Setting up a business in India has been liberalized over the years, still it requires company formation, approvals if required, legal compliances and registration with various authorities. We provide our clients Business Setup Solution based on “turnkey” methodology which takes care of approvals, legal compliances, registrations with authorities etc. to provide a ready to operate business setup in shortest possible time frame.
Setting up a business in India involves various steps, however the process can broadly be classified into three steps:
- Approval for Investments
- Incorporation / Formation of Company, Foreign Branch Office / Liaison Office
- Registration with various Authorities
Auditor India have earned creditable experience in acting as business advisors to strategise and oversee the implementation of business initiation plans. We support start-up ventures at all stages of the business cycle – from identifying appropriate entry routes to assisting in deal structuring and providing post set-up services particularly the following
- Business and India Entry Strategy and advisory services
- Setting up Liaison office, subsidiaries, branch office, Representative office etc
- Incorporation of the Indian Entity
- Compliance with FDI regulations including FIPB approvals
- Identification of suitable Indian Business Partner or associate
- Feasibility studies including market studies
- Business valuation and Goodwill valuation
How one can enter in Indian Market One can enter the Indian market in more ways than one and these options and details are:
- Liaison office
- Branch Office
- 100% Owned subsidiary
- Project Office
- Joint venture with an Indian partner
- Foreign Direct Investment (FDI)
- Public Holding of Part Share
- Appointing Agent or Distributor
Approval and Certificate of Establishment
Any foreign company intending to open a liaison Office in India is required to obtain prior approval from the RBI, the apex foreign exchange management authority in India. Approval is usually granted for three years and can be renewed on expiry thereof. In addition to above, the foreign company is also required to obtain a Certificate of establishment of place of business in India from the Registrar of Companies (ROC).
Suitability of a Liaison Office
The liaison office generally acts as a communication channel between the parent company overseas and its present or prospective customers in India. The liaison office can also be set up to establish business contacts or gather market intelligence to promote the products or services of the overseas parent company. The liaison Office cannot undertake any business activity in India nor earn any income in India. The liaison Office has to meet its entire expenses from funds received from the parent company through normal banking channels. At the time of closure of the liaison Office, the RBI grants permission to repatriate the balance in the Indian bank account to the parent company. Since the liaison Office is not permitted to earn any income, it should not constitute a taxable entity in India. However, the liaison Office would be required to withhold tax from certain payments and hence to comply with the requisite tax withholding requirements under the domestic tax law. In short Liaison Office procure order & send the same to parent company, parent company to supply the ordered goods and payment can pursued by liaison office. However payment too be directly remitted to the parent company and no income tax in India on such transaction.
Branch OfficeA branch would mean an establishment carrying on substantially the same activity as its Head Office.
As per the guidelines laid down by the RBI, the Branch Office in India is allowed to carry on only the following activities:
• Export / Import of goods
• Rendering professional or consultancy services
• Carrying out research work, in which the parent company is engaged
• Promoting technical or financial collaboration between Indian companies and parent or overseas group companies
• Representing the parent company in India and acting as buying / selling agent in India
• Rendering services in Information Technology and development of software in India
• Rendering technical support to the products supplied by parent / group companies
• Approval / Incorporation
Approval and Certificate of Establishment
Foreign companies intending to open a Branch Office in India need to obtain prior permission of RBI which would encompass even approval to the scope of activities that are intended to be carried out in India. In addition to this, the foreign company is also required to obtain a Certificate of establishment of place of business in India from the Registrar of Companies (ROC).
Typical Points about Branch Office:
• This is considered a part of the foreign company and is not treated as a separate legal entity.
• The office can undertake trading activities, but not manufacturing.
• It is subject to taxation in India at 41.82% on income accrued in India.
• If there is a double taxation agreement with the country in which the foreign company is incorporated, the tax paid in India can be set off against the total tax payable by the parent company abroad.
• Branch offices may repatriate profits to their Head Office without obtaining prior approval.
• The Branch Office would not expand its activities or undertake any new trading, commercial or industrial activity other than that is expressly approved by the RBI
• The entire expenses of the Branch Office in India will be met either out of the funds received from abroad through normal banking channels or through income generated by it in India
• The Branch Office will not accept any deposits in India
Repatriation of Profits
A Branch Office can remit the profits (net of any withholding tax) generated out of its operations in India on production of the prescribed documents, and on establishing that it has earned a net profit by undertaking the permitted activities. The Branch Office need not retain any profits as reserves in India
In short Branch Office can do only business activities similar to that to its parent company. No new activity is permitted and comes under highest tax slab of Indian Income Tax (i.e. 40%). The profit so earned net of taxes can be remitted to parent company.
100% Owned subsidiary• Form a new Company and the parent Company can hold 100% of Shares in the new Company.
• The Company can take up any business in India.
• NO RBI permission.
• Will be treated as Domestic Company
• Tax Rate Slab will be 30%
Approval / Incorporation
The Company is required to obtain a Certificate of establishment of place of business in India from the Registrar of Companies (ROC).
Can be independently promoted by Parent Company
Can be promoted by any two person in India and than the holding of this person can be purchased by the Parent Company. (If this is the case, intimation about the transfer of share is required to be informed to Reserve Bank of India).
Typical Points about 100% Subsidiary
The profit earned in India can only be taken away by parent Company in the form of dividend after payment of dividend tax.
No easy exit.
Transfer pricing issues if purchases made from sister concern
100% Subsidiary can take up any business in India. In the tax slab of domestic Indian company Tax Lab (30%). The profit so earned after payment of divident tax can be remitted to parent company in the form of dividend.
Project OfficeForeign Companies planning to execute specific projects in India can set up temporary project/site offices in India. RBI has now granted general permission to foreign entities to establish Project Offices subject to specified conditions. Such offices cannot undertake or carry on any activity other than the activity relating and incidental to execution of the project. Project Offices may remit outside India the surplus of the project on its completion, general permission for which has been granted by the RBI.
Joint Venture With An Indian PartnerForeign Companies can set up their operations in India by forging strategic alliances with Indian partners.
Joint Venture may entail the following advantages for a foreign investor:
Established distribution/ marketing set up of the Indian partner
Available financial resource of the Indian partners
Established contacts of the Indian partners which help smoothen the process of setting up of operations
Investment by way of Share Acquisition A foreign investing company is entitled to acquire the shares of an Indian company without obtaining any prior permission of the FIPB subject to prescribed parameters/ guidelines. If the acquisition of shares directly or indirectly results in the acquisition of a company listed on the stock exchange, it would require the approval of the Security Exchange Board of India.
Foreign Direct Investment (FDI)India’s foreign trade policy has been formulated with a view to invite and encourage Foreign Direct Investment in India (FDI). The process of regulation and approval has been substantially liberalized. The Reserve Bank of India has prescribed the administrative and compliance aspects of FDI.
FDI can be divided into two broad categories: investment under automatic route and investment through prior approval of Government.
Procedure under automatic route FDI in sectors/activities to the extent permitted under automatic route does not require any prior approval either by the Government or RBI. The investors are only required to notify the Regional office concerned of RBI within 30 days of receipt of inward remittances and file the required documents with that office within 30 days of issue of shares to the foreign investors.
Procedure under Government approvalFDI in activities not covered under the automatic route, requires prior Government approval and are considered by the Foreign Investment Promotion Board (FIPB). Approvals of composite proposals involving foreign investment/foreign technical collaboration are also granted on the recommendations of the FIPB.