1. This joint petition has been filed by four petitioner Companies under Section 230-232 of the Companies Act, 2013 seeking sanction of the proposed scheme of Amalgamation of M/s. City gold Logistic Limited, the Petitioner/Transferor-I Company, M/s. Himalaya Darshan Developers (Gujarat) Private Limited, the Petitioner/Transferor-II Company, M/s. Suryanagari Securities and Investment Limited, the Petitioner/Transferor-II Company with M/s. Dhartivarsha Estate Holders Private Limited, the Petitioner/Transferee Company the scheme shall be effective from the date of appointment as mention in the scheme.
2. Upon coming into effect of the scheme, the entire business of the Transferor Companies together with all its rights and obligations as per the Scheme shall without any further act or deed be transferred to and vested in the Transferee Company under Sections 230-232 of the Companies Act, 2013 and the Rules made thereunder.
3. The Board of Directors of the Petitioner Companies resolved in their respective meetings dated 20th September, 2019 subject to such approvals of the equity shareholders, creditors and subject to such directions and sanctions by this Tribunal or any other competent authority as may be required under law and subject to such permission of the Central Government and other authorities that may be necessary, the amalgamation be implemented on the broad basis referred to in the Scheme.
4. The Petitioner Companies had filed a joint Company Application bearing CA(CAA) No. 5 of 2020 before this tribunal, sought directions for dispensation for holding and conducting the meetings of the Equity Shareholders of all the Petitioner Companies and the dispensation of the Meetings of Unsecured Creditors of the Petitioner/Transferor-II Company and Petitioner/ Transferor-III Company. It was stated in the aforesaid application that the Petitioner/ Transferor-II Company and Petitioner/ Transferor-III Company does not have any Secured Creditors. It was also stated in the aforesaid application that Petitioner/ Transferor-I Company and Petitioner/Transferee Company does not have any Creditors either Secured or Unsecured.
5. This Tribunal allowed the Company Application vide order dated 17th June, 2020, inter alia, granted dispensation from holding of the meetings of Equity Shareholders of all the Petitioner Companies, Unsecured Creditors of both the Petitioners Companies based on consent affidavits. This Tribunal further directed to the Petitioner Companies to issue a notice in Form No. CAA 3 along with a copy of Scheme of Amalgamation and disclosures mentioned in Rule 6 of the Rules to (i) to Central Government, Regional Director, North Western Region, Ahmedabad; (ii) the Registrar of Companies, Gujarat (iii) Concerned Income Tax Authorities, (iv) the Official Liquidator, Gujarat (only for Petitioner/ Transferor Companies) asking them to make representations if any, within 30 days from the date of receipt of such notice, and in case no representation is received by this Tribunal within the stipulated period of 30 days, it would be presumed that the authorities have no representation to make.
6. In compliance with the order dated 17th June, 2020 of this Tribunal, the petitioner companies sent the notice of hearing to the (i) Regional Director North West Region and (ii) Registrar of the Companies (iii) Official Liquidator, and (iv) The Concerned Income Tax Authorities and on 21.07.2020. The Petitioner Companies have attached an acknowledgement of service dated 17.07.2020 along with this application.
7. Thereafter, the Petitioner Companies have filed the joint Petition bearing CP(CAA) No. 67 of 2020, before this tribunal seeking sanction of the Scheme. This Tribunal by an order dated 8th December 2020, admitted the petition and directed that notice of hearing should be advertised in English newspapers viz. English daily, “Financial Express”, Ahmedabad Edition and Gujarati daily, “Ahmedabad Express”, Daily Ahmedabad Edition at least 10 days before the date of hearing of the Petition, calling for objections, if any, on or before the date of hearing. Further, directions were also issued to the Petitioner Companies to serve notice of hearing of the Petition upon the statutory authorities to (i) Regional Director, North Western Region, (ii) Registrar of Companies, Gujarat (iii) Concerned Income Tax Authorities and (iv) Official Liquidator.
8. In compliance, with the order dated 8th December, 2020 of this tribunal, the petitioner companies sent the notice of hearing to the aforesaid statutory authorities on 23rd January, 2021 and publication were also been made in the newspapers as directed by this tribunal vide on 21st January, 2021. The Petitioner Companies have also filed an affidavit of service along with a publication report on 25.01.2021 before this Tribunal.
