Section 232. Merger and amalgamation of companies | Companies Act Integrated Ready Reckoner|Companies Act 2013|CAIRR

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Section 232. Merger and amalgamation of companies

Effective from 15-12-2016

(1) Where an is made to the under section 230 for the sanctioning of a compromise or an arrangement proposed between a and any such persons as are mentioned in that section, and it is shown to the —

(a) that the compromise or arrangement has been proposed for the purposes of, or in connection with, a scheme for the reconstruction of the company or companies involving merger or the amalgamation of any two or more companies; and

(b) that under the scheme, the whole or any part of the undertaking, property or liabilities of any company (hereinafter referred to as the transferor company) is required to be transferred to another company (hereinafter referred to as the transferee company), or is proposed to be divided among and transferred to two or more companies, the may on such application, order a meeting of the creditors or class of creditors or the or class of members, as the case may be, to be called, held and conducted in such manner as the may direct and the provisions of sub-sections (3) to (6) of section 230 shall apply mutatis mutandis.

(2) Where an has been made by the under sub-section (1), merging companies or the companies in respect of which a division is proposed, shall also be required to circulate the following for the meeting so ordered by the , namely:—

(a) the draft of the proposed terms of the scheme drawn up and adopted by the directors of the merging company;

(b) confirmation that a copy of the draft scheme has been filed with the ;

(c) a report adopted by the directors of the merging companies explaining effect of compromise on each class of shareholders, , promoters and non-promoter shareholders laying out in particular the exchange ratio, specifying any special valuation difficulties;

(d) the report of the expert with regard to valuation, if any;

(e) a supplementary accounting statement if the last annual accounts of any of the merging company relate to a ending more than six months before the first meeting of the company summoned for the purposes of approving the scheme.

(3) The , after satisfying itself that the procedure specified in sub-sections (1) and (2) has been complied with, may, by order, sanction the compromise or arrangement or by a subsequent order, make provision for the following matters, namely:—

(a) the transfer to the transferee company of the whole or any part of the undertaking, property or liabilities of the transferor company from a date to be determined by the parties unless the , for reasons to be recorded by it in writing, decides otherwise;

(b) the allotment or appropriation by the transferee company of any shares, , policies or other like instruments in the company which, under the compromise or arrangement, are to be allotted or appropriated by that company to or for any person:

Provided that a transferee company shall not, as a result of the compromise or arrangement, hold any shares in its own name or in the name of any trust whether on its behalf or on behalf of any of its or associate companies and any such shares shall be cancelled or extinguished;

(c) the continuation by or against the transferee company of any legal proceedings pending by or against any transferor company on the date of transfer;

(d) dissolution, without winding-up, of any transferor company;

(e) the provision to be made for any persons who, within such time and in such manner as the directs, dissent from the compromise or arrangement;

(f) where share capital is held by any non-resident shareholder under the foreign direct investment norms or guidelines specified by the Central Government or in accordance with any law for the time being in force, the allotment of shares of the transferee company to such shareholder shall be in the manner specified in the order;

(g) the transfer of the employees of the transferor company to the transferee company;

(h) where the transferor company is a and the transferee company is an unlisted company,—

(A) the transferee company shall remain an unlisted company until it becomes a listed company;

(B) if shareholders of the transferor company decide to opt out of the transferee company, provision shall be made for payment of the value of shares held by them and other benefits in accordance with a pre-determined price formula or after a valuation is made, and the arrangements under this provision may be made by the :

Provided that the amount of payment or valuation under this clause for any share shall not be less than what has been specified by the under any regulations framed by it;

(i) where the transferor company is dissolved, the fee, if any, paid by the transferor company on its shall be set-off against any fees payable by the transferee company on its authorised capital subsequent to the amalgamation; and

(j) such incidental, consequential and supplemental matters as are deemed necessary to secure that the merger or amalgamation is fully and effectively carried out:

Provided that no compromise or arrangement shall be sanctioned by the unless a certificate by the company’s auditor has been filed with the to the effect that the accounting treatment, if any, proposed in the scheme of compromise or arrangement is in conformity with the prescribed under section 133.

