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TMI Blog2022 (5) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... d Date, that is 1st April, 2018 in the manner and on the terms and conditions stated in the said Scheme of Amalgamation ( Scheme ). 2. The Petition has now come up for final hearing. Ld. Counsel for the Petitioners submits as follows:- a. The Scheme was approved unanimously by the respective Board of Directors of the Petitioner Nos. 1 and 2 at their meetings held on 9th January, 2019. b. The circumstances which justify and have necessitated the Scheme and the benefits of the same are, inter alia, as follows:- i. The Transferor Companies and the Transferee Company belong to common group and common management. There are common shareholders and common directors in the Transferor Companies and the Transferee Company. The registered offices of the companies are situated at common address. In order to integrate the fields of activities of the companies and for improving overall business efficiency, to streamline administration of the Companies and in the overall interest of future growth and diversification of the business of the Companies the present Scheme is proposed to amalgamate the Transferor Company with the Transferee Companies. The scheme will be complimentary t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on any stock exchange. g. By an order dated 26th November, 2019 in C.A.(CAA) No. 1571/KB/2019, this Tribunal made the following directions with regard to meetings of shareholders and creditors under section 230(1) read with section 232(1) of the Act:- Meetings dispensed: Meetings of the Equity shareholders of the Petitioner Nos. 1 and 2 for considering the Scheme were dispensed with in view of all such shareholders and 100% in value of such creditors having respectively given their consent to the Scheme by way of affidavits. h. Consequently, the Petitioners presented the instant petition for sanction of the Scheme. By an order dated 16th July, 2021, the instant petition was admitted by this Tribunal and fixed for hearing upon issuance of notices to the Statutory Authorities and advertisement of date of hearing. In compliance with the said order dated 16th July, 2021, the Petitioners have duly served such notices on the Central Government through Regional Director, Eastern Region, Registrar of Companies, West Bengal, Income Tax Assessing Authority along with the Chief Commissioner of Income Tax within whose jurisdiction the assessments of the Petitioner Companies, Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t means set of rights. Fractional share entitlement is share itself and payment of cash against such share results into buy back of shares. The scheme does not narrate that the provisions of Section 68 of the Companies Act 2013 shall be complied with and this clause is repugnant to the provisions of section 230(10) of the Act. Paragraph 4 of the Rejoinder Affidavit: We take leave of the Hon'ble NCLT bench to amend Part III clause 10(a) and 10(c) of said scheme based on the valuation report as on 30.09.2018, the appointed date in lieu of the objection filed by the Regional Director, Ministry of company affairs and further Part IV clause 9 of said scheme, the amended scheme after incorporating the changes in part III Clause 10(a), 10(c) and Part IV Clause 9 shall be served to all the concerned parties, Clause 10(a) Issue of Equity Shares to ANJALI TARDELINK PRIVATE LIMITED: Upon the Scheme becoming operative, in consideration of the transfer and vesting of ANJALI (Transferor Company) in KAMAYANI (Transferee Company) in terms of this Scheme, KAMYANI (Transferee Company) shall without any further application or deed (except as outlined elsewhere) issue and allot on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable by the Transferee Company then it will be paid as per the provisions of section 232(3)(i) of the Companies Act 2013 read with relevant applicable rules and other applicable provisions of the Act. It is clarified that the approval of the members of the Transferee Company to this scheme shall be deemed to be their consent/approval also to the alteration of the memorandum and Articles of Association of the transferee Company as may be required under section 13, 14, 61 and 64 of the Companies Act 2013 and other applicable provisions of the Companies Act, 2013 or as the Hon'ble NCLT, Kolkata Bench, directs. The Clause V of the Memorandum of Association of the Transferee Company shall, without any further act, instrument, or deed, be and stand altered, modified, and amended pursuant to the applicable provisions of the Act accordingly by deleting/substituting the existing Clause by the new clause. The Transferee Company, if required, may file the amended copy of the memorandum of Association and with the Registrar of companies, West Bengal with the Order of NCLT, under Section 230-232 and other applicable provisions of the Companies 'Act 2013 read with relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said affidavit, it is stated that the Transferee Company shall pay the applicable stamp duty on the transfer of immoveable properties from the Transferor Companies to it, if any. Paragraph 2(f) of the RD Affidavit: In compliance of Accounting Standard-14 or IND-AS 103, as may be applicable, the Transferee Company shall pass such accounting entries which are necessary in connection with the scheme to comply with other applicable Accounting Standards such as AS-5 or IND AS-8 etc. Paragraph 7 of the Rejoinder: With reference to Paragraph 2(f) of the said affidavit, it is stated that the petitioners shall comply with other applicable accounting standards, if any. Paragraph 2(g) of the RD Affidavit: The Tribunal may kindly seek the undertaking that this scheme is approved by the requisite majority of members and creditors as per section 230(6) of the Companies Act 2013 in meeting duly held in terms of section 230(1) read with sub-sections (3) to (5) of section 230 of the said Act and the Minutes thereof are duly placed on record. Paragraph 7 of the Rejoinder: With reference to Paragraph 2(g) of the said affidavit, it is stated that the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Transferor Companies be transferred from the said Appointed Date, without further act or deed, to Transferee Company and shall, the same shall pursuant to section 232(4) of the Companies Act, 2013, be transferred to and become the debts, liabilities, duties and obligations of the Transferee Company; iv. All employees of the Transferor Companies to be transferred to the Transferee Company; v. All proceedings and/or suit and/appeals now pending by or against the Transferor Companies shall be continued by or against Transferee Company, as provided in the Scheme; vi. The Transferee Company shall issue and allot shares to the shareholders of the Transferor Companies, the shares in the Transferee Company in accordance with the Scheme as amended by para 4 of the rejoinder affidavit affirmed on 15th December, 2021, and filed before this Tribunal. The Transferee Company shall ensure that there is no deviation in this regard, vii. Upon the Scheme being effective, the Transferor Companies shall stand dissolved without winding up from the effective date, viii. Leave is granted to the petitioners to file the Schedule of Assets and liabilities of the Transferor Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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