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Foreign Nationals Company Incorporation in India

Investment in India by Foreign Company will be in accordance with FDI Policy in India, so foreign nationals incorporating a company in India are required to check out the required permission ( how much FDI is allowed in India for particular Sector ) under the Foreign Direct Investment (FDI ) policy If we take an example of Technology Company, FDI policy permits 100% FDI policy under Automatic route.

1.          Automatic Route

2.          Approval Route

#1. Automatic Route: In this route, prior approval of Government is not required, the only intimation is required to RBI in the Form FC-GPR, FDI Policy provides sectors where FDI is allowed at what percentage of Equity Capital of the Company.

#2. Approval Route: This is route prior approval of government is required, where FDI is allowed under approval route under FDI Policy.

Foreign Nationals Company Incorporation Procedure :

With the Increase ranking of India in ease of doing business, Company Incorporation Process is the main reason due to governments efforts on simplification process in registering or setting up a company in India, Here is a step by step guide on setting up a company by Foreign Companies  :

#1. Getting the Documents Notarized and Apostle of Foreign Nationals :

Indian companies Act requires that the Documents for foreign Directors and Foreign Investor or Shareholders should be notarised and Apostle, Documents may also be signed in India if the applicant is in India on Business Visa.  Documents of foreign entities like

  1. Certificate of Incorporation
  2. Charter documents like MOA AOA,
  3. Resolution by Board of Directors of Foreign Entities should be all in English Language and certified translated copy in English copy along with Notarised and apostle.
foreign nationals
Foreign Nationals Company Incorporation

#2. Indian Resident Director:

Indian companies act requires that every company in India should have at least on resident Director who is resident in India during the financial year, we at Fastlegal provides resident Director appointment services in India, you may avail our services if you do not have your own person.

#3. Registered Office Address for Company :

Every Company in India should have a Registered Office Address situated in India, you need to have one place as a Registered Office address. Fast legal helps in getting the registered Office address.

#4. Name Approval Application

Company name approval application is required to be made for availability of name of the company, the company name should be unique, no other company or LLP or trademark should be already there.

#5. Digital Signatures of Directors and Subscribers ( Foreign Nationals and Indian Resident Director ):

We need to obtain a digital signature in the name of Directors and shareholders from certifying authorities in India, Fastlegal team members help in getting the DSC. DSC is required for signing the incorporation documents that are required to be submitted to the Registrar of companies.

#6. Application for Incorporation of Company :

Once all the required documents of foreign nationals and Indian Resident Director are fine and digital signatures have been obtained than incorporation application is required to be submitted. All applications are verified by the registrar of companies and once he is satisfied with all the particulars of the application, he MCA issues a certificate of incorporation to the company.

#7. Company Bank Account :

The company bank account is now mandatory Opened along with the Incorporation application, Indian Company may open a separate Bank Account also.

#8. Funding of Subscription Money into company bank account :

Now subscription money for equity capital is required to be invested into the company by the subscribers to the company.

#09. Filing of Form FC-GPR to RBI

#10. Application for GST Registration

#11. Filing of Business Commencement Application to ROC

Once the Subscription money is entered in Companies Bank Account, the company is required to file business commencement application to Registrar of Companies online

Documents Required for Incorporation of Company by Foreign Nationals  :

Apostle and Notarized Signed Documents are required for foreign Shareholders and Directors.

For companies it will be :

  • Certificate of Incorporation,
  • Memorandum of Association,
  • Articles of Association,
  • Board Resolution duly passed for entering and forming Company in India and

 for Foreign Directors : 

  • Passport Copy,
  • Driving Licence and
  • Current Address proof in the form of a Bank Statement is required.

Please email us at [email protected] or place your request below for your company formation requirements in India

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Procedure for Setting up Branch Office(BO), Project Office (PO) and Liaison Office (LO) in India

Foreign Companies Setting up Branch Office(BO), Project Office (PO) and Liaison Office (LO) in India is required to make application to AD category Banks through which it wishes to peruse Banking Operations  

Eligibility Criteria for Setting up Branch Office / Project Office or Liaison Office in India 

  • The Applicant Company Should be Body Corporate Incorporated Outside India 
  • For Branch Office — a profit making track record during the immediately preceding five financial years in the home country and net worth of not less than USD 100,000 or its equivalent.
  • For Liaison Office — a profit making track record during the immediately preceding three financial years in the home country and net worth of not less than USD 50,000 or its equivalent.

Note: 
An applicant that is not financially sound and is a subsidiary of another company may submit a Letter of Comfort (LOC) (Annex A) from its parent/ group company, subject to the condition that the parent/ group company satisfies the prescribed criteria for net worth and profit.

