 3/Petitioner) and their respective Shareholders and creditors with effect from the appointed date. This petition is maintainable in terms of Rule 3(2) of the Rules. 2. The Petitioner Company filed First Motion Application bearing C.A. (CAA) No. 51/BB/2020 before this Tribunal, seeking for the dispensation of meeting of the Equity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 13.11.2021. 4. In pursuant to the aforesaid notice, the authorized signatory of the Petitioner Company has filed copies of proof of service of notice vide Diary No. 2998 dated 11.11.2021 served to the aforesaid authorities i.e., The Regional Director, Ministry of Corporate Affairs, Registrar of Companies, Income Tax Department, The Principal Commissioner of Income Tax, Reserve Bank of India, Office of the Official Liquidator, The Secretary Competition Commission of India. 5. The main objects, date of incorporation, authorised, issued and paid-up share capital of the Transferor Company No. 3, rationale of the Scheme and interest of employees have been discussed in detail in order disposing of the First Motion Application on 16.12.2020. 6. It is further submitted that the Certificate of Statutory Auditors of the Petitioner Company has been placed as Annexure-J of the petition, stating that the Company shall stand dissolved without being wound up upon the Scheme becoming effective and hence there is no accounting treatment prescribed under this Scheme in the books of the Company. 7. The true copy of the audited financial statements as on 31.03.2020 of Petitioner Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Hon'ble NCLT. f. The Transferor Company No. 3 has an outstanding amount of ₹ 11.87 crore due to its holding company, Amber Road Inc. the accounting treatment of the same in Transferee Company need to be explained as to whether it will be written off or any provision was made for the same before the Hon'ble NCLT. g. The Transferee Company shall absorb all the statutory dues payable by Transferor Companies 1, 2 and 3 post amalgamation. Hence, the Transferee Company shall furnish an undertaking to absorb the statutory dues payable by Transferor Companies before the Hon'ble NCLT. h. The Transferor Companies and the Transferee Company have Related Party Transactions. Hence, an undertaking with regard to compliance of Section 188 of the Companies Act, 2013 be furnished before NCLT. i. Clause 6 of the Scheme provides for Clubbing of Authorised Capital wherein it is stated that the authorized share capital of the Transferee Company shall automatically stand increased without any payment of stamp duty and fees. This term in the Scheme is not in line with the provisions of Section 232(3)(i) of the Companies Act, 2013. In this regard, the Transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the loan amount of ₹ 4 Crore will be cancelled from the books of Transferor Company. e. Reply to point 2(f) of report: It is submitted that the outstanding amount of INR ₹ 11.87 crore will be transferred to books of Transferee Company pursuant to scheme of Amalgamation. f. Reply to point 2(g) of report: It is submitted that the Transferee Company shall absorb all the statutory dues payable by Transferor Companies 1, 2 and 3 post amalgamation. g. Reply to point 2(h) of Report: It is submitted that the provisions of Section 188 of the Companies Act, 2013 with respect to related party transaction have been duly complied by Transferor Companies and Transferee Company. h. Reply to point 2(i) of Report: It is submitted that the Transferee will pay the difference fees, if any after clubbing of authorized capital of the First Second Transferor Companies. 13. The Official Liquidator (OL) has filed its report vide Diary No. 3440 dated 07.12.2021 in respect of the Petitioner Company observing that proper books of accounts, papers, statutory registers, minutes and other related records as required by law have been kept by the Transferor Company and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly, as the case may be; ii) That the Petitioner Company shall deposit an amount of ₹ 75,000/- (Rupees Seventy Five Thousand only) with the Pay Accounts Office, Chennai in respect of the Regional Director, South East Region, Ministry of Corporate Affairs, Hyderabad and ₹ 25,000/- (Rupees Twenty Five Thousand only) in favour of Prime Minister's National Relief Fund , within a period of four weeks from the date of receipt of certified copy of this order; and iii) That any person interested shall be at liberty to apply to the Tribunal in the above matter for any directions that may be necessary; and iv) That approval/sanctioning of the Scheme shall not be construed as an exemption from any of the provisions under the Income Tax Act, 1961 or the Companies Act, 2013, and that the authorities under both the Acts, are at liberty to take appropriate action, in accordance with law, if so advised. 18. As per the above directions, Form No. CAA-7 of Companies (Compromises, Arrangements and Amalgamations) Rules, 2016, formal orders be issued on the Petitioner Company on filing of the Schedule of Property i.e. (i) freehold property of the Transferor Company ..... X X X X Extracts X X X X X X X X Extracts X X X X
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