Delhi High Court
Ganesh Paper Mills (Delhi) ... vs ................ on 23 December, 2014
$~7
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 645/2014
IN THE MATTER OF
GANESH PAPER MILLS (DELHI) PRIVATE LIMITED
.....Petitioners
Through: Mr. Deepak Diwan, Mr. Vinod
Kumar and Mr. Karan Mehra,
Advocates for the Petitioners.
Mr. Atma Sah, Assistant
Registrar of Companies for the
Regional Director.
CORA M:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 23.12.2014
SANJEEV SACHDEVA, J (ORAL)
C.A No.2908/2014 (application for condonation of
delay on behalf of the Regional Director)
This is an application filed by the Regional
Director seeking condonation of delay in filing the
report.
Learned Counsel for the petitioner submits that he
does not have any objection to the delay being
condoned and the report being taken on record.
In view of the above, the delay filing the report is
=====================================================
condoned and the report is taken on record.
CO.PET. 645/2014
1. This second motion joint petition has been filed under
sections 391 & 394 of the Companies Act, 1956
("Act") seeking sanction of the Scheme of
Arrangement ("Scheme") of Ganesh Paper Mills
(Delhi) Private Limited (hereinafter referred to as
Demerged Company) with Rollex Exim Private
Limited (hereinafter referred to as the Resulting
Company No. 1) Neeru Properties Private Limited
(hereinafter referred to as the Resulting Company No.
2) and HD Business Services Private Limited
(hereinafter referred to as the Resulting Company No.
3) (hereinafter collectively referred to as 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
Hon‟ble Court.
3. Details with regard to the date of incorporation of the
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 Accounts for
the year ending 31 st March 2013 of 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
Companies Act, 1956 is pending against the Petitioner
Company.
7. The Petitioner C ompanies had earlier filed CA (M) No.
133 of 2014 seeking directions of this Court for
dispensation of meetings of the Equity Shareholders
and Secured and Unsecured Creditors of the Demerged
Company and the Resulting Companies. Vide order
dated 26th September, 2014, this Court allowed the
Application and dispensed with the requirement of
convening meetings of Equity Shareholders, Secured
=====================================================
and Un-secured Creditors of the Demerged Company
and the Resulting Companies.
8. The Petitioner Company has thereafter file d the present
Petition seeking sanction of the Scheme of
Arrangement. Vide order dated 17 th October 2014,
notice in the petition was directed to be issued to the
Registrar of Companies and the Central Government
through Regional Director. Citations were also directed
to be published in „Business Standard‟ (English) and
„Jansatta‟ (Hindi). Affidavit of Service and Publication
has been filed by the Petitioner Company showing
compliance regarding service of the petition on the
Regional Director, Northern Regi on, the Registrar of
Companies and also regarding publication of citations
in the aforesaid newspapers. Copies of the newspaper
cuttings, in original, containing the publications have
been filed along with the Affidavit of Service.
9. In response to the notices issued in the Petition, Mr.
A.K. Chaturvedi, learned Regional Director has filed
his Affidavit/Report dated 5th December, 2014. Relying
on Clause 1.19 of the Scheme, he has stated that, upon
sanction of the Scheme of Arrangement, all the
staff/employees of the Demerged Company engaged in
=====================================================
"Finance Division" shall become the employees of the
Resulting Company No. 1 without any break or
interruption in their services upon sanctioning of the
Scheme of Arrangement by the Hon‟ble Court. It is
also stated that all the staff/employees of the Demerged
Company engaged in "Construction Division" shall
become the employees of the Resulting Company No. 2
without any break or interruption in their services upon
sanctioning of the Scheme by the Hon‟ble Court. It is
further stated that all the staff/ employees of the
Demerged Company engaged in "Finance and
Consultancy Division" shall become the employees of
the Resulting Company No. 3 without any break or
interruption in their services upon sanctioning of the
Scheme of Arrangement by the Hon‟ble Court.
10. Further, learned Regional Director submits that ,
Income Tax Authorities has raised observation with
respect to the Scheme that said authorities has received
letter dated 24.11.2014 that vide Dy. No. 9030 dated
25.11.2014 stating that for the Assessment Year 2012-
13, the Assessing Officer has made addition of Rs. 1
Crore on account of the fact that the peak amount of
cost of Land & Building which was sold was 14.01
=====================================================
Crores and as per the agreement the sale consideration
has been shown @ Rs. 13.01 Crores. Thus Rs. 1 Crore
has been taken over and above the registry value which
is not reflected in the return filed by the assessee.
However, the assessee has filed an appeal to the CIT
(A) which is pending before the CIT (A). As per the
ITNS-150, the assessee has paid full amount of tax and
there is no demand. It is further stated that the Revenue
Department needs protection of its revenue from the
Hon‟ble Court that unabsorbed losses, if any, will be
adjusted with any new company formed by the assessee
and if any amount is payable in future by the assessee
after the appellate order of the CIT (A), the Hon‟ble
Court may kindly protect in the interest of the Revenue
by allowing the Department to collect the demand from
the new companies.
11. It is directed that Income Tax Department is permitted
to restrain its resource for recovery of any existing or
future tax liabilities of Demerged or Resulting
Companies, under the proposed scheme irres pective of
the sanction of the Scheme. The sanction of the Scheme
would not affect the powers of the Income Tax
Department for recovery, including imposition of
=====================================================
penalties etc. as permissible under law, irrespective of
the sanction of the scheme.
12. It is clarified that the approval of the Scheme, would in
no manner affect the tax treatments of the transactions
under the Income Tax Act, 1961 or any other
applicable taxing statute, nor would the sanction of the
Scheme serve as a defence for the petitioners against
tax treatment under the abovementioned statutes.
13. Further the learned counsel for the Petitioners
undertakes that in case any liability arises, the
Resulting Companies shall continue to be liable for the
same.
14. In view of the above clarification and undertaking, the
concern of the learned Regional Direct or is duly
addressed.
15. No objection has been received to the Scheme of
Arrangement from any other party. Dr Anil Das
Kumar, Director of the Demerged Company, has filed
an affidavit dated 24th November, 2014, confirming
that neither the Petitioner Companies nor their Legal
Counsel has received any objection pursuant to
citations published in the newspapers.
=====================================================
16. In view of the approval accorded by the Shareholders
of the Petitioner Company; representation/reports filed
by the Regional Director, Northern Region, attached
with this Court to the proposed Scheme of
Arrangement, there appears to be no impediment to the
grant of sanction to the Scheme of Arrangement.
Consequently, sanction is hereby grante d to the Scheme
of Amalgamation under sections 391 and 394 of the
Companies Act, 1956. The Petitioner Company will
comply with the statutory requirements in accordance
with law. However, in the view of the above, sanction
is hereby granted to the Scheme under Section 391 and
394 of the Act.
17. Certified copy of the 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, and in terms of
the Scheme, all the assets, rights and powers pertaining
to the Finance Division, Construction Division and
Finance & Consultancy Division of the Demerged
Company be transferred to and vest in the Resulting
Company No. 1, Resulting Company No. 2 and
=====================================================
Resulting Company No. 3 respectively without any
further act or deed.
18. It is, however, clarified that this order will not be
construed as an order granting exemption from
payment of stamp duty or taxes or any other charges, if
payable in accordance with any law; or
permission/compliance with any other requirement
which may be specifically required under any law .
19. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
DECEMBER 23, 2014
sv
=====================================================