(4) Where an order under this section provides for the transfer of any property or liabilities, then, by virtue of the order, that property shall be transferred to the transferee company and the liabilities shall be transferred to and become the liabilities of the transferee company and any property may, if the order so directs, be freed from any charge which shall by virtue of the compromise or arrangement, cease to have effect.

(5) Every company in relation to which the order is made shall cause a certified copy of the order to be filed with the Registrar for registration within thirty days of the receipt of certified copy of the order.

(6) The scheme under this section shall clearly indicate an from which it shall be effective and the scheme shall be deemed to be effective from such date and not at a date subsequent to the appointed date.

(7) Every company in relation to which the order is made shall, until the completion of the scheme, file a statement in such form and within such time with the Registrar every year duly certified by a or a or a indicating whether the scheme is being complied with in accordance with the orders of the or not.

If a company fails to comply with sub-section (5), the company and every officer of the company who is in default shall be liable to a penalty of twenty thousand rupees, and where the failure is a continuing one, with a further penalty of one thousand rupees for each day after the first during which such failure continues, subject to a maximum of three lakh rupees.

(8) If a transferor company or a transferee company contravenes the provisions of this section, the transferor company or the transferee company, as the case may be, shall be punishable with fine which shall not be less than one lakh rupees but which may extend to twenty-five lakh rupees and every of such transferor or transferee company who is in default, shall be punishable with imprisonment for a term which may extend to one year or with fine which shall not be less than one lakh rupees but which may extend to three lakh rupees, or with both.

Explanation.—For the purposes of this section,—

(i) in a scheme involving a merger, where under the scheme the undertaking, property and liabilities of one or more companies, including the company in respect of which the compromise or arrangement is proposed, are to be transferred to another existing company, it is a merger by absorption, or where the undertaking, property and liabilities of two or more companies, including the company in respect of which the compromise or arrangement is proposed, are to be transferred to a new company, whether or not a , it is a merger by formation of a new company;

(ii) references to merging companies are in relation to a merger by absorption, to the transferor and transferee companies, and, in relation to a merger by formation of a new company, to the transferor companies;

(iii) a scheme involves a division, where under the scheme the undertaking, property and liabilities of the company in respect of which the compromise or arrangement is proposed are to be divided among and transferred to two or more companies each of which is either an existing company or a new company; and (iv) property includes assets, rights and interests of every description and liabilities include debts and obligations of every description.

Refer rule 18 and 19 of Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. To view the rule,Click Here

For Government Companies, Tribunal is substituted with Central Government vide notification dated 13th June, 2017.

(The exceptions, modifications and adaptations provided above shall be applicable only to those Government Companies which has not committed a default in filing its financial statements under section 137 of the said act or annual return under section 92 of the said act with the registrar)

To view the notification,Click Here

2(20) Company means a company incorporated under this Act or under any previous company law

For Government Companies, Tribunal is substituted with Central Government vide notification dated 13th June, 2017.

To view the notification,Click Here

For Government Companies, Tribunal is substituted with Central Government vide notification dated 13th June, 2017.

To view the notification,Click Here

2(55) Member, in relation to a company, means—

(i) the subscriber to the memorandum of the company who shall be deemed to have agreed to become member of the company, and on its registration, shall be entered as member in its register of members;

(ii) every other person who agrees in writing to become a member of the company and whose name is entered in the register of members of the company;

(iii) every person holding shares of the company and whose name is entered as a beneficial owner in the records of a depository

For Government Companies, Tribunal is substituted with Central Government vide notification dated 13th June, 2017.

To view the notification,Click Here

Refer rule 20 of Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. To view the rule,Click Here

For Government Companies, Tribunal is substituted with Central Government vide notification dated 13th June, 2017.

To view the notification,Click Here

For Government Companies, Tribunal is substituted with Central Government vide notification dated 13th June, 2017.

