Volvo Group India Pvt. Ltd vs Regional Director, East Hyderabad

IN THE MATTER OF: Volvo Group India Pvt. Ltd. & Anr. ...Appellants

Versus

Regional Director (South-East region), Ministry of Corporate Affairs ...Respondent

Present:

For Appellants: Mr. Ramji Srinivasan, Sr. Advocate with Mr. Krishnendu Dutta, Mr. Saransh Jain, Ms. Sriparna Dutta and Mr. Madhavam Sharma, Advocates Ms. Sylona Mohapatra, Advocate

For Respondent: Mr. P.S. Singh, Sr. Advocate with Ms. Annu Singh, Advocate

ORDER

24.09.2019 :

1. I.A. No. 2986 of 2019 has been filed by the Appellants for withdrawal of

the present appeal with liberty to re-approach this Appellate Tribunal, if

required. The present appeal was filed against part of impugned orders (i)

dated 28.03.2019 passed in C.P. (CAA) No. 67/BB/2018 and (ii) dated

27.05.2019 passed in I.A. No. 201 of 2019 in C.P. (CAA) No. 67/BB/2018, by

the National Company Law Tribunal, Bengaluru Bench. In order dated

28.03.2019 while accepting the scheme of demerger the National Company

Law Tribunal had directed in operative order para 12(8)(c) as under: -2-

"Demerged Company to obtain No Objection Certificate from

concerned Direct/ Indirect Tax Authorities as tax amount alleged

to be due, in dispute, is over Rs. 1200 crores. In case No

Objection Certificate cannot be produced, the Demerged

Company shall provide Bank Guarantee to the Satisfaction of

Concerned Department"

2. The appeal was filed and this Appellate Tribunal passed order on

04.07.2019 as under:

"O R D E R 04.07.2019 - Having heard learned counsel for the Appellant and being satisfied with the ground, delay of 39 days in filing the appeal against the order dated 28th March, 2019 is hereby condoned. I.A. No. 2084 of 2019 stands disposed of.

Learned counsel for the Appellant is allowed to implead concerned 'Regional Director' East Hyderabad as party respondent. Necessary corrections be made in the cause title and paper book in the appeal by 5th July, 2019.

Let notice be issued on newly impleaded respondent. Requisite along with process fee be filed by 5th July, 2019.

Post the case for 'admission' on 8th August, 2019.

Until further orders stay of implementation of the scheme in

question. "

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3. Impugned order Para 12 (6) read as under:

"The Petitioner Companies shall within thirty days of the date of

the receipt of this order cause a certified copy of this order along

with a copy of scheme of Arrangement to be delivered to the

Registrar of Companies for registration in accordance with Rule

25 (7) of Companies (Compromises, Arrangements &

Amalgamations) Rules, 2016; and"

The National Company Law Tribunal vide order dated 27.05.2019 had

extended the time with regard to the compliance as directed in para 12 (6) of

impugned order dated 28.03.2019 till 31.07.2019. Para 12 (6) of impugned

order was with regard to the petitioner companies filing the copy of the Scheme

of Arrangement with Registrar of Companies. The learned counsel for the

Appellant states that as per the impugned order para 12(8)(c) it was necessary

to get No Objection Certificates from authorities and the applicant has

succeeded in taking the No Objection Certificates from all the concerned

authorities.

4. Para 1 to 6 of I.A. No. 2986 of 2019 filed for withdrawal read as under:

"1. That the instant appeal was filed by the Appellants being

aggrieved by the impugned orders (i) dated 28.03.2019 passed in

C.P. (CAA) No. 67/BB/2018 and (ii) dated 27.05.2019 passed in

I.A. No. 201 of 2019 in C.P. (CAA) No. 67/BB/2018, by the

Hon'ble National Company Law Tribunal, Bengaluru (henceforth, -4-

'NCLT'). The contents of the present appeal may be treated as part

and parcel of the present application.

2. It is submitted that while allowing the company petition by

approving the scheme of arrangement between the appellants, Ld.

NCLT had held in para 12(8)(c) of the impugned order dated

28.03.2019 that the acceptance of the scheme of arrangement

between the Appellant No. 1 and the Appellant No. 2 and their

respective shareholders and creditors (hereinafter referred to as

'scheme of arrangement'), can only be made effective subject to

the Appellant No. 1 obtaining no objection certificates (the

'NOC') from the direct/indirect tax authorities. The said impugned

order further required that in case, no objection certificates were

not produced, the appellants were to provide bank guarantee(s) to

the satisfaction of the tax authorities.

3. That being aggrieved by the above said observation, the

appellants had preferred the present appeal, seeking set-aside of

the above said condition contained in paragraph 12(8)(c) of the

impugned order dated 28.03.2019, the said observation being

without authority of law.

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4. It is submitted that before filing of the present appeal, the

appellants had got NOC from the Deputy Commissioner of Income

Tax with respect to its liabilities under the Income Tax Act and

Rules and another NOC from the Office of the Assistant

Commissioner of Central Tax with respect to its liabilities under

the Central Goods and Services Tax Act, 2017, Central Excise Act,

1944, the Finance Act, 1994 and the respective Rules. The copies

of the aforesaid NOCs had been produced along with the

memorandum of appeal at Annexure A-6.

5. It is submitted that after filing of the present appeal and as

on date, the appellants have got NOC from the Department of

Revenue, Office of the Principal Commissioner of Customs, as

well. In light thereof, the condition in the impugned order dated

28.03.2019, for production of NOCs from direct/ indirect tax

authorities, stands satisfied. A copy of the NOC dated 23.08.2019

is annexed herewith as Annexure A-1.

6. It is submitted that in light of above and without prejudice

to the rights and contentions of the appellants, the present

application has been preferred by the appellants to seek

permission of this Hon'ble Tribunal to withdraw the present

appeal with liberty re-approach this Hon'ble Tribunal, if the need

arises."

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5. The submission of the Learned Counsel for the Appellant is that they

want to withdraw this appeal as all the necessary permissions had been

obtained though it was not necessary and appeal had to be filed. Learned

counsel submits that now the Appellant has taken the permissions but fear is

that the ROC may now not entertain the appellant considering the time as

given by the National Company Law Tribunal by its order dated 27.05.2019

has expired.

6. Considering above factors, as the appellant wants to withdraw the

appeal, we permit the withdrawal. However, considering the apprehension

expressed by the counsel for the Appellant, under Rule 15 r/w Rule 11 of

National Company Law Appellate Tribunal Rules 2016, we extend the time for

compliance as given in para 12 (6) of the impugned order dated 28.03.2019 till

15th November, 2019.

The appeal is disposed of accordingly.

[Justice A.I.S. Cheema] Member (Judicial)

[Kanthi Narahari] Member (Technical) sa/sk

I.A. No. 2986 of 2019 in Company Appeal (AT) No. 175-176 of 2019