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TMI Blog2022 (6) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... the Companies Act, 1956 or the Companies Act, 2013 and no proceedings against the petitioner companies for oppression or mismanagement have been filed before this Hon'ble Tribunal or erstwhile Company Law Board - Notwithstanding the above, if there is any deficiency found 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 persons concerned and also the directors and officials of the petitioners. The scheme is approved - company petition are allowed. - CP (CAA)/6, 7/(CHE)/2021 in CA/344 and 345/CAA/2020 - - - Dated:- 1-6-2022 - S. Ramathilagam , J. (Member (J)) And Anil Kumar B. , Member (T) For the Appellant : A. R. Ramanathan , Advocate ORDER S. Ramathilagam , J. (Member (J)) 1. Under Consideration are two separate Applications filed by the Petitioners above named for the purpose of the approval of the Composite Scheme of Amalgamation (hereinafter referred to as the 'SCHEME') as contemplated between the Petitioner Companies viz. M/s. Vaiduriya Hotels Private Limited (1st Petitioner/Transferor Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rationale and circumstances that have necessitated the proposed scheme are as follows: 4.1.1 The Transferor Company is inter alia engaged in the business of Hotels, Restaurants, Lodges and holiday resorts etc, and Transferee Company is also inter alia engaged in the same business and as such both companies having identical synergies in operations would stand benefited by proposed amalgamation. 4.1.2 By proposed amalgamation, better and efficient infrastructure, amenities and facilities could be provided to the ever changing needs of customers and guests in the said hotel business. It would also pave way for expansion in the hotel business. 4.1.3 The combine entity by virtue of having a strong financial and managerial resource base and being capable of investing in expansion of business with a view to optimally utilise the capacity created over a period of time with a view to be an integrated position to achieve the objects of the amalgamation. 4.1.4 Both the companies are owned and controlled by same group of persons i.e. common shareholders and the proposed amalgamation will enable both the companies to complement each other in the various areas of expertise con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective Companies. Affidavits of Service dated 05.03.2021 stating compliance of the directions of the Tribunal was filed. Pursuant to the service of notice of the petition the following statutory authorities have responded as follows; 6. Statutory Authorities 6.1. Regional Director 6.1.1. The Regional Director, (hereinafter referred to as 'RD') Chennai to whom the notice was issued on 22.02.2021, had filed his Report dated 09.02.2021 before this Tribunal. It was observed that as per the report of RoC, Coimbatore, the Petitioner Companies are regular in filing their statutory returns. Further, it is also stated in the report that no prosecution/Inspection or Investigation is pending against the Petitioner Companies. However, the RD in para 3 has made an observation, which is extracted hereunder: 3) It is further submitted that as per clause 1.2 of part I of the scheme, the appointed date is 01.04.2019, which is not acceptable, as it is ante-dated beyond a year and is not in accordance with section 232(6) of the Companies Act, 2013. Hence, it is prayed that the Hon'ble NCLT, Chennai may direct the Company to revise its appointed date or may determine an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period from 15.03.2020 till 28.02.2022 shall stand excluded on account of pandemic as per the Order of Hon'ble Supreme Court dt. 10.01.2022 passed in Suo moto Writ Petition (civil) No. 3 of 2020. iv. It is submitted that the Regional Director would not have had the opportunity to note the date of filling of the Company Applications by the Petitioners on 20.02.2022 and hence probably the said observations are being made out of sheer oversight without any intention. v. The copy of above said General Circular No. 09/2019 and proof to substantiate the date of filing the Company Applications within one year from Appointed Date issued by the Registry of this Hon'ble Tribunal is filed herewith as Annexure P 1 and P2 respectively. vi. The Regional Director has not made any other observation as evident from the report. vii. In the light of the above submissions made by the Petitioners, the said only observation made by the Regional Director does not factually survive for consideration and deserves to be rejected. 6.2. Official Liquidator 6.2.1. The Official Liquidator (In short, 'OL') in its report dated 15th April 2021, submitted that M/s. A.N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rily dues from the transferor or transferee or any other person who is liable for payment of such tax dues the said protection be afforded is granted. With the above observations, the petition stands allowed and the scheme of amalgamation is sanctioned. 6.4. OTHER STATUTORY AUTHORITIES 6.4.1. It is submitted by the Learned Counsel for the Petitioners that the equity shares of the Petitioner Companies are not listed with the stock exchanges, thus the Petitioner Companies do not require compliance of Listing Agreement or SEBI Rules/Regulations. 6.5. Accounting Treatment 6.5.1. The Learned Counsel for the Petitioner Companies have stated that the Statutory Auditors of the Petitioner Companies have examined the Scheme and certified that the Petitioner Companies have complied with provisions of the Companies Act, 2013 and the Accounting Treatment contained in the proposed Scheme of Amalgamation is in compliance with the Applicable Indian Accounting Standards. The Petitioner Companies have individually filed the Auditor's Certificate in relation to the accounting treatment proposed in the Composite Scheme being in compliance with the Accounting Standards notified unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies Act, 2013 without further act or deed be transferred to the Transferee Company and accordingly the same become the liabilities and duties of the Transferee Company. (iii) That all proceedings now pending by or against the Transferor Company be continued by or against the Transferee Company. (iv) That all the employees of the Transferor Company in service on date immediately preceding the date on which the Scheme finally take effect shall become the employees of the Transferee Company without any break or interruption in their service. (v) The Appointed Date of the said Composite Scheme shall be 1st April 2019 as specified in the scheme. The Effective Date shall be within 45 days from the date of this Order. (vi) That the Transferee Company shall file the revised Memorandum and Articles of Association with the Registrar of Companies concerned and further make the requisite payments of the differential fee (if any) for the enhancement of authorized capital of the Transferee Company. (vii) That the Transferee Company do without further application allot to such members of the Transferor Companies, such notice of dissent, as is required by Clause 10.1 of Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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