Particulars,Amount (in Rs.),,,
Authorized Share Capital,,,,
5,30,00,000 Equity Shares of INR 10 each","53,00,00,000",,,
1,15,32,174 16.75% Series A CCPS of INR 10 each","11,53,21,740",,,
57,85,827 14.75% Series B CCPS of INR 10 each","5,78,58,270",,,
45,82,000 14.75% Series C CCPS of INR 10 each","4,58,20,000",,,
1,73,35,500 16.00% Series D CCPS of INR 10 each","17,33,55,000",,,
78,98,400 17.75% Series E CCPS of INR 10 each","7,89,84,000",,,
28,66,099 17 .75% Series F CCPS of INR 10 each","2,86,60,990",,,
Total,"1,03,00,00,000",,,
Issued, Subscribed and Paid-up Share Capital",,,,
4,68,74,349 Equity Shares of INR 10 each","46,87,43,490",,,
1,15,32,174 16.75% Series A CCPS of INR 10 each","11,53,21,740",,,
57,85,827 14.75% Series B CCPS of INR 10 each","5,78,58,270",,,
45,82,000 14.75% Series C CCPS of INR 10 each","4,58,20,000",,,
1,73,35,500 16.00% Series D CCPS of INR 10 each","17,33,55,000",,,
78,98,400 17.75% Series E CCPS of INR 10 each","7,89,84,000",,,
28,66,099 17.75% Series F CCPS of INR 10 each","2,86,60,990",,,
Total,"96,87,43,490",,,
Para,Observation by Regional Director,"Undertaking   of   the
Petitioner Companies",,
2(a),"On examination of the report of the Registrar of Companies, Pune dated
12/02/2024 for both the Petitioner Companies falls within the jurisdiction of
ROC, Pune. It is submitted that no representation regarding the proposed
scheme of Amalgamation has been received against the Petitioner Transferor
Company. Further, the Petitioner Transferor Company has filed Financial
Statements up to 31/03/2023. The ROC, Pune has further submitted that in his
report dated 12/02/2024 which are as under: -
i. That the ROC Pune in its report dated 12/02/2024 has also stated that No
Inquiry, Inspection, Investigations, Prosecutions under CA, 2013 have been
pending against the Petitioner Companies.
ii. The applicant companies are neither vanishing nor scam related companies.
 iii. In view of above the interest of the Shareholders & creditors of the
applicant companies must be secured. Accordingly, the matter may be decided
on merits in light of Para 11. Hon'ble NCLT may kindly direct the Petitioner
Companies to furnish the reply on the observations of ROC, Pune to satisfy
Hon'ble NCLT that scheme of merger is in public interest and creditors interest
and will not affect adversely","In so far as the observation made
in Paragraph 2(a)(i), 2(a)(ii) and
2(a)(iii) of the said Report is
concerned, it is submitted that the
observation made by the ROC is
merely factual in nature and no
further response in required to
that extent.",,
2(b),"Further ROC has mentioned as follows: - Transferee company should undertake
to comply with the provisions of section 232(3)(i) of the Companies Act, 2013
through appropriate affirmation in respect of fees payable by Transferee
Company for increase of share capital on account of merger of transfer of
companies.","In so far as the observation made
in Paragraph 2(b) of the said
Report is concerned, it is hereby
submitted that the Transferee
Company undertakes to comply
with the provisions set out in
Section 232(3)(i) of the Companies
Act, 2013 and where the
Transferor Company is dissolved,
the stamp duty, if any, paid by the
Transferor Company on its
authorized share capital shall be
set off against any stamp duty
payable by the Transferee
Company on their authorized
share capital subsequent to the
amalgamation. Therefore,
remaining fee, if any after setting
off the stamp duty already paid
by the Transferor Company on its
authorized capital, shall be paid
by the Transferee Company on
the increased authorized capital
subsequent to amalgamation.",,
2(c),"In compliance of Accounting Standard-14 or IND-AS 103, as may be applicable,
the resultant company shall pass such accounting entries which are necessary in
connection with the scheme to comply with other applicable Accounting
Standards including AS-5 or IND AS-8 etc.","In so far as the observation made
in Paragraph 2(c) of the said
Report is concerned, the
Transferee Company undertake
that in addition to compliance of
AS-14 (IND AS103), the
Petitioner/Transferee Company
shall pass such accounting
entries which are necessary in
connection with the Scheme to
comply with all applicable
Accounting Standards such as
AS-5 (IND AS8), to the extent
applicable.",,
2(d),"The Hon'ble Tribunal may kindly direct the Petitioner Companies to file an
affidavit to the extent that the Scheme enclosed to the Company Application and
Company Petition are one and same and there is no discrepancy, or no change
is made.","In so far as the observation made
in Paragraph 2(d) of the said
Report is concerned, the
Petitioner Companies submit and
confirm that the Scheme enclosed
in the Company Application and
Company Petition are one and the
same and there is no discrepancy,
or no change is made.",,
2(e),"The Petitioner Companies under provisions of section 230(5) of the Companies
Act 2013 have to serve notices to concerned authorities which are likely to be
affected by the Amalgamation or arrangement. Further, the approval of the
scheme by the Hon'ble Tribunal may not deter such authorities to deal with any
of the issues arising after giving effect to the scheme. The decision of such
