Delhi High Court
Magic Eye Developers Private ... vs .......... on 21 July, 2014
Author: Sanjeev Sachdeva
$~14
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 142/2014
IN THE MATTER OF MAGIC EYE DEVELOPERS PRIVATE
LIMITED ......Petitioners
Through: Mr. Santosh Kumar Advocate for
Petitioner companies, 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
% 21.07.2014
SANJEEV SACHDEVA, J (ORAL)
1. This second motion joint Petition has been filed under sections
391 to 394 of the Companies Act, 1956 (hereinafter referred to
as "Act"), seeking sanction to the Scheme of Amalgamation
(hereinafter referred to as "Scheme") of Spire Developers
Private limited (hereinafter referred to as "Transferor
Company") with Magic Eye Developers Private Limited
(hereinafter referred to as "Transferee Company")
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(hereinafter collectively refereed as "Petitioner Companies").
A copy of the proposed Scheme is filed along with the present
petition.
2. The registered offices of the Petitioner Companies are situated
at New Delhi, within the jurisdiction of this Court.
3. The details of respective dates of incorporation of the Petitioner
Companies, their authorised, issued, subscribed and paid up
capital have been set out in the petition.
4. The copies of the Memorandum and Articles of Association of
the Petitioner Companies have been enclosed with the petition.
5. The copies of resolutions passed by the Boards of Directors of
the Petitioner Companies approving the Scheme have also been
filed along with the petition.
6. Learned Counsel for the Petitioner Companies submits that no
proceedings under Sections 235 to 251 of the Act is pending
against the Petitioner Companies.
7. The Petitioner Companies had earlier filed CA (M) 82 of 2013
seeking directions of this Court for dispensation/convening of
meetings. Vide order dated 25th October, 2013, this Court
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allowed the application and requirement of convening all the
meetings of shareholders and creditors of the Transferor
Company. Since the Transferee Company has no secured
creditor, hence the requirement of convening the meeting of the
secured creditor does not arise. Further, this court dispensed
with the requirement of convening meetings of shareholders
and secured creditor of the Transferor Company. Since, none of
the unsecured creditors had given their no objection to the
Scheme, this Court directed to hold a meeting of the unsecured
creditors of the Transferor Company. In pursuance of Order
dated 25th October, 2013, a meeting of unsecured creditor of the
Transferor Company was held in which all the unsecured
creditors present in the meeting had casted their votes and none
of the unsecured creditors voted against the proposed Scheme
of Amalgamation. In this respect, a Chairman was appointed for
the meeting vide Order 25th October, 2013. He submitted his
report before this Hon'ble Court. Further this Court allowed
the application.
8. The Petitioner Companies had thereafter filed the present
petition seeking sanction to the Scheme of Amalgamation. Vide
Order dated 28th February, 2014, notice of the petition was
directed to be issued to the Regional Director, Northern Region,
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Ministry of Corporate Affairs and the Official Liquidator
attached with this Court and the Registrar of Companies.
Further, the citations were also directed to be published in The
Statesman (English, Delhi Edition) and Veer Arjun (Hindi,
Delhi Edition). An affidavit of service and publication has been
filed showing compliance regarding service of the petition on
the Regional Director, Northern Region, the Registrar of
Companies and the Official Liquidator, and also regarding
publication of citations in the aforesaid newspapers. Copies of
the newspaper cuttings containing the publications have been
filed along with the affidavit of service.
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 4th 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 is 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 second proviso of Section 394(1) of
the Act.
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10. In response to the notice issued in the petition, learned Regional
Director, Northern Region, Ministry of Corporate Affairs has
filed his Affidavit/Report dated 3rd July, 2014. In Para 4, of the
Affidavit the Regional Director has mentioned the observation
of the Income Tax Officer that "no business activities has been
performed by the company during the Financial Year 2011-
12".
11. In response to the abovementioned observations, a submission
along with affidavit dated 7th July, 2014 has been filed by Mr.
Santosh Kumar, authorized signatory of the Petitioner
Companies, wherein it is stated that the Transferee Company
was incorporated on 18th April 2007 and the Business was duly
Set up in Financial Year 2007-08, during which the Transferee
Company, with the objective of conducting real estate business,
entered into Agreements to Purchase Land and paid advances
thereof. Further, the Company, during the Financial Year 2011-
12, relevant to Assessment Year 2012-13, in fact, acquired
lands through Registered Sale Deeds, applied for grant of
Licences to Appropriate Authorities, to commence
construction/Development of a Commercial Colony on land.
The company being aggrieved against the Order of the ITO has
preferred an appeal on 30th April before the Commissioner of
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Income Tax (Appeals) IX, New Delhi , which is pending
Disposal.
12. The Regional Director submits that the Income Tax Authorities
have framed the assessment in respect of Transferee Company
for the assessment year 2012-2013 and the assessment order has
resolved in an addition of Rs. 90,25,145/-. Learned counsel for
the Transferee Company submits that the said assessment order
has been challenged and an appeal has been filed against the
assessment order for the year 2012-2013 and without prejudice
to the said appeal, the Transferee Company, if it is held to be
liable to pay additional tax, shall bear the said burden.
13. The Regional Director has further pointed out that the Income
Tax Authorities have raised an issue that carry forward and set
off of business losses of amalgamating company by the
amalgamated company should be in accordance with provisions
of Section 72A of the Income Tax Act, 1961.
14. Learned counsel for the petitioner submits that the Transferee
Company shall claim set off or carry forward of business losses
only in accordance with the provisions of Section 72A of the
Income Tax Act, 1961 and all requisite formalities for set off of
business losses shall be complied with in case any such setoff is
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claimed by the Transferee Company qua the losses of the
Transferor Company.
15. The Regional Director submits that the Transferee Company
should follow the provisions of the Companies Act, 1956 and
the Companies Act, 2013 for the change/alternation of the name
of the Company.
16. Learned counsel for the petitioner undertakes on behalf of the
petitioner that the requisite statutory provisions for
change/alternation of the name of the Company shall be
complied with.
17. In view of the aforesaid clarification and undertaking given by
the Petitioners, the concern of the Regional Director have been
duly addressed.
18. No objection has been received to the Scheme of
Amalgamation from any other party. Mr Ravinder Kumar
Shukla, Director of the Petitioner Companies has filed an
affidavit confirming that neither the Petitioner Companies nor
their Counsel has received any objection pursuant to citations
published in the newspapers.
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19. In view of the approval accorded by the shareholders and
creditors of the Petitioner Companies, representation/reports
filed by the Regional Director, Northern Region and the
Official Liquidator, attached with this Court to 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 Act. The
Petitioner Companies shall comply with the statutory
requirements in accordance with law.
20. 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 Act,
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 up.
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21. 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 specifically required under any law.
22. The Petitioner Companies (collectively) would voluntarily
deposit a sum of Rs. 75,000/- in the Common Pool fund of the
Official Liquidator within three weeks from today. The
Statement is accepted.
23. The Petition is allowed in the above terms.
Order Dasti
SANJEEV SACHDEVA, J
JULY 21, 2014
HJ
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