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Judgment
Per: Manoj Kumar Dubey, Member (Technical)
This Application has been filed under Section 59 and other applicable provisions of the IBC, 2016 R/w. IBBI (Voluntary Liquidation Process) Regulations, 2017 by the Liquidator seeking to order dissolution of the Petitioner Company.
The aforesaid Company, M/s. Tadano India Private Limited (hereinafter referred to as "Applicant Company") was incorporated on 29.03.2012 under the provisions of the Companies Act, 1956, having CIN: U29150KA2012FTC063306. Its Authorized Share Capital of the Company Rs.22,00,00,000/- divided into 22,00,000 Equity Shares of Rs.100/- each. The issued, subscribed and fully Paid-up Share Capital of the Company is Rs.22,00,00,000/- divided into 22,00,000 Equity Shares of Rs.100/- each. The main objective of the Company is involved in business of production, sales, after-sales service, export, import and rental of cranes and other lifting equipments etc.
The registered office of the Company is presently situated at No.82/1, 3rd Floor, 2nd Cross, KHB Colony, 5th Block, Koramangala, Bangalore – 560 095, which lies within the territorial jurisdiction of this Bench.
The following averments have been made in the Petition:
a. The Board of Directors of the Company in their meeting held on 01.07.2019 for taking note of Declaration of Solvency of the Company as required under Section 59 of the IBC, 2016 by majority of the Directors, decided to wind up the affairs of the Company by voluntary liquidation of Corporate person, on the date of approval by members in the General Meeting. Further, the Directors have filed Declaration of Solvency dated 01.07.2019 stating that they have made full inquiry into the affairs of the Company and are of the opinion that it will be able to pay its debts in full from the proceeds of assets to be sold in the voluntary liquidation within a period of 6 months from the commencement of the liquidation and the Company is not being liquidated to defraud any persons.
b. The Company in their Extraordinary General Meeting held on 25.07.2019 passed a Special Resolution to liquidate the Company voluntarily, and appointed Shri Pawan Kumar Garg, to act as Liquidator of the Company. A copy of the minutes of the EOGM is attached as Annexure-A9 of the Petition.
c. The Audited Financial Statements of the Company as on 31.03.2018 and 31.03.2019 along with Auditor's Report has been filed.
d. The commencement of liquidation and appointment of liquidator is intimated to the ROC in form MGT-14 and GNL-2 (for submissions of documents) on 30.07.2019. The Public Announcement was simultaneously submitted to IBBI to place the same on its website on 29.07.2019.
e. Public Announcement (Regulation 14 of the IBBI (Voluntary Liquidation Process) Regulations, 2017) - The Liquidator made a Public Announcement of commencement of liquidation in Form A, in Financial Express, English Newspaper and Sanjevani, Kannada Newspaper on 27.07.2019, seeking submission of the claim by the stakeholders, if any, within 30 days from the date of commencement of liquidation i.e. 25.07.2019.
f. List of stakeholders (Regulation 30 of the IBBI (Voluntary Liquidation Process) Regulations, 2017) - The last date of submission of claims, if any was 24.08.2019. Since there are no stakeholders the liquidator did not receive any claim from the stakeholders. The liquidator prepared a list of stakeholders as NIL.
g. Preliminary Report (Regulation 9 (1) of Chapter IV of the IBBI (Voluntary Liquidation Process) Regulations, 2017) - The Liquidator submitted the preliminary report to the Company on 07.09.2019.
h. Opening of Bank Account (Regulation 34 of the IBBI (Voluntary Liquidation Process) Regulations, 2017) - The Bank Account was opened with MizuhoBank Limited and the said Account was closed after meeting the Liquidation costs of the Company.
As per provisions of Section 178 of the Income Tax Act, 1961, the liquidator has intimated the commencement of Liquidation and appointment of Liquidator to the Income Tax Authority on 02.08.2019. In this regard, the Income Tax Department provided its' no objection certificate on 22.08.2019.