authorities shall be binding on the petitioner companies concerned.","In so far as the observation made
in Paragraph 2(e) of this Report is
concerned, the Petitioner
Companies confirm that as per the
provisions of section 230(5) of the
Companies Act, 2013, the
Petitioner Companies have served
notices to all the concerned
authorities; Regional Director,
Registrar of Companies, the
Official Liquidator (by Transferor
Company), the Income Tax
Department and the GST
Department and the observations
made by the concerned
authorities have been dealt with
by the Petitioner Companies,
wherever required. Further, the
approval of the Scheme by the
Hon'ble Tribunal may not deter
such authorities to deal with any
of the issues arising after giving
effect to the Scheme. Such issues
will be addressed in accordance
with the law and the Petitioner
Companies shall be bound by any
decision of such authorities that
is made in accordance with law.",,
2(f),"As per Definition of the Scheme,
‘Appointed Date’ means March 10, 2023 or such other date as may be
decided or approved by the Tribunal (as defined hereinafter) or such other
Appropriate Authority and accepted by the Board of Directors.
‘Effective Date’ means the date on which the Scheme shall become
effective pursuant to Clause 28 of the Scheme. Any references in this Scheme to
the date of ""Scheme becoming effective"" or ""coming into effect of this Scheme"" or
effectiveness of the scheme"" or ""Scheme taking effect"" shall mean the Effective
Date. ‘Record Date(s)’ means the date fixed by the Board of Directors of
the Transferor Company or committee thereof, if any, in consultation with the
Board of Directors of the Transferee Company for the purpose of determining the
shareholders of Transferor Company who shall be entitled to receive
Amalgamation Shares of the Transferee Company, as consideration as per
Clause 20.1 of this Scheme. Further the Petitioners may be asked to satisfy the
Hon'ble NCLT about compliance of circular no. F. No. 7 /12/2019/CLI dated
21.08.2019 issued by the Ministry of Corporate Affairs","In so far as the observation made
in Paragraph 2 (f) of the said
Report is concerned, the
Petitioner Companies clarify that
the Appointed Date is 10th
March, 2023 as mentioned in the
Scheme which is in compliance
with the Companies Act, 2013 and
that the Scheme shall take effect
from such Appointed Date.
Further, the Petitioner Companies
undertakes to comply with the
requirements clarified vide circular
No.7/12/2019/CL-I dated 21st
August, 2019 issued by the
Ministry of Corporate Affairs.",,
2(g),"Petitioner Companies shall undertake to comply with the directions of the
concerned sectoral Regulatory, if so required.","In so far as the observation made
in Paragraph 2(g) of the said
Report is concerned, the
Petitioner Companies submit that
it has duly submitted notices on
all relevant Regulatory
Authorities such as Registrar of
Companies, Regional Director, the
Income Tax Authority and GST
Authorities and undertake to
comply with any other sectoral
authority as may be applicable.",,
2(h),"Petitioner Companies shall undertake to comply with the directions of Income
tax department & GST Department, if any.","In so far as the observation made
in Paragraph 2(h) of the said
Report is concerned, it is
submitted that the Petitioner
Companies hereby undertake to
ensure compliance of all the
provisions of the Income tax Act
and GST Act and Rules made
thereunder pursuant to the
Scheme. Further, the approval of
the Scheme by this Tribunal may
not deter Income-tax authorities
or the GST authorities to deal with
tax related issues arising after
giving effect to the Scheme and
the Petitioner Companies submit
that any tax related issues arising
out of the Scheme will be met and
answered during the course of
regular tax assessments in
accordance with the provisions of
the Income-tax Act, 1961 and GST
Act.",,
2(i),"The Petitioner Company states that the Transferee Company shall be in
compliance with provisions of Section 2(1B) of the Income Tax Act, 1961. In this
regard, the petitioner company shall ensure compliance of all the provisions of
Income Tax Act and Rules thereunder.","In so far as the observation made
in Paragraph 2(i) of the said
Report is concerned, Petitioner
Companies undertake to comply
with the provisions of Income Tax
Act 1961 including the provision
of section 2(1B) of the Income Tax
Act, 1961.",,
2(j),"Petitioner Companies may satisfy the Hon'ble NCLT that the interest of creditors
shall be protected on implementation of the scheme.","In so far as the observation made
in Paragraph 2(j) of the said
Report is concerned, Petitioner
Companies undertakes that the
interest of the creditors shall be
duly protected on the
amalgamation of the Transferor
Company with the Transferee
Company.",,
2(k),"Petitioner Transferor Company has foreign shareholders; hence Petitioner
Company shall undertake to comply with rules, regulations, guidelines of
FEMA, FERA and RBI.","In so far as the observation made
in Paragraph 2(k) of the said
Report is concerned, Petitioner
Companies undertakes to comply
with the regulations, guidelines of
FEMA, FERA and RBI.",,
Sr.
