Hanuman Textile Manufacturing And Investment Company Limited And Ors. vs Pravasi Enterprises Limited

Narender Kumar Bhola, Member (T)

The present petition has been filed by the Petitioner Companies above named for the purpose of the approval of the Scheme of Amalgamation, as contemplated between the Companies and its shareholders by way of Amalgamation of Hanuman Textile Manufacturing and Investment Company Limited (Transferor Company 1), Sunrise Manufacturing Company Limited (Transferor Company 2) and Sterling Oxide Limited (Transferor Company 3) with and into the Pravasi Enterprises Limited (Transferee Company) under Section 230 to 232 and other applicable provisions of the Companies Act, 2013 ( for brevity 'the Act1) read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 (for brevity 'the Rules') in relation to the Scheme of Amalgamation (hereinafter referred to as the 'SCHEME') proposed between the Petitioners and the said Scheme is also annexed as Annexure "1" to the petition.

From the records, it is seen that the First Motion seeking directions for dispensing directions for dispensation of the meeting of Shareholders, Secured and Unsecured Creditors of all the Petitioner Transferee Company was filed before this Bench vide Company Application (CAA) No. 145/PB/2018 and based on such application moved under Sections 230-232 of the Companies Act, 2013, meetings of shareholders, secured creditors and unsecured creditors of the Petitioner Companies were dispensed with vide order dated 16.10.2018 passed by this bench.

Thereafter, on 10.10.2019 the Petitioner Companies was directed to carry out publication in the newspapers "Business Standard" (English, Delhi edition) and "Business Standard" (Hindi, Delhi edition). In addition to the public notice, notices were directed to be served on the Regional Director (RD) (Northern Region), Official Liquidator (OL), Registrar of Companies (RoC), NCT of Delhi and Haryana, the Income Tax Department.

It is seen from the records that the Petitioner Transferee Company has filed an affidavit dated 19.11.2019 affirming compliance of the order passed by the Tribunal dated 10.10.2019. A perusal of the affidavit discloses that the Petitioner has effected the newspaper publication as directed in one issue of the "Business Standard" English edition as well as in "Business Standard" Hindi edition on 14.11.2019 in relation to the date of hearing of the petition. Further, the affidavit also discloses that copies of the petition have been duly served to the Registrar of Companies, Regional Director, Northern Region, Official Liquidator and Income Tax Department in compliance of the order and in proof of the same acknowledgement made by the respective offices have also been enclosed.

The OL has filed its report wherein no specific objection has been raised against the approval of the Scheme. It is submitted in the report that the Official Liquidator has not received any complaint against the proposed Scheme from any person/party interested in the Scheme in any manner and that affairs of the Petitioner Company do not appear to have been conducted in a manner prejudicial to the interest of its members or to public interest as per the provisions of the Companies Act, 2013 whichever is applicable.

The RD, Northern Region, MCA has filed its report wherein no specific objection has been raised against the approval of the Scheme. It is also reflected in the Representation Affidavit filed by RD at Para 9 which is to the following effect;

That at Paragraph 31 of the Report of the RoC it has been, inter alia, stated as under:

"1. Refer to Clause 13 of the proposed Scheme, the Transferee Company may be advised to comply with the provisions of Section 232 (3) (B) (i) and 233 (11) r/w (12) of the Act.

It has been observed that the respective Transferor and Transferee Companies have passed their Resolutions with regard to the proposed Scheme of Amalgamation on 02.07.2018. In this regard, it is submitted that in terms of the provisions of Section 117 (3) r/w 179 (3) of the Companies Act, 2013 these Companies are required to file such Resolution. However none of the said Companies have filled such E- Form on MCA-21 portal."

The Petitioner Companies have submitted that no investigation proceedings are pending against them under section 210 or any other applicable provisions of the Companies Act, 2013.

It is also submitted in the Petition that the appointed date of the Scheme shall be effective from Appointed Date i.e., 01.04.2018.

Certificate of Statutory auditor of the Petitioner Companies has been placed on record to the effect that Accounting Treatment proposed in the Scheme of Amalgamation is in conformity with the Accounting Standard notified by the Central Government as specified under the provisions of Section 133 of the Companies Act, 2013.

Upon perusal of the Scheme it is seen that Paragraph 7.1 of the Scheme talks about Tax Treatment and states that, 'Upon the Scheme becoming effective and with effect from the Appointed Date, all taxes, duties, cess payable by the Transferor Companies (including under IT Act, Customs Act, 1962; Central Sales Tax Act, 1956; Central Excise Act, 1944; State Sales Tax Act; Value Added Tax Act; Service Tax act and all other applicable Laws), accruing and relating to Transferor Companies from Appointed Date onwards, including but not limited to advance tax payments, tax deducted at source (TDS"), minimum alternate tax ("MAT"), any refund and interest due thereon on any credits, claims and exemptions shall, for all purposes be treated as advance tax payments, TDS, MAT, refund and interest due on any such credits, claims and exemptions or refunds, as the case may be, of Transferee company.'

Further, the Transferee Company has given an undertaking that it will pay the Income Tax Dues of all the Transferor Companies.

It has also been affirmed in the Petition that Scheme is in the interest of the Transferor Companies and the Transferee Company including their shareholders, creditors, employees and all concerned.

In view of the foregoing, upon considering the approval accorded by the members and creditors of the Petitioner Companies to the proposed Scheme and the report filed by the Regional Director, Northern Region, Ministry of Corporate Affairs, Official Liquidator and Income Tax Department and as there are no objection received from any quarter; there appears to be no impediment in sanctioning the present Scheme.

Consequently, sanction is hereby granted to the Scheme under Section 230-232 of the Companies Act, 2013.

The Petitioner Companies shall however remain bound to comply with the statutory requirements in accordance with law.

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 to the Scheme will not come in any way of action being taken, albeit, in accordance with law, against the concerned persons, directors and officials of the Petitioner.

While approving the Scheme as above, we further clarify that this order should not be construed as an order in any way granting the exemption from payment of stamp duty, taxes or any other changes, if any, and payment 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

That the Transferor Company 1, Transferor Company 2 and Transferor Company 3 shall stand dissolved without following the process of winding-up; and

That all the property, 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 Section 232 of the Companies Act, 2013, be transferred to and vest in the Transferee Company; and

That 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, pursuant to Section 232 of the Act, be transferred to and become the liabilities and duties of the Transferee Company; and

That all proceedings now pending by or against the Transferor Companies, be continued by or against the Transferee Company; and

That all the employees of the Transferor Companies, in service, on the date immediately preceding the date on which the Scheme takes effect, i.e. the effective date shall become the employees of the Transferee Company on such date without any break or interruption in service and upon terms and condition not less favorable than those subsisting in the Transferor Companies on the said date.

The Transferee Company to lodge a copy of this order and the Scheme duly certified by Deputy Director or Assistant Registrar, National Company Law Tribunal, Principal Bench, as the case may be, with the concerned Superintendent of Stamps for the purpose of adjudication of stamp duty payable, if any, on the same, within 60 Days from date of receipt of copy of order.

That Petitioner Companies 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 concerned Registrar of Companies for registration and on such certified copy being so delivered the Transferor Companies shall be dissolved and the concerned Registrar of Companies shall place all documents relating to the Transferor Companies on the file kept by him in relation to the Transferee Company and the files relating to both the Companies shall be consolidated accordingly; and

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

The Petition stands disposed of in the above terms.

Let copy of the order be served to the parties.