Further, the Liquidator has confirmed that all the assets have been realized except the Income Tax refund for the assessment year 2019-2020 corresponding to F.Y.2018-2019 for an amount of Rs.1,93,860/- and the assessment year 2020-2021 corresponding to F.Y.2019-2020 for an amount of Rs.31,438/-. Even after repeated requests no responses were received from the Income Tax Department. Since the refund amounts were not realized, the shareholders and the liquidator does not foresee any realization in near future, the above deposits were written off with the consent of shareholders.
j. Distribution of Liquidation Proceedings – Liquidator has confirmed that liabilities have been paid off and the remaining Bank balance was distributed among the shareholders in the ratio of their shareholding in the Company.
k. Final Report – Regulation 38 of the IBBI (Voluntary Liquidation Process) Regulations, 2017) – The liquidator had got the Accounts Audited for the liquidation period and submitted his Final Report dated 10.06.2021. Financial Statement of the Company as on 31.03.2018 and the Statement of Bank Account of Petitioner have been filed at page 192 of the Petition. In connection with the Accounts of the liquidation, the CA certificate showing receipts and payment pertaining to liquidation since the liquidation commencement date is being submitted which is given hereunder:
Accounts of the Liquidation, showing summary of receipts and payments pertaining to liquidation for the period 25.07.2019 to 25.05.2021
| RECEIPTS | Rs. | PAYMENTS | Rs. |
|---|---|---|---|
| Balance at Bank | 17,458,813.78 | Legal, Liquidation Fee and other incidental payments | |
| 1. Liquidator Fee including out of pocket expenses | 243,100.00 | ||
| 2. Payment of TDS/ advance Tax | 290,948.00 | ||
| 3. Rates and Taxes | 65,742.00 | ||
| 4. Liquidation expenses (Newspaper advertisement, filings fee etc.) | 21,038.00 | ||
| 5. Payment of consultancy fees for Accounting, Finance and other support services | 3,310,982.00 | ||
| Miscellaneous Income/Receipts | 12,582.00 | 6. Payment of Auditors fee for audit of liquidation account | 141,420.00 |
| Refund of VAT Security Deposit | 100,000.00 | 7. Bank Charges | 19,315.00 |
| 8. Tally Renewal Fee | 12,744.00 | ||
| 9. ROC filing fee | 8,424.00 | ||
| Payment to Creditors | |||
| 1. | 0.00 | ||
| 2. | 0.00 | ||
| Payment to Members |
| 1. Dividend | 0.00 | ||
| 2. Capital redemption (including Remittance charges to Bank):- | |||
| A. Tadano Limited | 12,662,332.99 | ||
| B. Tadano Engineering Limited | 795,349.01 | ||
| Closing Bank Balance | |||
| 1. Balance at Bank | 0.00 | ||
| Net Realization (Rs.) | 17,571,395.78 | Net Payment Rs. (Rs.) | 17,571,395.78 |
The Final Report of the Liquidating Company was submitted with ROC on 10.06.2021 and IBBI on 14.06.2021.
Heard Shri Arjun.N.A, learned PCS appearing for the Petitioner. We have carefully perused the record and extant provisions of the Code, and the Regulations made thereunder.
The Tribunal vide order dated 04.08.2022 directed the learned PCS to file (i) copy of Board Resolution for voluntary liquidation (ii) letter indicating closure of Bank A/c, within one week. The same has been complied vide Diary No.3813 dated 08.09.2022.
Therefore, the affairs of the Corporate Person have been completely wound up and its assets have been liquidated and nothing remains to be liquidated. Thus, the compliances of Section 59 and other relevant provisions of the IBC, 2016 r/w. Regulation 37(2) of IBBI (Voluntary Liquidation Process) Regulations, 2017 from the date of commencement of the liquidation proceedings is completed. Hence, we are of the considered opinion that the Corporate Person, through its liquidator, has been voluntarily liquidated.
In view of the foregoing, M/s. Tadano India Private Limited, the Applicant Company is hereby dissolved with effect from the date of the present order. A copy of this order be filed with the ROC within fourteen days.
The Petition bearing C.P. (IB)No.44/BB/2022 is accordingly allowed in the above terms.