1. This is a Joint Petition filed by the Petitioner Companies under Section 230 read with 232 of the Companies Act, 2013 and other applicable provisions of the Companies Act, 2013 by inter-alia seeking approval for Composite Scheme of Arrangement between the Petitioner Companies and their respective shareholders, creditors so as to be binding on all the members, shareholders, creditors and employees of all the Petitioner Companies and all concerned.
2. The averments made in the application are briefly described as under:
a. M/s. Abhibus Services (India) Private Limited, (hereinafter referred to as '1st Petitioner'/'Demerged Company'/'Transferor Company') was incorporated as a private limited company in the State of Telangana on October 16, 2008 vide Corporate Identity Number U93000TG2008PTC061437. 1st Petitioner/Demerged Company/Transferor Company is engaged in the business of booking of bus, train and hotel and also operates an online marketplace for bus tickets, trains and hotel rooms in India (i.e., ticket booking business) and also in the business of development of software (i.e., software business). A copy of the Memorandum and Articles of Association of the 1st Petitioner/Demerged Company/Transferor Company is annexed hereto as Annexure-A.
b. The authorised, issued, subscribed and paid-up share capital of the 1st Petitioner/Demerged Company/Transferor Company as on 30th November, 2021 is as follows:
Subsequent to the scheme date and till the date of filing the Scheme, there has been no change in the issued, subscribed and paid up capital of the 1st Petitioner/Demerged Company/Transferor Company.
A copy of the audited financial statements as at 31st March, 2021 of the 1st Petitioner/Demerged Company/Transferor Company are annexed hereto as Annexure-B.
c. M/s. Nischay Software Solutions Private Limited (hereinafter referred to as '2nd Petitioner'/'Resulting Company') was originally incorporated under the Companies Act, 2013 on November 13, 2020. The CIN of Resulting Company is U72900TG2020PTC145912. The 2nd Petitioner/Resulting Company is engaged in the business of Software designing, development, customisation, implementation, maintenance, testing and benchmarking, etc. A copy of the Memorandum and Articles of Association of the 2nd Petitioner/Resulting Company is annexed hereto as Annexure-C.
d. The authorized, issued, subscribed and paid-up share capital of the 2nd Petitioner/Resulting Company as on 30th November, 2021 is as under:
A copy of the audited financial statements as at 31st March, 2021 of the 2nd Petitioner/Resulting Company is annexed hereto as Annexure-D.
e. M/s. Nischay Expert Services Private Limited (hereinafter referred to as '3rd Petitioner'/'Transferee Company') was originally incorporated under the Companies Act, 2013 on November 12, 2020. The CIN of Resulting Company is U74999TG2020PTC145887. The 3rd Petitioner/Transferee Company is engaged in the business of providing the consulting services for various sectors which includes travel sector and also in the business of Software designing, development, etc,. The Memorandum and Articles of Association of the 3rd Petitioner/Transferee Company annexed hereto as Annexure-E.
f. The authorized, issued, subscribed and paid-up share capital of the 3rd Petitioner/Transferee Company as on 30th November 2021 is as under:
A copy of the audited financial statements as at 31st March, 2021 of the 3rd Petitioner or Transferee Company are annexed hereto as Annexure F.
3. This Composite Scheme of Arrangement is being proposed broadly for the ease of doing businesses by the Companies by demerging the Demerged Business Undertaking of the Demerged Company into the Resulting Company and the Remaining Undertaking being amalgamated with the Transferee Company. The circumstances that have necessitated or justified the proposed Composite Scheme of Arrangement and its main benefits are, inter alia, summarized as under:
DEMERGER
i. The Demerged Business Undertaking is subject to different rates of profitability, growth opportunities, future prospects and risks. The nature of risk and competition involved in this business is distinct. With an endeavor to enhance shareholder's value, it is proposed to reorganize and segregate the business of demerged business undertaking.
ii. The Demerged Company is engaged in the business of booking of bus, train and hotel and also operates an online marketplace for bus tickets, trains and hotel rooms in India. The demerger of the De merged Business Undertaking from the Demerged Company into Resulting Company would bring synergies in the operations of the Resulting Company.
iii. Enable each business to pursue growth opportunities and offer investment opportunities to potential investors.
