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Judgment
Narender Kumar Bhola, Member (T)
The present Petition has been preferred by the Transferor and Transferee Companies under Section 230-232 of Companies Act, 2013 for the purpose of the approval of the scheme of amalgamation, as contemplated between the companies and its shareholders and creditors by way of Amalgamation between Intertoll India Consultants Private Limited (hereinafter referred to as the Transferor Company No. 2), Intertoll ICE CE CONS O & M Company Private Limited (hereinafter referred to as the Transferor Company No. 3), Steadfast Infrastructure Pvt. Ltd (hereinafter referred to as the Transferor Company No. 1) and Intertoll ICS (Ahmedabad Mehsana) Toll Management Company Private Limited hereinafter referred to as the Transferor Company No. 4) with Intertoll ICS India Private Limited (hereinafter referred to as the Transferee Company).
The Transferor Company No. 2 namely, M/s. Intertoll India Consultants Private Limited is a Company incorporated on 21.10.1999 under the provisions of Companies Act, 1956 with CIN No. U74999DL1999PTC102064, having its registered Office at 612, ITL Twin Tower, B-09, Netaji Subhash Place, New Delhi - 110034. The Authorised Share Capital of the aforesaid company is Rs. 10,00,00,000 and the Paid-up Share Capital of the company is Rs. 9,05,32,110.
The Transferor Company No. 3 namely, M/s. ICE CE CONS O&M Company Private Limited is a Company incorporated on 26.07.2002 under the provisions of Companies Act, 1956 with CIN No. U45203DL2002PTC116350, having its registered Office at 612, ITL Twin Tower, B-09, Netaji Subhash Place, New Delhi - 110034. The Authorised Share Capital of the aforesaid company is Rs. 20,5,00,000 and the Paid-up Share Capital of the company is Rs. 1,59,12,840.
The Transferor Company No. 1 namely, M/s. Steadfast Infrastructure Private Limited is a Company incorporated on 19.3.1999 under the provisions of Companies Act, 1956 with CIN No. U74140MH1999PTC119014, having its registered Office at 4th Floor, Business Square, A-Wing, Andheri Kurla Road, Andheri (East), Mumbai - 400093, Maharashtra. The Authorised Share Capital of the aforesaid company is Rs. 60,00,000 and the Paid-up Share Capital of the company is Rs. 30,68,140.
The Transferor Company No. 4 namely, M/s. Intertoll ICS (Ahmedabad Mehsana) Toll Management Company Private Limited is a Company incorporated on 01.08.2001 under the provisions of Companies Act, 1956 with CIN No. U74140MH2001PTC132939, having its registered Office at 4th Floor, Business Square, A-Wing, Andheri Kurla Road, Andheri (East), Mumbai - 400093, Maharashtra. The Authorised Share Capital of the aforesaid company is Rs. 1,00,000 and the Paid-up Share Capital of the company is Rs. 1,00,000.
The Transferee Company namely, M/s. Intertoll ICS India Private Limited is a Company incorporated on 21.09.1999 under the provisions of Companies Act, 1956 with CIN No. U741210MH1999PTC121874, having its registered Office presently at 4th Floor, Business Square, A-Wing, Andheri Kurla Road, Andheri (East), Mumbai - 400093, Maharashtra. The Authorised Share Capital of the aforesaid company is Rs. 10,00,000 and the Paid-up Share Capital of the company is Rs. 10,00,000.
The registered office of Transferor Company No. 1 and Transferor Company No. 4 are situated in Mumbai. Therefore, the approval of the scheme has already been obtained from NCLT Mumbai, vide order dated 13.12.2018 passed in CAA/1851/MB/2018. The Registered office of the remaining companies are situated in Delhi therefore, the jurisdiction lies with this Bench.
From the records, it is seen that the First Motion was filed by the Petitioner Companies for seeking directions for dispensing the meeting of Equity Shareholders, Secured Creditors and Unsecured Creditors of both the companies. This Tribunal, in the First Motion bearing No. CAA No. 12 (PB)/2018, vide Order dated 09.02.2018, dispensed with the requirement of convening the meetings of the equity shareholders, secured creditors and unsecured creditors of the petitioner companies.
8 The Appointed date as fixed for the Proposed Scheme of amalgamation is fixed is 1st January 2017.
Subsequent to the order of dispensation of meetings in relation to both the Transferor Company and Transferee Company, the Second Motion petition was moved by the Petitioner Companies in connection with the scheme of Amalgamation, for issuance of notices to the Central Government, Registrar of Companies, NCT of Delhi & Haryana, Regional Director (Northern Region) MCA, Income Tax Authorities, Official Liquidator, and to such other Objector(s), if any and also for publication of the said scheme. The directions were issued vide order dated 10.04.2018 requiring both the companies to serve notices to the Central Government, Registrar of Companies, NCT of Delhi & Haryana, Regional Director (Northern Region) MCA, Income Tax Authorities, Official Liquidator, and also to carry out necessary publication in English and Hindi newspapers, with respect to the said scheme.
It is submitted by the Petitioners that In compliance, of the above stated directions, the Director of Petitioner Company duly filed an affidavit of service by confirming that the aforesaid notices of the present Company Petition were published on 23.04.2018 in Business Standard (English) and Jansatta (Hindi). It is further submitted that the Petitioner Companies also served the notices of the present company petition to all the statutory authorities.
