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22 August 2019

Mergers and Acquisitions - MCA clarifies on ‘Appointed date’ for s.232(6)


22nd August 2019

Ministry of Corporate Affairs has clarified that companies may choose any specific calendar date or a date tied to occurrence of any event like date of grant of license, or fulfillment of preconditions, agreed upon by parties for the purpose of stating an ‘Appointed Date’ as required under Section 232(6) of the Companies Act 2013.

Such date shall also be deemed to be the ‘acquisition date’ and date of transfer of control for the purpose of confirming to Accounting Standards.

General Circular 9/2019, dated 21-8-2019 issued for this purpose, also clarifies that if a specific calendar date is chosen as an appointed date, it may precede the date of filing of application for the scheme of merger/amalgamation in NCLT.

However, if the said date is significantly ante dated beyond a year from the date of filing, justification for same has to be specifically brought out in the scheme itself. Circular also notes that such ante dating should not be against the public interest.

In case the scheme identifies the appointed date based on occurrence of a trigger event, it needs to be mentioned in the scheme itself.
 
In case such event-based date is subsequent to date of filing of order with registrar, the company has to file an intimation for the same with the registrar within 30 days of coming into force of such scheme.

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