Doing Business in India
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Doing Business in India November 2018 Background The Government of India took the task of transforming India into a manufacturing power through the ‘Make in India’ campaign launched on September 25, 2014. A national program designed to facilitate investment, foster innovation, enhance skill development, protect intellectual property and build best-in-class manufacturing infrastructure. While several initiatives are being undertaken to provide adequate physical and social infrastructure such as industrial corridors, cluster, zones, etc. it is encouraging to note that the Government of India (GoI) has embarked on ambitious reforms focused on improving India’s performance in the World Bank’s Doing Business rankings. India is ranked 77 among 190 economies in the ease of doing business, according to the latest World Bank annual ratings. Investment climate in India has also improved considerably since the opening up of the economy in 1991. With an aim to attract and promote FDI, GoI has put in place a policy framework on FDI, which is transparent, predictable and easily comprehensible. This toolkit covers information on Setting up Business in India such as types of permitted business establishments, commencing business in India by a foreign investor, foreign company incorporation process – LO/ BO/ PO, business registration process and Central & State level compliances. Moreover, it covers the FDI related information across sectors such as how much FDI is permitted under different sectors via automatic/ Government route. The toolkit further covers the institutional and regulatory framework such as routing FDI in India, concerned administrative Ministries/ Departments, applicable regulatory framework for business establishments, governing bodies for business establishments and winding-up business. Contents Abbreviations • Related Compliances Introduction to the toolkit • Company wind-up 1. Setting up Business in India 4. Annexures • Types of permitted business establishment • Annexure I: List of Documents required for • Foreign company incorporation process- DSC, DIN LO/BO/PO & foreign bank branch • Annexure II: List of Documents required for • Registration process- OPC, Pvt. Ltd., LLP, FLLP OPC, Private Limited • Pre- commissioning and post commissioning • Annexure III: List of Documents required for of operations LLP, BIS • Annexure IV: List of Documents required for FIFP 2. Foreign Direct Investment in India • Annexure V: List of Documents required for • Permitted sectors Foreign Bank Branch • Prohibited Sectors • Annexure VI: Investment Options for • Eligible Investors & Instruments Foreigners • Compliances/Requirements • Annexure VII: Contact 3. Institutional & Regulatory framework • Regulatory set-up • Institutional set-up Abbreviations AD Authorized Dealer DSC Digital Signature Certificate AF Angel Fund ECB External Commercial Borrowing ADR American Depository Receipts FCCB Foreign Currency Convertible Bond AIF Alternative Investment Fund FCNR (B) Foreign Currency Non-Resident Account Act or the Act Companies Act, 2013 FDI Foreign Direct Investment AD Authorized Dealer FEMA Foreign Exchange Management Act AoA Articles of Association FPI Foreign Portfolio Investor BO Branch Office FIFP Foreign Investment Facilitation Portal CA Chartered Accountant FVCI Foreign Venture Capital Investor CCEA Cabinet Committee on Economic Affairs FII Foreign Institutional Investor CCS Cabinet Committee on Security GDR Global Depository Receipts CoI Certificate of Incorporation GoI Government of India CRC Central Registration Center GST Goods and Service Tax CS Company Secretary InvITs Infrastructure Investment Trusts DDT Dividend Distribution Tax JV Joint Venture DEA Department of Economic Affairs KYC Know Your Customer DIPP Department of Industrial Policy & Promotion LLP Limited Liability Partnership DR Depository Receipt LO Liaison Office DSIM Department of Statistics and Information Max Maximum Management DGIT Director General of Income Tax DGP Director General of Police DIN Director Identification Number Abbreviations Min Minimum SEBI Securities and Exchange Board of India MoA Memorandum of Association SEZ Special Economic Zone MoU Memorandum of Understanding SME Small and Medium-sized Enterprise MCA Ministry of Corporate Affairs SMS Short Message Service MSME Micro, Small and Medium Enterprise TAN Tax deduction account number NBFC Non-Banking Financial Companies TDR Transferable Development Rights NFRA National Financial Reporting Authority TDS Tax Deducted at Source NGO Non Government Organization UTI Unit Trust of India NOC No Objection Certificate VC Venture Capital NPO Non- profit organization WOS Wholly-owned Subsidiary NRE Non-Resident Entity NRE Account Non-Resident (External) Rupee