DLF Golf Resorts Limited Vs

Subrata Kumar Dash, Member (Technical)

CA No. 46/2023

The present application has been filed by Petitioner Companies for placing on record certain documents and to sanction the scheme of Amalgamation. The same are taken on record subject to exceptions. Thus, CA No. 46/2023 is allowed and disposed of accordingly.

CP (CAA) No.71/Chd/Hry/2022

This is a joint Second Motion Petition filed by the Petitioner Companies namely; DLF Golf Resorts Limited (Transferor Company No.1), DLF Homes Services Private Limited (Transferor Company No.2) and DLF Recreational Foundation Limited (Transferee Company) for the sanction of Scheme of amalgamation (for brevity ‘Scheme’) under Sections 230-232 of the Companies Act, 2013 (for short to be referred hereinafter as the ‘Act’) in terms of Rule 16 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 (for brevity, ‘Rules’).

The Petitioner Companies have prayed for sanctioning of the Scheme of Amalgamation amongst the respective companies. The said Scheme of Amalgamation is attached as Annexure– P1 of the petition.

The first motion application seeking directions for dispensing with the requirement of the convening the meetings of the Equity Shareholders, Debenture Holders, Secured and Unsecured Creditors of the Applicant Companies was filed before this Tribunal vide Company Application No. CA (CAA) No. 36/Chd/Hry/2022 and based on such application necessary directions were issued on 07.09.2022. In the order dated 07.09.2022, the meetings of Equity Shareholders, Debenture Holders, Secured Creditors and Unsecured Creditors of the Applicant companies were dispensed with for the reasons mentioned in the aforesaid order.

The main object, date of incorporation, authorized and paid-up share capital and the rationale of the Scheme have been discussed in detail in the order dated 07.09.2022

In the second motion petition proceedings, certain directions were issued by this Tribunal vide order dated 30.09.2022 and the same were complied by an affidavit of compliance filed vide diary No.02258/01 Dated 05.12.2022. The petitioner companies have made newspaper publications in "Financial Express" (English) and "Jansatta" (Hindi) both Delhi/NCR Edition on 16.11.2022 and the original copies of the newspapers were attached as Annexure-A3 to the aforesaid affidavit. It was also stated in the affidavit that copies of notices were served upon the Regional Director, Northern Region, Ministry of Corporate Affairs, New Delhi, Registrar of Companies, N.C.T. of Delhi and Haryana, Official Liquidator attached to High Court of Punjab and Haryana and Income Tax Department, through Nodal Officer-Principal Chief Commissioner of Income Tax Aaykar Bhawan, Sector-17E, Chandigarh. Copies of the covering letter along with postal receipts and tracking reports showing service of notices have been attached as Annexure-A2 of the affidavit.

It has also been deposed in the aforesaid affidavit that pursuant to publications in the newspaper neither the petitioner companies nor their counsel received any objections relating to the present Scheme from any stakeholders on the general public at large, till date.

In response to the abovementioned notices, the statutory authorities have furnished their replies.

8.1. Registrar of Companies(RoC)/Regional Director

8.1.1. The Registrar of Companies (RoC) has filed its report along with the report of the Regional Director (RD) stating that the ROC in its report dated 28.11.2022 has raised certain observations which are reiterated in the Para 10 of Regional Director’s Report with regard to non-payment of certain statutory dues and the comments made by the Auditor thereon. It is prayed by ROC to direct the Transferee Company to comply with the provisions of Section 232(3)(i) of the Companies Act, 2013. The Petitioner Companies have submitted reply dated 29.11.2022 answering to the queries raised by the Registrar of Companies. In Para 11 of the Regional Director’s report, it has been stated that the Petitioner Companies are the subsidiaries of DLF Limited and there will be no change in the shareholding pattern of the respective holding companies. Therefore, the present Scheme is drawn in line with the requirement of the provisions of Section 230-232 of the Companies Act, 2013 and the petitioner Companies may be directed to comply with the provisions of Section 232(3)(i) of the Companies Act, 2013.

8.1.2. The Petitioner Companies have filed short note by Diary No. 02258/5 dated 10.04.2023 wherein it has been stated that the Registrar of Companies have made general observation with regard to the non-payment of PF dues and the company has filed an Appeal against the said demand and the matter is still pending with the EPF, Regional Office, Gurugram for the adjudication. As per the Scheme, all the pending litigations against the Transferor Companies shall not be abated and the Transferee Company shall bear the burden and reap the benefits of any legal or other proceedings initiated or against the Transferor Companies.

8.1.3. Thus, no adverse observation can be inferred from the report of the Regional Director/Registrar of Companies.

8.2. Official Liquidator

8.2.1. The Official Liquidator has filed his report vide Diary No.02258/3 dated 05.01.2023. The Official Liquidator in its report has reproduced the information on the incorporation of the Petitioner Companies, their capital structure, shareholding, Share Exchange Ratio Proposed in the Scheme etc. It is stated that the Transferor Companies will wind up without going through the process of winding up.

8.2.2. Thus, no adverse observation can be inferred from the report of the Official Liquidator.

8.3. Income Tax Department

8.3.1. The Income Tax Department filed its report vide Diary No.02258/2 dated 13.12.2022 has stated that there is no demand outstanding against the Petitoner Companies and there is no Scrutiny assessment is pending. The Income Tax Department has no objection to the said scheme.