AMALGAMATION
iv. To achieve consolidation, greater integration and financial strength and flexibility which will maximize overall shareholders' value and improve the competitive position of the combined entity.
v. Result in economies in business operations, provide optimal utilization of resources and greater administrative efficiencies.
vi. Increase in operating strength and potential business development shall enable the entities to raise financial resources at better terms and also create new investment opportunities for potential investors and effectively fund organic and inorganic growth opportunities.
4. BOARD RESOLUTION
The Board of Directors of the 1st Petitioner/Demerged Company/Transferor Company/vide its meeting 09.12.2021 approved the Composite Scheme of Arrangement between the Petitioner Companies and their respective shareholders. The Board of Directors of the 2nd Petitioner Company and 3rd Petitioner Company vide its meetings dated 10.12.2021 approved the Composite Scheme of Arrangement between the Petitioner Companies and their respective shareholders. The Copies of Board Resolution of the Petitioner Companies approving the Composite Scheme of Arrangement are annexed hereto and marked as Annexure-G, H, I respectively.
5. COMPLIANCE OF ACCOUNTING STANDARD
The accounting treatment of the demerger of Demerged Business Undertaking in the books of the Demerged Company and the Resulting Company shall be in compliance with the applicable accounting standards notified under Section 133 of theand other generally accepted accounting principles in India.
Upon approval of the Scheme by the Tribunal, Transferee Company shall account for the amalgamation of the Transferor Company pursuant to the Scheme in accordance with Accounting Standards specified under section 133 of theand other generally accepted accounting principles in India.
A copy of auditors Certificate certifying the Accounting Treatment contained in Composite Scheme of Arrangement is annexed as Annexure - Q & R to the Application.
The valuation report dated 07.12.2021, is annexed hereto and marked as Annexure-S to the Application.
6. It has been submitted that the petitioner companies filed joint CA.(CAA) No. 3/230/HDB/2022 petition wherein this adjudicating authorities vide orders dated 22.02.2022 was pleased to dispense with the meetings of equity shareholders and unsecured creditors of the Petitioner Companies. A copy of the order is annexed to the petition as Annexure-K.
7. It is submitted that the Adjudicating Authority vide its order dated 05.04.2022 ordered to serve notices to Regional Director, South East Region, Ministry of Corporate Affairs, Hyderabad, Registrar of Companies, Hyderabad and concerned Income Tax Authorities, Circle 8(1), Circle 2(1), Hyderabad and Official Liquidator, Hyderabad and to order publication. Pursuant to the said order, notices to the Regional Director, Registrar of Companies and concerned Income Tax Authorities, Circle 8(1), Circle 2(1), Hyderabad, Official Liquidator, Hyderabad were issued. It has been submitted that the petitioner company had made paper publication in English News Paper i.e. the Business Standard and Telugu News Paper i.e. Nava Telangana on 11.04.2022. The proof of the publication and the proof of service of the notice of herein was filed by means of Affidavit of Service dated 20.04.2022.
8. The Regional Director vide his report dated 5th July, 2022 has not objected to the Composite Scheme of Arrangement but has made certain observations. The petitioner companies had filed reply affidavit dated 06.07.2022 in response to the observation made by the Regional Director, South East Region, Ministry of Corporate Affairs, Hyderabad where the petitioner companies gave undertaking to appropriately comply with the observations made by the Regional Director the details are given below:
9. Further report has been filed by the Regional Director dated 27.07.2022 stating that the reply affidavit filed by the petitioner companies have been examined and it is submitted that Hon'ble NCLT may consider the same as deemed fit and proper in the circumstances.
10. OFFICIAL LIQUIDATOR'S REPORT:
The Official Liquidator has filed his report, vide OLR No. 41/2022 dated 20.06.2022 stating certain observations at point No. 22 of his report. The observations pointed out has been replied by the petitioner companies vide affidavit dated 28.06.2022 are mentioned against each.
Thereafter, Official Liquidator has filed his final report vide OLR No. 49/2022 in the Tribunal dated 01.07.2022 stating no further observations in this matter. Hon'ble Tribunal may decide the matter on merits.