To view the notification,Click Here

2(75) Registrar means a Registrar, an Additional Registrar, a Joint Registrar, a Deputy Registrar or an Assistant Registrar, having the duty of registering companies and discharging various functions under this Act

2(51) Key Managerial Personnel, in relation to a company, means—

(i) the Chief Executive Officer or the managing director or the manager;

(ii) the company secretary;

(iii) the whole-time director;

(iv) the Chief Financial Officer;

(v) such other officer, not more than one level below the directors who is in whole-time employment, designated as key managerial personnel by the Board; and

(vi) such other officer as may be prescribed;

2(84) Share means a share in the share capital of a company and includes stock

2(41) Financial Year, in relation to any company or body corporate, means the period ending on the 31st day of March every year, and where it has been incorporated on or after the 1st day of January of a year, the period ending on the 31st day of March of the following year, in respect whereof financial statement of the company or body corporate is made up:

Provided that on an application made by a company or body corporate, which is a holding company or a subsidiary or associate company of a company incorporated outside India and is required to follow a different financial year for consolidation of its accounts outside India, the Tribunal may, if it is satisfied, allow any period as its financial year, whether or not that period is a year:

Provided further that a company or body corporate, existing on the commencement of this Act, shall, within a period of two years from such commencement, align its financial year as per the provisions of this clause

Provided also that in case of a Specified IFSC public company, which is a subsidiary of a foreign company, the financial year of the subsidiary may be same as the financial year of its holding company and approval of the Tribunal shall not be required.

Provided also that in case of a Specified IFSC private company, which is a subsidiary of a foreign company, the financial year of the subsidiary may be same as the financial year of its holding company and approval of the Tribunal shall not be required.

For Government Companies, Tribunal is substituted with Central Government vide notification dated 13th June, 2017.

To view the notification,Click Here

For Government Companies, Tribunal is substituted with Central Government vide notification dated 13th June, 2017.

To view the notification,Click Here

2(30) Debenture, includes debenture stock, bonds or any other instrument of a company evidencing a debt, whether constituting a charge on the assets of the company or not

Provided that— (a) the instruments referred to in Chapter III-D of the Reserve Bank of India Act, 1934; and

(b) such other instrument, as may be prescribed by the Central Government in consultation with Reserve Bank of India, issued by a company,

shall not be treated as debenture;

2(87) Subsidiary Company or Subsidiary, in relation to any other company (that is to say the holding company), means a company in which the holding company—

(i) controls the composition of the Board of Directors; or

(ii) exercises or controls more than one-half of the total voting power either at its own or together with one or more of its subsidiary companies:

Provided that such class or classes of holding companies as may be prescribed shall not have layers of subsidiaries beyond such numbers as may be prescribed.

Explanation.—For the purposes of this clause,—

(a) a company shall be deemed to be a subsidiary company of the holding company even if the control referred to in sub-clause (i) or sub-clause (ii) is of another subsidiary company of the holding company;

(b) the composition of a company’s Board of Directors shall be deemed to be controlled by another company if that other company by exercise of some power exercisable by it at its discretion can appoint or remove all or a majority of the directors;

(d) “layer” in relation to a holding company means its subsidiary or subsidiaries.

For Government Companies, Tribunal is substituted with Central Government vide notification dated 13th June, 2017.

To view the notification,Click Here

2(52) Listed company means a company which has any of its securities listed on any recognised stock exchange

For Government Companies, Tribunal is substituted with Central Government vide notification dated 13th June, 2017.

To view the notification,Click Here

2(82) Securities and Exchange Board means the Securities and Exchange Board of India established under section 3 of the Securities and Exchange Board of India Act, 1992 (15 of 1992)

2(8) Authorised Capital means such capital as is authorised by the memorandum of a company to be the maximum amount of share capital of the company

For Government Companies, Tribunal is substituted with Central Government vide notification dated 13th June, 2017.

To view the notification,Click Here

For Government Companies, Tribunal is substituted with Central Government vide notification dated 13th June, 2017.

To view the notification,Click Here

2(2) Accounting Standards means the standards of accounting or any addendum thereto for companies or class of companies referred to in section 133.