9. In response to the notice of the Petition, The Regional Director, (NWR), Ahmedabad, (hereinafter referred to as “RD”) filed its representation on 30th September, 2020. The RD made the observations as under;
(i) The RD made the first observation concerning enhancement of share capital of Transferee Company on the scheme come into effect, the authorized share capital of the Petitioner Transferee Company will be enhanced to INR Rs.13,50,00,000/-, hence, the RD prayed from this Tribunal to direct the Petitioner Transferee Company to pay the stamp duty and registration fee on the enhanced share capital if any.
(ii) The second observation made by RD, that they have received a letter dated 24 July 2020 from the Income Tax Department, Ahmedabad in respect of Suryanagari Securities and Investments Limited, Petitioner/ Transferor-III Company for pending outstanding payment of Rs.1,44,990/-, Rs.11,991/- and Rs.18,673/- for the A.Y. 1998-99, 1999-00 and 2000-01 respectively. Hence, The RD prayed from this Tribunal to direct the Petitioner/ Transferor-III Company to clarify in respect of the demand raised by the Income Tax Department.
(iii) The third observation made by ROC, concerning transferor companies and transferee company are engaged in different business activities and the main objects mentioned under clause 3A in MOA of the Companies are different from each other. Hence, The RD prayed from this Tribunal to direct the Petitioner Transferee Company to comply with Section 13 of the Act and file the MGT-14 e-form as to require for alteration of Main objects of the transferee company along with requisite fees.
10. In response to the notice, the Official Liquidator filed is observations on 16th September 2020, wherein, the OL has not made any adverse observations. However, the OL prayed from this Tribunal to direct the Petitioner/ Transferor Companies to preserve its books of accounts, papers and records and shall not be disposed of without prior permission of the Central Govt. as per the provisions of Section 239 of the Companies Act, 2013. The OL further prayed from this Tribunal may direct the Petitioner/ Transferee Company to comply with all the applicable provisions of law and shall not to absolve from any of their pending statutory liabilities.
11. In response to the representation made by the RD and OL, Petitioner Companies have filed affidavit cum undertaking to their response to all the observations of the Regional Director as well as the Official Liquidator. The reply of both observation of statutory Authorities as under;
(i) In response to the observation of the RD in respect to the pending outstanding demand of the Income Tax Department, the Petitioner/ Transferor-III Company has submitted vide separate Affidavit 10.03.2021 that outstanding dues of Income Tax Department has been paid, and at present no such dues remain to be paid for the Income Tax Department. The same has also informed to the RD. A copy of the e-receipt for tax payment has also been annexed with the said affidavit.
(ii) In response to the observation of the RD in respect to the payment of stamp duty and registration on enhanced share capital of the petitioner Transferee Company, the Petitioner Transferee has undertaken to pay such differences of the amount of fees as due and payable on account of enhanced Authorized Capital and undertakes to comply with the provisions of Section 232(3)(i) of the Companies Act, 2013 if any arise.
12. In light of the above, this Tribunal is of the view that the observation made by the Regional Director and Official Liquidator stands satisfied.
13. The Petitioner companies submitted that no investigation has been instituted or is pending concerning the Petitioner Companies under Chapter XIV of the Act or under the corresponding provisions under Section 210 to 226 Companies Act, 2013 as well as Section 235 to 251 of the Companies Act, 1956. Further, no proceedings are pending under the Companies Act, 2013 or under the corresponding provisions of the Companies Act, 1956 against the Petitioner Companies.
14. It was also submitted that none of the companies were Non-Banking Financial Company (“NBFC”). Hence, consent of the Reserve Bank of India (“RBI”) is also not required.
15. It has been stated by the learned Advocate for the Petitioner Companies that the scheme was not against the public interest. It will not adversely impact any creditors, whether secured or unsecured, of the petitioner companies.
16. In compliance with the proviso of sub-section (7) of Section 230 of the Companies Act, 2013, certificates from the Chartered Accountants dated 03.10.2019 confirm that the accounting treatment as proposed under the Scheme conforms with Accounting Standards prescribed under Section 133 of the Companies Act, 2013.