No.","Petitioner
Company","Name of
Shareholder","% of shares
held",Remark
1.,"IAC International
Automotive India
Private Limited","IACNA
Mauritius
Limited",25%,"No Form BEN-
2 has been
filed by any of
the Petitioner
Companies as
per records
available at
MCA21 Portal
2.,"Lumax Integrated
Ventures Private
Limited","Lumax Auto
Technologies
Ltd",100%,
5.,"With reference to clause No. 21 of the scheme it is stated that such clauses
overrides the provision of Companies Act, 2013 namely Section 232(3)(i)
which inter-alia provides that, 'if a company is dissolved, the fees paid by
such company on its Authorised Capital shall be set off against any fees
payable by the transferee company on its Authorised Capital. Hon'ble
Tribunal may be pleased to direct Transferee Company to pay differential
amount, if any, after setting off fees already paid by the Transferor
Company.","As regards observation in para 5, it is
submitted that the Transferee Company
undertakes to comply with the
provisions of Section 232(3)(i) of the
Companies Act, 2013 as regards to the
combination of Authorised share
capital, where the Transferor Company
is dissolved and the fees, if any, paid
by the Transferor Company on their
Authorised share capital shall be set-
off against any fees payable by the
Transferee Company on its Authorised
share capital subsequent to the
Amalgamation.
As per clause 21 of the Scheme, it is
specified that no stamp duties and fees
would be payable for increase in the
authorized share capital of the
Transferee Company to the extent of
fees already paid in relation to the
authorized share capital of the
Transferor Company.
Therefore, remaining fee, if any after
setting off the stamp duty already paid
by the Transferor Company on its
authorized capital, shall be paid by the
Transferee Company on the increased
authorized capital subsequent to
amalgamation.",,
6.,"It has been noticed from the Financial Statement as at 31.03.2023 of
Transferor Company that the company owes Rs.14,715.01 to MSME In
this respect it is stated that under MSMED Act, 2006 the buyer is to make
payment within 45 days of it becoming due. In case of failure to pay to the
MSME supplier, the company is liable to pay compound interest rate.
Hon'ble Tribunal may be require the Transferor Company to clarify
whether they have paid the said amount to the MSME creditor or whether
there is any dispute with respect to payment of such amount. In case of
dispute with regard to amount due whether the reference has been made
to the MSME facilitation council constituted by the respective
Government or not. Company may also be required to produce form
MSME-1 filed with the ROC for the above said dues.","As regards observation in para 6, the
First Petitioner Company / Transferor
Company clarifies that the amounts
outstanding as stated in the para 6 of
the report is incorrect and the that said
amounts outstanding to MSME were:
- Rs. 1894.06 Lakhs as at 31.03.2023;
- Rs. 2277.43 Lakhs as at 31.03.2022;
and
- Rs. 584.29 Lakhs as at 31.03.2021.
A copy of the aforesaid financial
statements for FY 2022-2023 are
annexed as Annexure ""B"" to the reply
filed by the Petitionersto the RD report.
Reference is made to note number 20 of
financials of FY 2022-23, where all the
above three figures are captured.
Further it is submitted that the dues to
the MSME’s are generally paid
within the prescribed limit of 45 days
and provision has been appropriately
made for the interest amount wherever
the dues are outstanding for more than
the prescribed time limit. Also basis the
Provisional Financial Statements as on
30th June 2023 annexed in the Second
Motion Petition the outstanding dues
of MSME have reduced from 1894.06
lakhs to 914.03 lakhs. A copy of the
provisional financial statements is
annexed herewith and marked as
Annexure C. These outstanding
amounts shall be taken over by the
Transferee Company if not paid by the
Transferor Company and payment shall
be made in the ordinary course of
business.
There is no dispute or litigations on the
payments of the said amount.
