- (1.) Rejoinder filed by Mr. Sachin Jain, Advocate is taken on record. This is a Second Motion Petition. The First Motion Petition, C.P No.171 of 2013 was allowed on December 18, 2013 by this Court accepting the prayer for dispensation of convening of meetings of Equity Shareholders of petitioner/Transferor Company i.e. Ericsson India Private Limited and Ericsson India Global Services Private Limited since the Transferor Company did not have any secured or unsecured creditors. Notice of the present petition was issued to the Regional Director and Official Liquidator and was also directed to be published in the Financial Express (English), Jansatta (Hindi) both Delhi Editions and in the Official Gazette of State of Haryana. Affidavit of publication has been filed. The Regional Director has filed his objections and has stated that "at the time of Appointed Date there are different shareholders and approval/consent given by shareholders who are shareholders at present".
(2.) Mr. Suri explains that this objection is not sufficient to non-suit the Second Motion Petition. It is only an observation made by the Regional Director calling upon the Transferee Company to give undertakings for meeting all compliances from the Reserve Bank of India as required under FEMA for above transactions involving foreign banks/entities. Mr. Suri representing the Transferor Company further points out to para.5.1.12 of the scheme of merger of the two companies where it is recorded that the Transferee Company shall remain under obligation towards Income Tax Department, Sales Tax Department and Service Tax etc. from the Appointed Date. However, insofar as compliances of Reserve Bank of India as required under FEMA are concerned, undertakings by way of affidavits have been filed before the Company Court which are taken as good and sufficient to guard the interests of Reserve Bank of India. Be that as it may, the Chartered Accountants appointed by this Court has submitted a report in which the following view has been expressed:- "We are of the opinion that affairs of the Telcordia Technologies India Private Limited (The Transferor Company) were designed to set off "Carry Forward and Set off of Accumulated Losses and Unabsorbed Depreciation" of the Transferor Company against profits of the profit making Transferee Company in a manner prejudicial to the interest of the revenue and public at large."
(3.) The Official Liquidator in his objections dated April 28, 2014 has reiterated the view of the Chartered Accountant. Mr. Suri points out that under Section 72-A of the Income Tax Act, 1961, carry forward and set off of accumulated losses and unabsorbed depreciation are allowed only if the following conditions are satisfied: the Transferor Company should be a Company owning an industrial undertaking. the Transferor Company should have continuously held on the date of amalgamation at least three-fourths of the book value of fixed assets held by it two years prior to the date of merger etc. Since the above conditions are not satisfied in the instant case, the Transferee Company is not eligible to carry forward and set off accumulated losses and unabsorbed deprecation of the Transferor Company. Therefore, it was never the intention to carry forward and set off the accumulated losses and unabsorbed deprecation of the Transferor Company. Hence the question of not disclosing the same to this Court does not arise.;