17. Heard the Ld. The counsel of the petitioner companies and gone through the entire records and facts and circumstances of the case. It appears that the requirements of the provisions of Sections 230 to 232 of the Companies Act, 2013 are satisfied. The Scheme appears to be genuine and bona fide and in the interest of the shareholders and creditors. Hence, the present petitioner is allowed with following directions;
1. The scheme of Amalgamation, which is annexed herewith as Annexure-A is hereby sanctioned and it is declared that the same shall be binding on the Petitioner Companies i.e., M/s. City gold Logistic Limited, M/s. Himalaya Darshan Developers (Gujarat) Private Limited, M/s. Suryanagari Securities and Investments Limited and M/s. Dhartivarsha Estate Holders Private Limited, their Equity shareholders, creditors and all concerned under the Scheme.
II. All the property, rights, and powers of the Transferor Companies specified in the schedule annexed herewith as Annexure-B and all the other property, rights, and powers of the transferor company be transferred without further act or deed to the transferee company and accordingly the same shall according to section 232 of the Act, be transferred to and vested 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 [other than (here set out any charges which under the compromise or arrangement are to cease to affect)].
III. It is also directed to the transferee company to comply with the provisions of Section 13 of the Companies Act, 2013 for alteration of object of the Company, if not complied.
IV. It is declared that the Petitioner Transferor Companies i.e. M/s. City gold Logistics Limited, M/s. Himalaya Darshan Developers (Gujarat) Private Limited, M/s. Suryanagri Securities and Investment Limited stands dissolved without winding up proceedings.
V. All the liabilities and duties of the Transferor Companies be transferred without further act or deed to the transferee company and accordingly the same shall be transferred to and become the liabilities and duties of the transferee company.
VI. All proceedings now pending by or against the transferor companies be continued by or against the transferee company.
VII. The Transferor Company shall within thirty days from the date of the receipt of this order, cause a certified copy of this order to be delivered to the Registrar of Companies for registration and on such certified copy being so delivered the transferor companies shall be dissolved and the Registrar of Companies shall place all documents relating to the transferor Companies and registered with him on the file kept by him concerning the transferee company and the files relating to the said all companies shall be consolidated accordingly.
VIII. It is further directed that the Petitioner Companies shall comply with Rule 17(2) of Companies (Compromise, Arrangements, and Amalgamations) Rules, 2016 concerning the filing of the order, for confirmation of the Scheme in Form INC-28 with the Registrar of Companies.
IX. The legal fees and expenses of the office of the Regional Director are quantified to the tune of Rs.10,000/- (Rupees Ten Thousand) in respect of the Scheme of Amalgamation for both the Petitioner Companies.
X. The legal fees and expenses of the office of the Official Liquidator are quantified to the tune of Rs.10,000/- (Rupees Ten Thousand) in res
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pect of the Scheme of Amalgamation for the Petitioner Transferor Companies. XI. The aforementioned legal fees and expenses to the Regional Director and Official Liquidator shall be paid by the petitioner Transferee Company. XII. All concerned authorities to act on a copy of this order along with the Scheme of Amalgamation duly authenticated by the Registrar of this Tribunal. The Registrar of this Tribunal shall issue an authenticated copy of this Order along with Scheme of Amalgamation immediately. XIII. The Transferee Company is directed to lodge a copy of this Order and the approved Scheme attached herewith as Annexure “A” duly authenticated by the Registrar of this Tribunal, with the concerned Superintendent of Stamps, for adjudication of stamp duty, if any, within 60 days from the date of the Order. XIV. The Transferee Company is directed to file a copy of this Order along with a copy of the Scheme of Amalgamation duly authenticated by the Registrar of this Tribunal, with the Registrar of Companies, Ahmedabad electronically, along with Form INC-28 in addition to physical copy as per relevant provisions of the Act. XV. Any persons interested shall be at liberty to apply to This Tribunal in the above matter for any direction (s) that may be necessary. 18. With the above directions the present petition bearing No. CP (CAA) No. 67 of 2020 In CA (CAA) No. 05 of 2020 disposed of. No order as to costs.