Accordingly, the question whether the
reference has been made to the MSME
facilitation council constituted by the
respective Government or not does not
arise. The Transferor Company has
filed returns in respect to outstanding
payments to Micro and Small
Enterprises in MSME FORMS 1 with
the ROC. (Copy of the MSME Forms 1
filed with the Registrar of Companies
are annexed herewith and marked as
Annexure D)",,
7.,Clause No. 22 of proposed scheme of amalgamation provides for Change,"As regards the observation in para 7,",,
,"of name of the Transferee Company which is reproduced as follows:
‘Upon this Scheme becoming effective, the name of the Transferee
Company shall stand changed, from ""Lumax Integrated Ventures Private
Limited"" to ""IAC International Automotive India Private Limited"" or such
other name as may be decided by the Board of Directors and which is
made available by the RoC, In accordance with the provisions of Section
13 and other applicable provisions of the Act. Furthermore, the Clause I
of the Memorandum of Association of the Transferee Company and
Articles of Association of the Transferee Company, wherever the name of
the Transferee Company is specified, shall, without any requirement of a
further act, deed, be and stand altered, modified and amended.’
The clause to an extent it proposes that the name of Transferee Company
namely ""Lumax Integrated Ventures Private Limited"" shall be changed to
IAC International Automotive India Private Limited"", that is Transferor
Company, is repugnant to the provisions of Sub-Rule (l)(n) of Rule SA, of
Companies (Incorporation) Rules, 2014 provides as follows:
‘the proposed name is identical to the name of a company dissolved as
a result of liquidation proceeding and a period of two years has not
elapsed from the date of such dissolution: Provided that if the proposed
name is identical with the name of a company which is struck off in
pursuance of action under section 248 of the Act or under section 560 of
the Companies Act, 1956 (1 of 1956) then the same shall not be allowed
before the expiry of twenty years from the date of publication in the
Official Gazette being so struck off;’","Petitioner Companies undertake that
the Change in Name of Transferee
Company as mentioned in the Scheme
will be done in compliance with the
provisions of section 13 of the
Companies Act, 2013 r/w relevant
rule(s) of the Company (Incorporation)
Rules, 2014. That the proposed change
of name of the Transferee Company to
IAC International Automotive India
Private Limited or such other name as
may be decided by the Board of
Directors and which is made available
by the Registrar of Companies will be
subject to approval of the Central
Registration Centre (CRC) which is an
initiative of Ministry of Corporate
Affairs (MCA) and will be done by
following additional applicable
procedures. This will also not create
any confusion with any authority since
there will be a fresh certificate which
shall be obtained from the Registrar of
Companies stating the change of name.
Also, the CIN of the Transferee
Company will remain the same. Further,
the PAN of the Transferee Company as
mentioned in communication to all
authorities including Income Tax, GST,
MCA, etc. will remain the same.
Lastly, it is submitted that as per clause
8 of the Companies (Incorporation)
Rules, 2014, such change of name is
permitted for use by group company in
the course of compromise, arrangement
and amalgamation.
Accordingly, since the name change is
for a group company and not to any
third party or outside the group, it is
allowed to change the name as
aforesaid through a scheme of
amalgamation. In support of this, there
are various precedents wherein the
NCLT Mumbai has permitted such
change of name belonging to the
Transferor Company to be used by the
Transferee Company by way of change
of name clause being proposed in the
scheme of amalgamation wherein post
sanction of the scheme of
amalgamation, it is filed with the ROC
and thereafter the applicable process
followed by the Transferee Company
for name change with further approval
of CRC is obtained.
Some of the latest precedents wherein
NCLT Mumbai has allowed the name
change of the Transferee Company to
that of the Transferor Company under
schemes of amalgamation are given as
follows and annexed herewith and
marked as Annexure E1-E3 to this
affidavit: -
i) CP (CAA) /11/MBIV/2021 connected
with CA (CAA)/1064/MB-IV/2020 in
the matter of Scheme Of Amalgamation
Of Bharat Serums and Vaccines Limited
(‘First Petitioner Company’ or
‘First Transferor Company’) And
BSV Life Private Limited (‘Second
Petitioner Company’ or ‘Second
Transferor Company’) With
Aksipro Diagnostics P Limited
(‘Third Petitioner Company’ or
‘Transferee Company’) and their
respective shareholders by way of
order dated 02 August 2021;
ii)CP(CAA)/No.172/MB/20 21
connected with CA(CAA) No.
54/MB/2021 in the matter of Composite
Scheme of Amalgamation Amongst",,
,,"Gateway East India Private Limited and
Gateway Distriparks Limited into
Gateway Rail Freight Limited and their
respective shareholders by way of
order dated 12 December 2021
iii) CP(CAA)/3904/2019 connected with
CA(CAA)/248/2019 in the matter of
Scheme of Merger by Absorption of
Menon and Menon Limited with MML
Industries Limited and their respective
shareholders by way of order dated 20
January 2020
Further, Rule 8 of the Companies
(Incorporation) Rules, 2014 clarify that
“The names released on change of
name by any company shall remain in
data base and shall not be allowed to
be taken by any other company
including the group subject to specific
direction from the competent authority
in course of compromise, arrangement",,
