Delhi High Court
Tushar Properties Private ... vs .............. on 19 August, 2014
Author: Sanjeev Sachdeva
$~ 20
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 273/2014
IN THE MATTER OF TUSHAR PROPERTIES
PRIVATE LIMITED
..... Petitioners
Through: Mr. Sudhanshu Batra, Senior
Advocate and Mr. Ashish Midha,
Advocate for the Petitioners.
Mr. Atma Sah, Assistant
Registrar of Companies for the
Regional Director.
Mr. Rajiv Bhel, Advocate for the
official Liquidator.
CORAM:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 19.08.2014
SANJEEV SACHDEVA, J (ORAL)
1. This second motion joint Petition has been filed under
sections 391 to 394 of the Companies Act, 1956
("Act") seeking sanction to the Scheme of
Amalgamation ("Scheme") of Tus har Properties Private
Limited (hereinafter referred as Transferor Company)
with Sheena Properties Private Limited (hereinafter
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referred as Transferee Company) (Collectively referred
to as the Petitioner Companies). A copy of the Scheme
has been enclosed with the petition.
2. The registered offices of the Petitioner Companies are
situated at New Delhi, within the jurisdiction of this
Court.
3. Details with regard to the date of incorporation of
Petitioner Companies, their authorized, issued,
subscribed and paid up capital have been given in the
petition.
4. Copies of the Memorandum and Articles of
Association as well as the latest audited Annual
Accounts for the year ended 31 st March, 2013 of the
Petitioner Companies have also been enclosed with the
Petition.
5. Copies of the Resolutions passed by the Board of
Directors of the Petitioner Companies approving the
Scheme of Amalgamation have also been placed on
record.
6. Learned counsel for the Petitioner Companies submits
that no proceedings under sections 235 to 251 of the
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Companies Act, 1956 is pending against the Petitioner
Companies.
7. The Petitioner Companies had earlier filed CA (M) 56
of 2014 seeking directions of this Court for
dispensation/convening of meetings. Vide O rder dated
31 st March, 2014, this Court allowed the Application
and requirement of convening all the meetings of
Shareholders and Creditors of the Transferor Company
and of the Transferee Company were dispensed with.
8. The Petitioner Companies had thereafter filed the
present Petition seeking sanction to the Scheme of
Amalgamation. Vide order dated 30 th April, 2014,
notice of the Petition was directed to be issued to the
Regional Director, Northern Region and the Official
Liquidator attached with the Court. Citations were also
directed to be published in "Business Standard" in
English and Hindi. The same were published on 21 st
July, 2014 as per the orders of the Court. Affidavit of
Publication has been filed by the Petitioners showing
compliance regarding publication of citations in the
aforesaid newspapers. Copies of the newspaper
cuttings, in original, containing the publications have
also been filed.
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9. In response to the notice issued, the Official Liquidator
sought information from the Petitioner Companies.
Based on the information received, learned Official
Liquidator has filed his report dated 25 th July 2014,
wherein he has stated that he has not received any
complaint against the proposed Scheme from any
person/party interested in the Scheme in any manner
and that the affairs of the Transferor Company, which
are subject matter of dissolution, do not appear to have
been conducted in a manner prejudicial to the interest
of its members, creditors or to public interest as per the
2nd Proviso of section 394(1) of the act.
10. In response to the notice issued in the Petition, Mr.
A.K. Chaturvedi, Learned Regional Director, Northern
Region, Ministry of Corporate Affairs has been filed
his Affidavit/Report dated 31 st July, 2014. Relying on
the Scheme of Amalgamation, he has stated that, upon
sanction of the Scheme, all the employees of the
Transferor Company shall become the employees of the
Transferee Company without any break or interruption
in their services.
11. Learned counsel appearing for the Commissioner of
Income Tax submits that the parties of the scheme of
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amalgamation is to transfer the sole assets of the
transferor company to transferee company and in this
manner the petitioners are seeking to avoid capital
gains tax.
12. Learned Senior Counsel for the P etitioner submits that
under Section 47 (vi) of the Income Tax Act any
transfer in a scheme of amalgamation of capital by the
amalgamating company to the amalgamated company
is not regarded as a transfer.
13. In view of the above, it is clarified that any income tax
liability which is payable by the Transferor Company
shall be paid by the Transferee C ompany as the
liabilities of the Transferor Company stand transferred
to the Transferee Company. Therefore, any liability
that falls on the Transferor Company on account of any
earlier transaction shall have to be borne by the
Transferee Company. It is also clarified that any tax
benefit by way of refund or any credit that may be
available to the Transferor Companies shall also en sure
to the Transferee Company as all assets of the
Transferor Companies stand vested with the Transferee
Company pursuant to the Scheme. Needless to mention
that the Transferee Company shall also have the right
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to challenge the validity of the assessments made or
any demands made by the Income Tax Authorities to
the same extent as the Transferor Compa ny. It is also
clarified that the Income Tax Authorities shall have the
right to raise demands which are valid and as per law
and the Transferee Company shall be entitled to
benefits, refunds and credits in accordance with
applicable law. It is further clarified that none of the
provisions made in the scheme shall affect the income
tax liability of the companies including as arising from
the present scheme. The Income Tax A uthorities shall
independently assess the taxability of any income
arising from any transaction de hors any provision in
the scheme.
14. In view of the aforesaid clarification, the concerns of
the Regional Director and Income Tax Authorities have
been duly addressed.
15. No objection has been received to the Scheme from any
other party. Ms. Anita Jain, Director of Petitioner
Companies has filed an A ffidavit confirming that
neither the Petitioner Companies nor their Counsel has
received any objection pursuant to citations published
in the newspapers.
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16. In view of the approval accorded by the Shareholders
and Creditors of the Petitioner Companies;
representation filed by the Regiona l Director, Northern
Region and no objection by the Official Liquidator, the
proposed Scheme of Amalgamation, there appears to be
no impediment to the grant of sanction to the Scheme
of Amalgamation. Consequently, sanction is hereby
granted to the Scheme of Amalgamation under Sections
391 and 394 of the Companies Act, 1956.
17. The Petitioner Companies will comply with the
statutory requirements in accordance with law.
Certified copy of the formal order be filed with the
Registrar of Companies within 30 days from the date of
receipt of the same. In terms of the provisions of
Sections 391 and 394 of the Companies Act, 1956, all
the property, rights and powers of the Transferor
Company be transferred to and vest in the Transferee
Company without any further act or deed. Similarly, all
the liabilities and duties of the Transferor Company be
transferred to the Transferee Company without any
further act or deed. Upon the Scheme coming into
effect, the Transferor Company shall stand dissolved
without winding u p.
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18. It is, however, clarified that this order will not be
construed as an order granting exemption from
payment of stamp duty or any other charges, if payable,
in accordance with any law; or permission/compliance
with any other requirement which may be spe cifically
required under any law.
19. The Petitioner Companies (collectively) would
voluntarily deposit a sum of Rs. 50,000/ - in the
Common Pool fund of the Official Liquidator within
three weeks from today. The Statement is accepted.
20. The Petition is allowed in above terms.
Order Dasti.
SANJEEV SACHDEVA, J
AUGUST 19, 2014
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