11. OBSERVATION
We have heard the Learned Counsel appearing for the Petitioner Companies and perused the material papers on record. As regards to the observations pointed out by the Regional Director and compliance filed by the Petitioner Companies, it appears that Petitioner Companies undertakes to comply the necessary observations whenever required. The Official liquidator had also raised certain observations for which the Petitioner Companies filed its reply by way of Affidavit. After hearing the Counsel for the Petitioner Companies and considering the material on record, we are of the view that scheme is not opposed to public interest and the proposed Composite Scheme of Arrangement is in the interests of the Petitioner Companies and their respective shareholders, employees, creditors and all persons concerned. Hence the Composite Scheme of Arrangement can be approved with Appointed date i.e. 1st day of April, 2021. Hence ordered.
ORDER
12. After hearing the Counsel for the Petitioner Companies and after considering the material on record, this Tribunal passed the following order:
A. The Composite Scheme of Arrangement is hereby sanctioned with appointed date as 1st day of April, 2021 and shall be binding on all the members, employees, creditors and all other stakeholders of the Petitioner Companies.
B. While Approving the Scheme, we made it clear that this order should not be construed as an order in anyway granting exemption from payment of Stamp Duty, taxes or any other charges, if any, payable in accordance with law or in respect of any permission/compliance with any other requirement which may be specially required under any law.
C. The whole of the assets, property, rights and Liabilities of the Transferor Company shall be transferred without the requirement of any further act or deed to the Petitioner/Transferee Company.
D. We direct the Petitioner companies to comply with all the observations pointed out by the Regional Director and Official Liquidator as detailed in paragraphs 6 and 8 mentioned above.
E. We direct the Petitioner Companies to preserve the books of accounts and papers and records and the same shall not be disposed of without the prior permission of the Central Government in terms of provisions of Section 239 of the Companies Act, 2013.
F. We direct the Petitioner Companies to ensure statutory compliance of all applicable laws and also on sanctioning of the present Scheme, the Petitioner Companies shall not be absolved for any of theirs statutory liability in any manner.
G. All the legal proceedings pending by or against the Transferor Company shall be continued by or against the Transferee Company.
H. Though no representation has been received from the Income Tax Authorities despite service of notice by the Petitioner Companies, the tax implications, if any, arising out of the scheme is subject to final decision of Tax Authorities concerned and the decision of the Tax Authorities concerned shall be binding on the Transferee Company.
I. The Petitioner Companies are directed to strictly comply with the Accounting Treatment Standards prescribed under Section 133 of the Companies Act, 2013.
J. The sanction of the Scheme by this Tribunal shall not forbid the revenue authority from taking appropriate recourse for recovering the existing and previous tax liabilities of the Transferor and Transferee Companies.
K. We direct the Transferee Company to comply with the provisions of Section 2(41) of the Companies Act, 2013.
L. The Transferor Company shall be dissolved without going through the process of winding up.
M. The Petitioner Companies shall until the completion of the Scheme of Amalgamation, file a statement in such form and within such time as prescribed with the Registrar every year duly certified by a Chartered Accountant or a Cost Accountant or a Company Secretary to the effect that the Scheme of Amalgamation is being complied with in accordance with the orders of the Tribunal as required under Section 232(7) of the Companies Act, 2013.
N. We direct the Petitioner Companies involved in the Scheme to comply with Rule 17(2) of the Companies (Compromise, Arrangement and Amalgamation) Rules, 2013. The Petitioner Companies within 30 days after the date of receipt of certified copy of the order, shall cause certified copy to be delivered in Form INC-28 to the Registrar of Companies concerned for registration and on such certified copy being delivered, Registrar of Companies concerned shall take all necessary consequential action in respect of the Petitioner Companies.
O. The Petitioner Companies is further directed to take all consequential and statutory steps required in pursuance of the approved Composite Scheme of Arrangement under the provisions of the Companies Act, 2013 and submit necessary compliance and undertaking relating to the objections raised by the Regional Director (SER), MCA, GoI, Hyderabad.
P. The Petitioner Companies is directed to issue newspaper publication with respect to approval of Scheme, in the same newspapers in which previous publications were issued.
Q. Any person shall be at the liberty to apply to the Tribunal in the above matter for any directions that may be necessary.
R. Accordingly the CP (CAA) 07/230/HDB/2020 is hereby allowed and disposed of.
