Delhi High Court
Pm Buildcon Private Limited And ... vs .............. on 27 November, 2014
Author: Sanjeev Sachdeva
$~42
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 309/2014
IN THE MATTER OF
PM BUILDCON PRIVATE LIMITED AND ORS.
....Petitioners
Through: Mr. Rakesh Kumar, Advocate for
the Petitioners.
Mr. Atma Sah, Assistant Registrar of
Companies for the Regional
Director.
Mr. Rajiv Behl, Advocate for the
Official Liquidator.
CORA M:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 27.11.2014
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 of the Scheme of
Amalgamation ("Scheme") of PM Buildcon Private
Limited (hereinafter referred to as Transferor Company
No. 1), Cadillac Techno Build Private Limited
(hereinafter referred to as Transferor Company No. 2),
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SHV Buildwell Private Limited (hereinafter referred to
as Transferor Company No. 3) and Pragya Enterprises
Private Limited (hereinafter referred to as Transferor
Company No. 4) (hereinafter referred to as the
Transferor Companies) with KLJ Developers Private
Limited (hereinafter referred to as the Transferee
Company) (hereinafter collectively all companies are
referred to as Petitioner Companies). A copy of the
Scheme has been enclosed with the Petition.
2. The registered office of the Petitioner Companies is
situated at New Delhi, within the jurisdiction of this
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 as at
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
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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 th e
Companies Act, 1956 is pending against the Petitioner
Companies.
7. The Petitioner Companies had earlier filed C.A ( M) 63
of 2014 seeking directions of this Court for
dispensation/convening of meetings. Vide Order dated
21 st April 2014, this Court allowed the Application and
requirement of convening all the meetings of
Shareholders and Un-secured Creditors of the
Transferor Companies and Transferee Company were
dispensed with. In view of there being one Secured
Creditor of the Transferee Company whose debt was
small in proportion to the Net Worth of the Transferee
Company, the requirement to convene a meeting was
dispensed with the direction to serve an advance notice
of the second motion petition along with cop y of the
said petition and the order dated 21.04.2014. The
Petitioners have filed the proof of delivery of advance
notice to the secured creditor along with the Petition.
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8. The Petitioner Companies had thereafter filed the
present Petition seeking sanction of the Scheme. By an
order dated 13th May 2014, notice of the Petition was
directed to be issued to the Regional Director, Northern
Region and the Official Liquidator attached with this
Court, Citations were also directed to be published in
"Financial Express" (English) and "Jansatta" (Hindi).
An affidavit of service and publication has been filed
by the Petitioners showing compliance regarding
service of the Petition on the Regional Director,
Northern Region and the Official Liquidator and also
regarding publication of citati ons 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 notice issued, the Official Liquidator
sought information from the Petitione r Companies.
Based on the information received, the Official
Liquidator has filed his Report dated 12 th August 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 Companies do not
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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, Learned
Regional Director, Northern Region, Ministry of
Corporate Affairs has filed his Affidavit/Report dated
12 th August, 2014. Relying on the Scheme of
Amalgamation, he has stated that, upon sanction of the
Scheme, all the employees of the Transferor
Companies shall become the employees of the
Transferee Company without any break or interruption
in their services.
11. The learned Regional Director in his Affidavit has
observed that the Petitioner Companies may be asked
to comply with the Accounting Treatment as prescribed
under Accounting Standard 14 issued by the Institute of
Chartered Accountants of India and the provisions of
section 2(43) of the Companies Act, 2013.
12. In response to the aforesaid observation, the Petitioner
Companies have filed their Affidavit dated 23 rd
September 2014 wherein they have undertaken to
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comply with Accounting Standard 14 issued by the
Institute of Chartered Accountants of India and the
provisions of section 2(43) of the Companies Act,
2013.
13. Further, the learned Regional Director in his Affidavit
has observed that Transferor Company No. 3 in its
Annual Return has not disclosed the complete
shareholding pattern.
