EVERSHINE It Infrasoft Pvt. Ltd. vs SILVERSTONE Infrastructure Pvt. Ltd.

The present petition has been filed by the companies above named for the purpose of the approval of the scheme of arrangement, as contemplated

between the companies by way of amalgamation of the Transferor Company / Petitioner Company namely Evershine IT Infrasoft Private Limited

with the Transferee/ Petitioner Company namely Silverstone Infrastructure Private Limited, under Section 230 to 232 and other applicable provisions

of the Companies Act, 2013( for brevity 'the Act') read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 (for brevity

the Rules') pursuant to the Scheme of Amalgamation (hereinafter referred to as the 'SCHEME') proposed between the petitioners and the said

Scheme is also annexed as Annexure ""P/9"" to the petition.

From the records, it is seen that the First Motion seeking directions for dispensing with the requirement of convening the meeting of the Equity

Shareholders and Unsecured Creditors of the Petitioner Companies was filed before this Tribunal vide CA (CAA) No. 100 (ND) 2018 and based on

such joint application moved under Sections 230-232 of the Companies Act, 2013, directions were issued by this Tribunal, wherein the meeting of the

Equity Shareholders and the Unsecured Creditors of both the companies was directed to be dispensed with vide order dated 11.09.2018. It was also

represented that there were no secured creditors of the Petitioner Companies, therefore, the necessity of convening the meeting did not arise.

Under the circumstances, the Petitioner Companies filed their joint petition for sanction of the Scheme of Amalgamation before this Tribunal,

subsequent to the order of dispensation/convening of the meeting in relation to both the Transferor Company and Transferee Company. On

08.10.2018 this Tribunal ordered notice of the petition in the Second Motion moved by the Petitioner Companies in connection with the scheme of

amalgamation, to the sectoral regulators. The Petitioners were also directed vide said order to carry out publication in the newspapers ""Business

Standard"" (English) and ""Jansatta"" (Hindi).

The petitioners, it is seen from the records have filed an affidavit on 30.11.2018 in relation to the compliance of the order passed by the Tribunal as

noted above and a perusal of the same discloses that the petitioners have effected the paper publication as directed by the Tribunal in one issue of the

'Business Standard' in English edition and `Jansatta' in Hindi edition on 18.11.2018. Further, the notices have been served to The Regional Director

(NR, MCA), Registrar of Companies (NCT of Delhi & Haryana), Office of the Official Liquidator, and Deputy Commissioner of Income Tax

Department in compliance with the directions passed by this Tribunal and in proof of the same acknowledgements/receipts have also been enclosed.

That the Regional Director, Northern Region, MCA to whom notice was issued has made its observation filed on 04.01.2019 before this Tribunal,

and upon perusal of the same it is observed that the Regional Director does not have any adverse observation/ remark against the Scheme of

Amalgamation between the petitioner companies. It is also reflected in the Representation Affidavit filed by RD at paragraph 10 which is to the

following effect;

that the Registrar of Companies vide para 32 of its report has made observations that ""Refer to clause 12 of the proposed Scheme, the Transferee

Company may be advised to comply with the provisions of section 232 (3) (8) (i) and 233(11) r/w (12) of the Act.

The Petitioner has filed a detailed rejoinder in response to the above observation of the RD, by way of an affidavit filed on 22.02.2019 , undertakes to

comply with the provisions of Section 232(3)(i) and provisions of section 233 (11) r/w (12) of the Companies Act, 2013 and willing to pay all fees

including stamp duty etc. to respective authorities for the same.

That the report of the Official Liquidator filed on 19.12.2018 has been placed on record which states that the Official Liquidator has not received

any complaint against the proposed scheme of Amalgamation from any person/party interested in the scheme. Hence, no objections has been made in

the report submitted by the Official Liquidator.

Further, the department of Income Tax has also filed its report on 29.11.2018 and 14.01.2019 in relation to the Petitioner Companies, and upon

perusal of the same it is observed in relation to the Transferor Company, that the Income Tax does not have any adverse observation/ remark against

the Scheme of Amalgamation between the petitioner companies. In relation to the Transferee Company, in its report dated 14.01.2019 has observed

that as per ITD system Demand of Rs. 55,85,200/- for the A.Y. 2015-2016 on account of penalty levied u/s. 271(1) ( c) is outstanding against the

aforesaid company. However, no objections has been made in the report submitted by the Income Tax in relation to the scheme.

The petitioner companies have filed a rejoinder to the observations of the Income Tax vide diary no. 0710200434552018 dated 11.02.2019, has

represented that the Income Tax department has assessed the Income Tax for the A.Y. 2015-16 u/s 143 (3) of the Income Tax Act 1961 at NIL

demand, and has wrongly levied a penalty of Rs. 55,30,971 vide order dated 31.05.2018 u/s 271 (1) ( c ) of the Income Tax Act 196. That the

petitioner company 2 has filed an appeal being Appeal NO 10069/ 2018-19 before the Commissioner (Appeal) which is still pending.

It is also pointed out by Ld. Counsel for the Petitioners that vide order dated 14.03.2019 that there is no such demand pending as in the appeal filed

in appeal no. 10069/18-19, Commissioner of Income Tax (Appeals) New Delhi has set aside the demand as made against the Transferee Company

which is not disputed/ objected by Ld. Standing Counsel for Income Tax. In any event paragraph 13 infra provides the savings in relation to taxes as

well, and in view of the Transferee Company not being dissolved is entitled to proceed against it in accordance with law, if any amount is found due

and payable.

That the Petitioner Companies have complied with proviso to Section 230 (7) / Section 232 (3) by filing the certificate of the Company's Auditor in

relation to compliance with the Accounting Standards 14, the applicable accounting standard notified by the Central government under the Companies

Act, 2013 and the rules framed there under.

The Petitioner companies have submitted that no investigation proceedings are pending against them under section 235 to 251 of the Companies

Act, 1956 or under Sections 210 to 226 of the Companies Act, 2013.

In view of absence of any other objections having been placed on record before this Tribunal and an affidavit been filed by the Petitioner

companies in relation to no objections been received neither by the Petitioner Companies nor the Authorized Representative and since all the requisite

statutory compliances having been fulfilled, this Tribunal sanctions the scheme of amalgamation annexed as Annexure ""P/9"" with the Company

Petition as well as the prayer made therein.

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 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:

(1) That all the property, rights and powers of the Transferor Company be transferred without further act or deed to the Transferee company and

accordingly the same shall pursuant to section 232 of the Act, be transferred to and vest 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;

(2) That all the liabilities and duties of the Transferor Company be transferred without further act or deed to the Transferee company and accordingly

the same shall pursuant to section 232 of the Act, be transferred to and become the liabilities and duties of the Transferee company;

(3) That all proceedings now pending by or against the Transferor Company be continued by or against the Transferee company;

(4) 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;

(5) That as provided in the scheme at para 10.4, that the Transferee Company shall not allot any share to the members holding shares of the

Transferor Company as the Transferor Company is the wholly owned subsidiary of the Transferee Company, and therefore neither any valuation

report on shares of the companies nor share exchange ratio has been obtained and in the circumstances it shall stand cancelled.

(6) That Transferor Company shall within thirty days of 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 Company shall be dissolved and the Registrar of

Companies shall place all documents relating to the Transferor Company and registered with him on the file kept by him in relation to the Transferee

company and the files relating to the said both companies shall be consolidated accordingly;

(7) That any person interested shall, be at liberty to apply to the Tribunal in the above matter for any directions that may be necessary.