In Re: Tutorvista Education India Private Limited and Others

A.S. Bopanna, J.—The petitioners herein are the transferor companies in respect of a common scheme of arrangement.

The transferee company is registered within the jurisdiction of High Court of Madras. The petitioners state that an appropriate petition has been filed before the Court having jurisdiction insofar as the transferee company is concerned.

For the purpose of convenience, the petitioner in Co. P. No. 154/2013 is referred as transferor company No. 1. Petitioner in Co. P. No. 191/2013 is referred as transferor company No. 2 and petitioner in Co. P. No. 192/2013 is referred as transferor company No. 3.

It is pointed out that in addition to the transferor companies herein there are other transferor companies which are part of the composite scheme of arrangement who are within the jurisdiction of High Court of Delhi and as such the transferor companies No. 1 to 3 herein are referred to jointly as transferor companies situate in Bangalore.

The transferor company No. 1 was incorporated on 13.07.2007. The Board in its meeting held on 18.03.2013 had considered the scheme of arrangement and had approved the same. The transferor company No. 1 was therefore before this Court in C.A. No. 587/2013 seeking that the meeting of shareholders and creditors be dispensed. Tins Court by order dated 26.04.2013 had allowed the application. Subsequent thereto, the instant petition has been filed.

The transferor company No. 2 was incorporated on 24.12.2009. The Board of Directors of the company considered the scheme of arrangement on 18.03.2013 and the same was approved. Accordingly the transferor company No. 2 was therefore before this Court in C.A. No. 588/2013 seeking that the meeting of shareholders and creditors be convened as per the schedule indicated therein. This Court by order dated 13.06.2013 had directed the convening of the meeting and as per the report filed by the Chairman in respect of the said meeting it has been accepted and subsequent thereto, the instant petition has been filed.

The transferor company No. 3 was incorporated on 01.03.2000. The scheme of arrangement was similarly considered and approved by the Board of Directors on 18.03.2013. The transferor company No. 3 was before this Court in C.A. No. 586/2013 seeking convening of meetings of secured and unsecured creditors. The application was disposed off on 13.06.2013 and accordingly on the meeting being convened and the report of the Chairman being filed before this Court and being accepted, the instant petition has been filed.

On the above petitions relating to the Bangalore transferor companies being filed before this Court, by separate orders in all these petitions the advertisement of the petitions was directed and the Regional Director as well as the Official Liquidator were notified. Though separate affidavits and reports have been filed in all these three petitions, considering the contents therein are similar to one another, they need not be referred to separately except noticing the gist of the contentions. Firstly, with regard to the report submitted by the Official Liquidator it is seen that as permitted by this Court, John, Joseph and Mathew, Chartered Accountants have verified the records and books of accounts of petitioner companies. By the report submitted by the Chartered Accountants it has been informed that the affairs of the company has not been conducted in a manner prejudicial to the company or in public interest. The same has been reflected in the report of the Official Liquidator. Hence, in that regard there is no objection to the sanction of the scheme of arrangement.

The affidavit filed by the Registrar of Companies on behalf of the Regional Director would refer to the aspect wherein the scheme of arrangement as in clause 1.1 indicated the appointed date as 01.04.2011. In that view, it is pointed out, since the balance sheet and profit and loss account has been maintained up to the financial year ending 31.03.2013, the same would not be appropriate. It is also indicated therein that a notice dated 31.01.2014 was issued to the Income Tax Department on this aspect of the matter but no comments or objections have been received from them. Learned counsel for the petitioners while seeking to justify the reason for which the appointed date has been fixed in the manner as has been indicated in the scheme has referred to clause 5.3 wherein the acquisition of the controlling stake in the transferee company has been referred as on 18.01.2011. It is in that view, in the immediate succeeding year the appointed date has been fixed.

Learned counsel has also referred to the decision of the Hon''ble Supreme Court in the case of Marshall Sons and Co. (India) Ltd. Vs. Income Tax Officer, ) to contend that the Hon''ble Supreme Court has held that unless the Court specifically indicates a date, it would be open in the circumstances to have an appropriate appointed date in the scheme. The said decision is also in a circumstance where the appointed date fixed in the scheme was prior to the date of the scheme being sanctioned. The decision of the High Court of Gujarat in the case of Shree Balaji Cinevision (India) Pvt. Limited is also referred to the same effect.

Having noticed the contention put forth, what is necessary to take into consideration is that the Hon''ble Supreme Court was considering that aspect of the matter in relation to the proceedings of the Income Tax Officer who was the respondent to the said proceedings where certain objections were raised in that regard by the Income Tax Department. In the instant case as noticed from the affidavit filed by the Regional Director though notice had been issued, to the Income Tax Department, the same had not been responded to by them and no objection has been raised thus far. Hence, with regard to the specific objection that may be raised by the Income Tax Department in that regard, in future and the justification to be provided there for is an issue which need not be adverted at this juncture. But taking note of the decision of the Hon''ble Supreme Court that the scheme of arrangement could be approved by taking into consideration the appointed date as indicated therein it would be considered, however leaving it open for consideration if any specific issue is raised by the Income Tax Department in that regarded reserving, liberty to the petitioner companies to respond to the same in accordance with law.

In that light having noticed the scheme of arrangement and also having taken into consideration the affidavit filed on behalf of the Regional Director and the report submitted by the Official Liquidator, there is nothing objectionable in the scheme except to the extent indicated above. That apart, the scheme has taken into consideration the interest of the shareholders, creditors and also the employees since the employees would be absorbed in the transferee company. Further, after the petitions were ordered to be advertised, no person whosoever has approached this Court opposing the scheme of arrangement. Accordingly, these petitions are liable to be allowed indicating that the approval of the scheme will remain subject to the result of the petitions filed by the transferee company. In that view, the following:

ORDER

(i) The petitions are allowed.

(ii) The scheme of arrangement as at Annexure-K and M in the respective petitions of the Bangalore transferor companies with the transferee company is approved, which shall bind all the shareholders

(iii) In view of the sanction of the scheme which is however subject to the petition of the transferee company being allowed, the petitioner - companies being the transferor Companies shall stand dissolved without the order of winding up.

(iv) Copy of the order shall be filed with the Registrar of Companies within a period of thirty days from the date of receipt of a copy of this order.