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Judgment
L. N. GUPTA, MEMBER (T)
This Petition is preferred by the Transferor Company under Section 230 to 232 of Companies Act, 2013 read with the Companies (Compromise,
Arrangements and Amalgamations) Rules, 2016 for approval of the Scheme of Amalgamation (hereinafter referred to as ‘Scheme’ for brevity),
as contemplated between the Companies, its Shareholders and Creditors. The copy of the Scheme has been placed on record. The details of the
Companies proposed to be amalgamated, as placed on record, are given in the following paragraphs.
That Yanmar India Private Limited, (hereinafter referred to as “Applicant/Transferor Companyâ€) was incorporated with CIN U51909DL2011
FTC212314 on 07.01.2011 under the provisions of the erstwhile Companies Act, 1956 as a Private Limited company having its registered office 1568,
Church Road, Kashmere Gate, New Delhi-110006.
That the Yanmar Engine Manufacturing India Private Limited, (hereinafter referred to as “Non-Applicant/Transferee Companyâ€) was
incorporated with CIN U29300TN2018FTC125720 on the 09.11.2018 under the provisions of the Companies Act, 2013 as a Private Limited Company
having its registered office at 1st Floor, Door No. 19, Khader Nawaz Khan Road, Nungambakkam, Chennai, Tamil Nadu - 600034.
That since the registered office of the Applicant Company is in Delhi therefore, the jurisdiction lies with this Bench. The registered office of the
Transferee Company is situated in Tamil Nadu, which does not fall within the Territorial Jurisdiction of this Bench. Therefore, the Transferee
Company shall seek approval of the Scheme from the Bench of the appropriate Jurisdiction. It is made clear that the directions being passed vide this
order shall confine to the Applicant Company only.
From the records, it is seen that the First Motion petition was filed by the Applicant Company for seeking directions for dispensing with the meeting
of its Equity Shareholders, Secured Creditors and Unsecured Creditors. That this Tribunal in the First Motion Application bearing No. CO. APPL.
(CAA) 56/ND/2021 vide Order dated 31.05.2021 had dispensed with the requirement of convening the meetings of the equity shareholders, secured
creditors and unsecured creditors of the Applicant Company.
The Appointed date as per Clause 4.4 of the Proposed Scheme of Amalgamation is 01.04.2021.
Subsequently, the Second Motion petition was moved by the Applicant Company in connection with the Scheme of Amalgamation for issuance of
notices to the Central Government, Registrar of Company 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. Directions were issued, vide Order
dated 11.06.2021 of this Tribunal, requiring the Applicant Company to carry out necessary publication with regard to the said Scheme in the daily
Newspapers viz., “Financial Express†(English) and “Jansatta†(Hindi) Delhi Edition.
It is submitted by the Applicant Company that in compliance of the above stated directions, the Applicant Company have duly filed an Affidavit of
Service confirming that the aforesaid Notices of the present Company Petition were published on 17.06.2021 in the “Financial Express†(English)
and “Jansatta†(Hindi) Delhi Edition newspapers.
That accordingly, the RD has filed its report dated 29.11.2021 and has not raised any objection. That the extracts of the RD’s report are
reproduced below:
That during the course of hearing on 06.01.2022, Ld. Counsel appearing for the RD has expressed its no objection for approval of Scheme.
That the OL has also filed its report dated 13.09.2021 and has not raised any objection towards approval of Scheme. That the relevant extracts of
the OL’s report are reproduced below :
The Income Tax Department has not filed its report despite opportunities. Hence, its right to file report was closed vide order dated 06.01.2022.
That the Applicant Company has averred the following with respect to the Share Exchange Ratio.
“(vii) Consideration for Amalgamation:
In consideration of the Amalgamation of the Petitioner/Transferor Company with and into the Non-Petitioner/Transferee Company, in terms of the share
entitlement ratio report dated February 5,
2021 issued by Ms. Neena Agarwal, a registered valuer (“Share Entitlement Ratio Reportâ€), the Non-Petitioner/Transferee Company shall, without any
further application, act, instrument or deed being made by the shareholders of the Petitioner/Transferor Company, issue and allot to the equity shareholders of
the Petitioner/Transferor Company, 43 (Forty Three) fully paid-up equity shares of the face value of INR 10/- (INR Ten Only) each for every 1 (One) fully paid-up
equity shares of the face value of INR 1000/- (INR One Thousand Only) each of the Petitioner/Transferor Company held by them as on the Record Date...â€
In view of the foregoing facts, discussion and upon considering the approval accorded by the Members and Creditors of all the Applicant
Company to the proposed Scheme and no sustainable objections having been raised by the Office of the Official Liquidator, Regional Director (North),
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 proposed by the Applicant Company under Section
230 to 232 of the Companies Act, 2013. The sanctioned Scheme of Amalgamation shall be binding on the Transferor Company and Transferee
Company (Applicant Companies) and their Shareholders and Creditors. The Applicant Company shall 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 Authority to the Scheme will not come in the way of action to be taken, albeit, in accordance with law, against the concerned persons,
Directors and Officials of the Applicant Company.
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 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 the Income Tax Act, 1961 or serve as any exemption or defense for the Applicant Company against tax treatment
in accordance with the provisions of Income Tax Act, 1961.
That subject to the approval of the scheme in regard to the Transferee Company from the Bench of the appropriate Jurisdiction,
this Tribunal directs with respect to Transferor Company that:
(i) Upon the sanction becoming effective from the appointed date of amalgamation i.e., 01.04.2021, the Transferor Company shall stand dissolved without undergoing
the process of winding up.
(ii) All benefits, entitlements, incentives and concessions under incentive schemes and policies that the Transferor Company are 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;
(iii) All contracts of the Transferor Company, 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 Transferor Company, the Transferee Company had been a party or beneficiary or obliged thereto;
(iv) All the employees of the Transferor Company 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 the terms and conditions no less favorable than
those on which they are engaged by the Transferor Company, 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;
(v) All liabilities of the Transferor Company, shall, pursuant to the provisions of section 232(4) and other applicable provisions of the Company 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.
(vi) All proceedings now pending by or against the Transferor Company be continued by or against the Transferee Company.
(vii) The Income Tax department is permitted to retain its recourse for recovery in respect of demand and any other future liabilities of the transferor Company and the
transferee company, in respect of the assets sought to be transferred under the proposed scheme.
(viii) That any person interested shall be at liberty to apply to this Tribunal in the above matter for any directions that may be necessary.
That the Applicant Company shall within thirty days of the date of the receipt of this Order or on sanction of the Scheme with respect to
Transferee Company, whichever is later, cause a Certified Copy of this Order to be delivered to the Registrar of Company for registration and on
such Certified Copy being so delivered, the Transferor Company shall be dissolved and the Registrar of Company shall place all the documents
relating to the Transferor Company in the file kept by it in relation to the Transferee Company and the files relating to Companies shall be consolidated
accordingly.
The Company Petition is Allowed in respect of Transferor Company only.