14. In response to the aforesaid observation, the Petitioner
Companies have filed their Affidavit, wherein it is
submitted that Transferor Company No. 3 has duly
filed revised e- FORM 20B (Annual Return).
15. Further, learned Regional Director in his Affidavit has
observed that comments from Income Tax Authorities
with respect to the Scheme may be called. In respect to
this observation, the Income Tax Authorities were put
to notice and were directed to file their comments
through an Affidavit as per order dated 12.11.2014.
16. Learned standing counsel for the Income Tax
Department submits that the affidavit on behalf of the
Income Tax is ready and shall be filed during the
course of the day.
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17. Further, learned counsel for the Petitioners submits that
since last date for filing return with the Income Tax is
30.11.2014 and prays that matter be t aken up today.
He submits that affidavit of the petitioner in response
to affidavit of the Income Tax is ready and shall be
filed during the course of the day.
18. The Affidavit on behalf of the Income Tax as well as
the Affidavit on behalf of the Petitione rs has been
produced in Court. The Originals are taken on record.
19. In compliance with the Order dated 12.11.2014, the
Income Tax Authorities has filed an Affidavit dated
27 th November 2014 stating that the Transferor
Companies and Transferee Company may be directed
to pay the taxes which otherwise would have been
payable but for the sanction of the scheme . Further it
submits that Petitioners be directed to give undertaking
to the effect that Scheme will not affect the right of the
Income Tax Department to recover the dues of the
Transferor Companies or the Transferee Company
irrespective of the sanction of the Scheme. It also
submits that the said Scheme shall not defeat the right
of the Income Tax departments to take appropriate
recourse for recovering the existing or previous
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liability of the Transferor Companies from Transferee
Company and the transferee company will not raise any
issue regarding the maintainability of such proceedings .
20. In response of the said observation, the Petitioner
Companies have filed their Affidavits dated
27.11.2014, wherein it is undertaken that Petitioner
Companies shall comply with the directions issued by
the Income Tax Authorities and the transferee shall pay
all the dues of the income tax department and other
departments. It has been undertaken that the Petitioner
companies shall not object to any assessment carried
out by the income tax department at any point of time
either pertaining to prior to merger or post merger.
21. It is clarified that the Income Tax Department shall
have the right to recovery of any existing or future tax
liabilities of the Transferor Companies or the
Transferee Company, in respect of the assets sought to
be transferred under the proposed Scheme irrespective
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 .
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22. Further, it is clarified that the Income Tax Authorities
shall be entitled to carry out the assessment of the
Transferor Companies for the period prior to the
appointed date irrespective of the sanction of the
Scheme and in case of any tax liability or penalty etc.
on the transferor companies, the transferee co mpany
shall be liable to settle the same.
23. In view of the aforesaid clarification and undertaking
and the concerns of the Regional Director and Income
Tax Authorities have been duly addressed.
24. No objection has been received to the Scheme from any
other party. Learned Counsel for the Petitioner
Companies submits that neither she nor her clients have
received any objection pursuant to the citations
published in the newspapers.
25. 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.
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Consequently, sanction is hereby granted to the Scheme
of Amalgamation under sections 391 and 394 of the
Companies Act, 1956. The Petitioner Companies will
comply with the statutory requirements in accordance
with law.
26. 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, the whole or part of the undertaking, the
property, rights and powers of the Transferor
Companies be transferred to and vest in the Transferee
Company without any further act or deed. Similarly, in
terms of the Scheme, all the liabilities and duties of the
Transferor Companies be transferred to the Tra nsferee
Company without any further act or deed.
27. 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 department which may be
specifically required under any law.
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28. Learned Counsel for the Petitioners states that the
Petitioner Companies (collectively) would voluntarily
deposit a sum of Rs. 1,00,000/- in the Common Pool
fund of the Official Liquidator within three weeks from
today. The statement is accepted.
29. The Petition is allowed in the above terms.
Order Dasti.
SANJEEV SACHDEVA, J
NOVEMBER 27, 2014
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