Account NRI Non-Resident Indian NRO Account Non-Resident Ordinary Rupee Account PAN Permanent Account Number PIB Press Information Bureau PIO Person of Indian Origin PO Project Office PSU Public Sector Undertaking PGBP Profit and Gains on Business and Professions RBI Reserve Bank of India REIT Real Estate Investment Trust RoC Registrar of Companies 1 Setting up Business in India Types of permitted business establishments Commencing business in India by foreign Investor Foreign company incorporation process- LO/BO/PO Business Registration process Central level process/compliances State level process/compliances Setting up Business in India Types of permitted business establishments One Person Private Ltd Public Ltd Section 8 Company Company Company Company • The Companies Act 2013 A private company is a company A public company is a company • A company established for enables formulation of new which has the following which has the following promoting commerce, art, type of entity i.e. One Person characteristics: characteristics: science, sports, education, Company (OPC). An OPC means research, social welfare, a company with only 1 person • Shareholders right to transfer • Shareholders right to transfer religion, charity, protection of as a member shares is restricted shares is not restricted environment or any such other • Shareholder can make only 1 object', provided the profits, if nominee, who shall become a • Minimum number of 2 • Minimum 7 shareholders any, or other income is applied shareholder incase of death / members in company for promoting only the objects incapacity of original • Publishing a prospectus of the company and no stakeholder • Number of shareholders is become mandatory incase of dividend is paid to its members limited to 200 public issue • Only a natural person who is • Section 8 company enjoys all Indian Citizen &ROI shall be • An invitation to the public to • A company which is a privileges and shall be eligible to act as member & subscribe to any shares or subsidiary of a public company, subjected to all the obligations nominee in OPC debentures or any type of shall be deemed to be a public of limited company security is prohibited company even where such • A person can be nominee in subsidiary continues to be • 1 Resident director mandatory only 1 OPC • 1 Resident director mandatory private company in AoA • 1 Resident director mandatory • 1 Resident director mandatory (Min stay of 182 days) Note - Resident Director : sec 149 (3) – Every company should have at least one director who has stayed in India for a total period of not less than 182 days in the financial year (wef. 7 May 2018) Setting up Business in India Types of permitted business establishments Limited Liability Foreign Company Sole Proprietorship Partnership firm Partnership • Sole proprietorship is a • Partnership firms are • LLP is an alternative corporate • Incorporated outside but form of business in which created by drafting a business entity that provides the having a place of business one person owns all the partnership deed among benefits of limited liability of a in India (section 2(42)) assets of the business, in the partners. The company but allows its members contrast to partnership partnership deed is the flexibility of organizing their • Liaison office - To or corporations registered to make a firm internal management on the basis represent parent company of a mutually-arrived agreement, as in India • No legal formalities are • Partnership firms in India is the case in a partnership firm required to create a sole are governed by the • Branch office- To proprietorship other than Indian Partnership Act, • Introduced in India by way of undertake activities such an appropriate licensing 1932 Limited Liability Partnership Act, as Export, Import of to conduct a business 2008. LLP is a separate legal entity goods; research, and registration of • Maximum no. of partners consultancy etc. business name if it in a partnership firm can • Min 2 partners required differs from that sole be 20 • Project Office- Activities as proprietorship • LLP shall have 2 designated per contract to execute • The Profit & Loss are partners who are individuals and at project • The owner reports shared in manner as least one of them shall in be income/ loss from this agreed in the partnership Resident Partner • As per company law, a business along with deed resident having PAN to be personal income tax • Individual/ Body corporate may be appointed for receiving return • Min 2 partners required a partner in LLP notices in India for foreign company Note - As per the section 7 (1) resident DP means a person who has stayed in India for at least 182 days during the immediately preceding 1 year. Setting up business in India Comparative analysis of different business establishments in