Net worth : 

Net Worth [total of paid-up capital and free reserves, less intangible assets as per the latest Audited Balance Sheet or Account Statement certified by a Certified Public Accountant or any Registered Accounts Practitioner by whatever name called].

Cases in Which RBI Approval is required for Setting up Branch Office(BO), Project Office (PO) and Liaison Office (LO) in India

  • The applicant is a citizen of or is registered/incorporated in Pakistan;
  • The applicant is a citizen of or is registered/incorporated in Bangladesh, Sri Lanka, Afghanistan, Iran, China, Hong Kong or Macau and the application is for opening a BO/LO/PO in Jammu and Kashmir, North East region and Andaman and Nicobar Islands;
  • The principal business of the applicant falls in the four sectors namely Defence, Telecom, Private Security and Information and Broadcasting.
  • The applicant is a Non-Government Organisation (NGO), Non-Profit Organisation, Body/ Agency/ Department of a foreign government.

Procedure for making Application to AD-Category Bank for Setting up Branch Office(BO), Project Office (PO) and Liaison Office (LO) in India

If the Applicant Company fulfills the above mentioned eligibility Criteria , the Application can be made to AD category Bank through which applicant company wishes to peruse Banking Relations 

  1. The Application shall be made in Form Form FNC  to a designated AD Category – I bank along with Following Documents : 
  • Copy of the Certificate of Incorporation / Registration; Memorandum of Association and Articles of Association attested by the Notary Public in the country of registration.

    [If the original Certificate is in a language other than in English, the same may be translated into English and notarized as above and cross verified/attested by the Indian Embassy/ Consulate in the home country].
  • Audited Balance sheet of the applicant company for the last three/ five years in case of branch office/liaison office respectively.

    [If the applicants’ home country laws/regulations do not insist on auditing of accounts, an Account Statement certified by a Certified Public Accountant (CPA) or any Registered Accounts Practitioner by any name, clearly showing the net worth may be submitted]
  • Bankers’ Report from the applicant’s banker in the host country / country of registration showing the number of years the applicant has had banking relations with that bank.
  • Power of Attorney in favor of signatory of Form FNC in case the Head of the overseas entity is not signing the Form FNC.

The AD Category-I bank shall after exercising due diligence in respect of the applicant’s background, and satisfying itself as regards adherence to the eligibility criteria for establishing BO/LO/PO, antecedents of the promoter, nature and location of activity of the applicant, sources of funds, etc., and compliance with the extant KYC norms grant approval to the foreign entity for establishing BO/LO/PO in India. The AD Category-I banks may frame appropriate policy for dealing with these applications in conformity with the FEMA Regulations and Directions, However RBI will issue LIN to every BO/LO.

The validity period of an LO is generally for three years, except in the case of Non-Banking Finance Companies (NBFCs) and those entities engaged in construction and development sectors, for whom the validity period is two years only. The validity period of the project office is for the tenure of the project.

Once  applicant that has received a permission for setting up of a BO/LO/PO shall inform the designated AD Category I bank as to the date on which the BO/LO/PO has been set up. The AD Category I bank in turn shall inform Reserve Bank accordingly. In case an approval granted by the AD bank has either been surrendered by the applicant or has expired without any BO/LO/PO being set up, the AD Category I bank shall inform RBI accordingly.

Fastllegal provides Business setup Services for foreign Entities in India , companies may contact at [email protected] or Place a request at https://fastlegal.in/place-your-request.html

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FDI in Cash & Carry Wholesale Trading/Wholesale Trading in India

FDI in Wholesale Trading is allowed 100% under Automatic Route Subject to some Conditions. 

Meaning of Wholesale Trading/ Cash and Carry Wholesale Trading 

Cash & Carry Wholesale trading/Wholesale trading, would mean sale of goods/merchandise to retailers, industrial, commercial, institutional or other professional business users or to other wholesalers and related subordinated service providers. Wholesale trading would, accordingly, imply sales for the purpose of trade, business and profession, as opposed to sales for the purpose of personal consumption. The yardstick to determine whether the sale is wholesale or not would be the type of customers to whom the sale is made and not the size and volume of sales. Wholesale trading would include resale, processing and thereafter sale, bulk imports with ex-port/ex-bonded warehouse business sales and B2B e-Commerce

2. Guidelines for Cash & Carry Wholesale Trading/Wholesale Trading (WT)

(a) For undertaking WT, requisite licenses/registration/ permits, as specified under the relevant Acts/Regulations/Rules/Orders of the State Government/Government Body/Government Authority/Local Self-Government Body under that State Government should be obtained.