It is stated by the Petitioners that the Official Liquidator has filed his report dated 11.06.2018, That this Tribunal had recorded in its order dated 26.09.2018 that there is no observation against the scheme made by the Official Liquidator.
12 That the Income Tax Department has filed its report dated 05.07.2018 with respect to Petitioner Companies. It has been pointed out in the report that there is an outstanding demand of Rs. 62,408/against the Petitioner No. 2 Company for the Assessment Year 2008-09.
13 That the Petitioner Companies in response to the same had filed their reply on 23.10.2018, stating that they have cleared the outstanding demand of Rs. 62,408. The acknowledgement receipt dated 15.10.2018 was also placed on record.
14 That the Regional Director, Northern Region, Ministry of Corporate Affairs has filed his report dated 03.07.2018 and has submitted that the Petitioner company has violated Section 137 of Companies Act 2013. That this Tribunal has directed the Petitioner Companies vide order dated 11.04.2019 to file compounding application before the appropriate authority.
15 That the Petitioner Companies thereafter had placed order dated 26.07.2018 on record, passed by Regional Director, wherein the compounding of offence under Section 129 of Companies Act 2013 was allowed.
That the Regional Director further objected with respect to Petitioner No. 2 Company that, in the Financial Statements for 2016-17, it was reported that certain proceedings were pending before the Assessing Officer is respect of Income Tax of Rs. 56,188 and before Hon'ble High Court in respect of Service Tax for Rs. 1,19,07,466. However, no disclosure of those proceedings, if still pending, was made in the scheme breaching the provisions of Section 230 (2) (a) of Companies Act 2013. In addition to this Regional Director also objected that Transferee Company may kindly be directed to comply with the provisions of Section 232(3)(i) of Companies Act 2013 in regard to the fee payable on revised share capital.
That the Petitioner Companies in response to the same has submitted that the proceedings under Income Tax and Service Tax, pending against the Petitioner No. 2 Company shall be transferred to the Transferee Company, on the scheme being approved. Therefore, no prejudice is caused to any authority.
18 With regard to the objection made by the Regional Director with respect to Section 232(3)(i) of Companies Act 2013. It is submitted that the Authorized Share Capital of the Transferee Company shall stand increased by an equivalent amount of Authorized Share Capital aggregating that of the Transferor Companies. Therefore, the transferee company shall be eligible to set-off the fees paid by the Transferor Companies against its liability to pay the fees on increased Authorized Share Capital.
19 In view of the foregoing, upon considering the approval accorded by the Members and Creditors of all Companies to the proposed Scheme, and no sustainable objections having been raised by the Office of the Regional Director, Income Tax Department or any other interested party, there does not appear to be any impediment in granting sanction to the Scheme. Accordingly, in sequel to the above, sanction is hereby granted to the Scheme of Amalgamation under section 230-232 of the Companies Act, 2013. The sanctioned Scheme of Amalgamation shall be binding on the Transferor and Transferee Company, and their Shareholders and Creditors. The Parties shall also be bound to comply with the requisite 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 court to the scheme will not come in the way of action being taken, albeit, in accordance with law, against the concerned persons, Directors and officials of the Petitioner Companies.
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 statutory dues, 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. Further the approval of the scheme would in no manner affect the tax treatment of the transactions under Income Tax Act, 1961 or serve as any exemption or defense for the applicant companies against tax treatment in accordance with the provisions of Income Tax Act, 1961.
THIS TRIBUNAL FURTHER DIRECTS:
(1) Upon the sanction becoming effective from the appointed date of amalgamation, i.e., 1st January, 2017, the Petitioner Companies shall stand dissolved without undergoing the process of winding up.
(2) All benefits, entitlements, incentives and concessions under incentive schemes and policies that the Transferor Companies is entitled to, including 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;
(3) All contracts of the Petitioner 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 favor of the Transferee Company and may be enforced by or against it as fully and effectually as if, instead of the Petitioner Companies, the Transferee Company had been a party or beneficiary or obliged thereto;
(4) All the employees of the Petitioner Companies shall be deemed to have become the employees and the staff of the Transferee Company with effect from the Appointed Date, and shall stand transferred to the Transferee Company without any interruption of service and on term and conditions no less favorable than those on which they are engaged by the Transferor Companies, as on the Effective Date, including in relation to the level of remuneration and contractual and statutory benefits, incentive plans, terminal benefits, gratuity plans, provident plans and any other retirement benefits;
(5) With respect to petitioner companies, there will be no limitation on the power of Income Tax Department for recovery of any past, present or future tax dues including interest or penalty etc from the assets of the transferee company.
(6) All liabilities of the Petitioner Companies, shall, pursuant to the provisions of section 232(4) and other applicable provisions of the Companies Act, 2013, to the extent they are outstanding as on the Effective Date, without any further act, instrument or deed stand transferred to and be deemed to be the debts, liabilities, contingent liabilities, duties and obligations etc. as the case may be, of the Transferee Company and shall be exercised by or against the Transferee Company, as if it had incurred such liabilities.
That the 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 Registrar of Companies for registration and on such certified copy being so delivered the Transferor Company hall 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 in relation to the Transferee company and the files relating to the said companies shall be consolidated.
The Company Petition is allowed and disposed of with aforesaid directions.