Refer General Circular 09/2019 dated 21.08.2019. To view the circular,Click Here

Refer rule 21 of Companies (Compromises, Arrangements and Amalgamations) Rules, 2016. To view the rule,Click Here

2(17) Chartered Accountant means a chartered accountant as defined in clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 (38 of 1949) who holds a valid certificate of practice under sub-section (1) of section 6 of that Act

2(28) Cost Accountant, means a cost accountant as defined in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 and who holds a valid certificate of practice under sub-section (1) of section 6 of that Act;

2(25) Company Secretary in Practice means a company secretary who is deemed to be in practice under sub-section (2) of section 2 of the Company Secretaries Act, 1980 (56 of 1980)

For Government Companies, Tribunal is substituted with Central Government vide notification dated 13th June, 2017.

To view the notification,Click Here

Substituted vide Companies (Amendment) Act, 2020 dated 28.09.2020 with effect from 21.12.2020. To view the Act, Click Here. To view the commencement notification, Click Here.

2(59) Officer includes any director, manager or key managerial personnel or any person in accordance with whose directions or instructions the Board of Directors or any one or more of the directors is or are accustomed to act

2(71) Public company means a company which—

(a) is not a private company; and

(b) has a minimum paid-up share capital, as may be prescribed:

Provided that a company which is a subsidiary of a company, not being a private company, shall be deemed to be public company for the purposes of this Act even where such subsidiary company continues to be a private company in its articles

15.1.18- Companies (Compromises, Arrangements and Amalgamations) Rules, 2016

18. Application for directions under section 232 of the Act.— (1) Where the compromise or arrangement has been proposed for the purposes of or in connection with a scheme for the reconstruction of any company or companies or the amalgamation of any two or more companies, and the matters involved cannot be dealt with or dealt with adequately on the petition for sanction of the compromise or arrangement, an application shall be made to the Tribunal under section 232 of the Act, by a notice of admission supported by an affidavit for directions of the Tribunal as to the proceedings to be taken.

(2) Notice of admission in such cases shall be given in such manner and to such per

15.1.19- Companies (Compromises, Arrangements and Amalgamations) Rules, 2016

19. Directions at hearing of application.— Upon the hearing of the notice of admission given under rule 18 or upon any adjourned hearing thereof, the Tribunal may make such order or give such directions as it may think fit, as to the proceedings to be taken for the purpose of reconstruction or amalgamation, as the case may be, including, where necessary, an inquiry as to the creditors of the transferor company and the securing of the debts and claims of any of the dissenting creditors in such manner as the Tribunal may think just and appropriate.

15.1.20- Companies (Compromises, Arrangements and Amalgamations) Rules, 2016

20. Order under section 232 of the Act.— An order made under section 232 read with section 230 of the Act shall be in with such variation as the circumstances may require

To view the return,Click Here

15.1.21- Companies (Compromises, Arrangements and Amalgamations) Rules, 2016

21. Statement of compliance in mergers and amalgamations.— For the purpose of sub-section (7) of section 232 of the Act, every company in relation to which an order is made under sub-section (3) of section 232 of the Act shall until the scheme is fully implemented, file with the Registrar of Companies, the statement in along with such fee as specified in the Companies (Registration Offices and Fees) Rules, 2014 within two hundred and ten days from the end of each financial year.

To view the return,Click Here

15.1.18- Companies (Compromises, Arrangements and Amalgamations) Rules, 2016

15.1.19- Companies (Compromises, Arrangements and Amalgamations) Rules, 2016

15.1.20- Companies (Compromises, Arrangements and Amalgamations) Rules, 2016

15.1.21- Companies (Compromises, Arrangements and Amalgamations) Rules, 2016

Commencement Notification under Companies (Amendment) Act, 2020 dated 21.12.2020

Companies (Amendment) Act, 2020 dated 28.09.2020

Enforcement Notification S.O. 3677(E) dated 07/12/2016

Exemptions to Government Companies [Amendment to GSR 463(E)] dated 13/06/2017

MCA Notification dated 19.01.2023 regarding Companies (Incorporation) Amendment Rules, 2023

Clarification under section 232(6) of the Companies Act, 2013-General Circular 09/2019 dated 21.08.2019

Form INC – 28 – Substituted vide MCA Notification dated 19.01.2023

Form No CAA.7- Order under section 232

Form No CAA.8- Statement to be filed by Register of Companies