(b) Except in case of sales to Government, sales made by the wholesaler would be considered as ‘cash & carry wholesale trading/wholesale trading’ with valid business customers, only when WT are made to the following entities:

(I) Entities holding sales tax/ VAT registration/service tax/excise duty registration; or

(II) Entities holding trade licenses i.e. a license/registration certificate/membership certificate/registration under Shops and Establishment Act, issued by a Government Authority/Government Body/Local Self-Government Authority, reflecting that the entity/person holding the license/ registration certificate/ membership certificate, as the case may be, is itself/ himself/herself engaged in a business involving commercial activity; or

(III) Entities holding permits/license etc. for undertaking retail trade (like tehbazari and similar license for hawkers) from Government Authorities/Local Self Government Bodies; or

(IV) Institutions having certificate of incorporation or registration as a society or registration as public trust for their self consumption.

Note: An entity, to whom WT is made, may fulfill any one of the 4 conditions

(c) Full records indicating all the details of such sales like name of entity, kind of entity, registration/license/permit etc. number, amount of sale etc. should be maintained on a day to day basis.

(d) WT of goods would be permitted among companies of the same group. However, such WT to group companies taken together should not exceed 25% of the total turnover of the wholesale venture.

(e) WT can be undertaken as per normal business practice, including extending credit facilities subject to applicable regulations.

(f) A wholesale/cash & carry trader can undertake retail trading, subject to the conditions as applicable. An entity undertaking wholesale/cash and carry as well as retail business will be mandated to maintain separate books of accounts for these two arms of the business and duly audited by the statutory auditors. Conditions of the FDI policy for wholesale/cash and carry business and for retail business have to be separately complied with by the respective business arms.

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FDI in Limited Liability Partnership (LLP) in India

FDI in LLPs is permitted subject to the following conditions:

(i) FDI is permitted under the automatic route in Limited Liability Partnership (LLPs) operating in sectors/activities where 100% FDI is allowed through the automatic route and there are no FDI-linked performance conditions.

(ii) An Indian company or an LLP, having foreign investment, is also permitted to make downstream investment in another company or LLP in sectors in which 100% FDI is allowed under the automatic route and there are no FDI-linked performance conditions.

(iii) Conversion of an LLP having foreign investment and operating in sectors/activities where 100% FDI is allowed through the automatic route and there are no FDI linked performance conditions, into a company is permitted under automatic route.

Similarly, conversion of a company having foreign investment and operating in sectors/activities where 100% FDI is allowed through the automatic route and there are no FDI-linked performance conditions, into an LLP is permitted under automatic route.

(iv) FDI in LLP is subject to the compliance of the conditions of LLP Act, 2008.

Reference: https://dipp.gov.in/sites/default/files/CFPC_2017_FINAL_RELEASED_28.8.17.pdf 

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Meaning of Person of Indian Origin (PIO)

(PIO) means a citizen of any country other than Bangladesh or Pakistan, if

(i) he at any time held Indian Passport; or

(ii) he or either of his parents or any of his grandparents was a citizen of India by virtue of the Constitution of India or the Citizenship Act, 1955 (57 of 1955); or

(iii) the person is a spouse of an Indian citizen or a person referred to in subclause (i) or (ii).

Reference: https://dipp.gov.in/sites/default/files/CFPC_2017_FINAL_RELEASED_28.8.17.pdf

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Modes of Investment under the Foreign Direct Investment Scheme in India

Foreign Direct Investment in India can be made through the following modes:

fdi
FDI – Modes of Investment

A. Issuance of fresh shares by the company under FDI

An Indian company may issue fresh shares /convertible debentures under the FDI Scheme to a person resident outside India (who is eligible for investment in India) subject to compliance with the extant FDI policy and the FEMA Regulation.

B. Acquisition by way of transfer of existing shares by a person resident in or outside India under FDI

Foreign investors can also invest in Indian companies by purchasing/acquiring existing shares from Indian shareholders or from other non-resident shareholders. General permission has been granted to non-residents / NRIs for the acquisition of shares by way of transfer in the following manner:

  • Transfer of shares by a person resident outside India: 
    • Non-Resident to Non-Resident (Sale / Gift): A person resident outside India (other than NRI and OCB) may transfer by way of sale or gift, shares or convertible debentures to any person resident outside India (including NRIs but excluding OCBs). Note: Transfer of shares from or by erstwhile OCBs would require prior approval of the Reserve Bank of India
    • NRI to NRI (Sale / Gift): NRIs may transfer by way of sale or gift the shares or convertible debentures held by them to another NRI.
  • Transfer of shares/convertible debentures from Resident to Person Resident outside India

    A person resident in India can transfer by way of sale, shares / convertible debentures (including the transfer of subscriber’s shares), of an Indian company under the private arrangement to a person resident outside India, subject to the following along with pricing, reporting, and other guidelines