8.3.2. It is submitted by the Petitioner Companies in the short note by Diary No. 02258/5 dated 10.04.2023 wherein it has been stated that the Transferee Company undertakes on behalf of all the Transferor Companies to take care of all the liabilities/proceedings/demands in accordance with the law. The carry forward of accumulated losses shall be subject to the applicable provisions of Income Tax including Section 72A and Section 79 of the Income Tax Act, 1961.

8.3.3. Thus, the Income Tax Department in its report has made no adverse observations against the proposed Scheme of Amalgamation.

The certificate of the Statutory Auditors with respect to the Scheme between Applicant-Companies to the effect that the accounting treatment proposed in the Scheme is in compliance with applicable Indian Accounting Standards (Ind AS) as specified in Section 133 of the Act, read with rules thereunder and other Generally Accepted Accounting Principles was filed as Annexure P 15 of the petition.

We have heard the learned Senior Counsel for petitioner companies and learned Senior Standing Counsel for the Income Tax Department and perused the record carefully.

In the context of the above discussion, the Scheme contemplated between the petitioner companies, appears to be prima facie in compliance with all the requirements stipulated under the relevant sections of the Companies Act, 2013. In the absence of any objections before us and since all the requisite statutory compliance have been fulfilled, this Tribunal sanctions the scheme of Amalgamation appended as “Annexure-P-1” with the company petition.

Notwithstanding the submission that no investigation is pending against the petitioner companies, if there is any deficiency found or, the 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 the law, against the concerned persons, directors and officials of the petitioners.

While approving the scheme as above, it is clarified that this order should not be construed as an order in any way granting exemption from payment of stamp duty, taxes or any other charges, if any, payment is due or required in accordance with law or in respect to any permission/compliance with any other requirement which may be specifically required under any law.

THIS TRIBUNAL DO FURTHER ORDER:

i. That all the properties, rights and powers of the Transferor Companies be transferred, without further act or deed, to the Transferee Company and accordingly, the same shall pursuant to Sections 230 to 232 of the Companies Act, 2013, be transferred to and vested in the Transferee Company for all the estate and interest of the Transferor Companies but subject nevertheless to all charges now affecting the same;

ii. That all the liabilities and duties of the Transferor Companies transferred, without further act or deed, to the Transferee Company and accordingly the same shall pursuant to Sections 230 to 232 of the Companies Act, 2013, be transferred to and become the liabilities and duties of the Transferee Company;

iii. All benefits, entitlements, incentives and concessions under incentive schemes and policies that the Transferor Companies is entitled to include under Customs, Excise, Service Tax, VAT, Sales Tax, GST and Entry Tax and Income Tax laws, subsidy receivables from Government, grant from any governmental authorities, direct tax benefit/exemptions/deductions, shall, to the extent statutorily available and along with associated obligations, stand transferred to and be available to the Transferee Company as if the Transferee Company was originally entitled to all such benefits, entitlements, incentives and concessions;

iv. All contracts of the Transferor Companies which are subsisting or having effect immediately before the Effective Date, shall stand transferred to and vested in the Transferee Company and be in full force and effect in favour of the Transferee Company and may be enforced by or against it as fully and effectually as if, instead of the Transferor Companies, the Transferee Company had been a party or beneficiary or obliged thereto;

v. That the employees of the Transferor Companies shall be transferred to the Transferee Companies in terms of the 'Scheme';

vi. That the Appointed Date for the scheme shall be 01.04.2021 as specified in the scheme;

vii. That the proceedings, if any, now pending by or against the Transferor Companies be continued by or against the Transferee Company;

viii. That the proceedings, if any, now pending by or against the Transferor Companies be continued by or against the Transferee Company;

ix. That the assessment under the Income Tax Act will be in accordance with the provisions of Section 170 (2A) of the Income Tax Act, 1961;

x. That the fee, if any, paid by the Transferor Company on its authorized capital shall be set off against any fees payable by the Transferee Company on its combined authorized capital subsequent to the sanction of the 'Scheme';

xi. That the Transferee Company shall file the revised memorandum and articles of association with the Registrar of Companies, NCT of Delhi & Haryana for the enhancement of authorized capital of the Transferee Company after setting off the fees paid by the Transferor Companies;

xii. That the Petitioner Companies shall, within 30 days after the date of receipt of this order, cause a certified copy of this order to be delivered to the Concerned Registrar of Companies for registration and on such certified copy being so delivered, the Transferor Company shall be dissolved without undergoing the process of winding up. The concerned Registrar of Companies shall place all documents relating to the Transferor Company registered with him on the file relating to the said Transferee Company, and the files relating to the Transferor Company and Transferee Company shall be consolidated accordingly, as the case may be; and

xiii. That any person interested shall be at liberty to apply to this Tribunal in the above matter for any directions that may be necessary.

As per the aforesaid directions, formal orders in Form No. CAA-7 of Companies (Compromises, Arrangements and Arrangements) Rules, 2016 be issued after the filing of the Schedule of Properties by the petitioners within three weeks from the date of receiving a certified copy of this order.

All the concerned Regulatory Authorities are to act on a copy of this order annexed with the Scheme of Arrangement duly authenticated by the Registrar of this Bench.

The Company Petition CP (CAA) No. 71/Chd/Hry/2022 is allowed and disposed of accordingly.