Basics of Foreign Direct Investment (FDI) Regulations for Foreign Investors in India: Lawyers Advice on Foreign Investments in India | | FDI Attorney in Delhi NCR | FDI Attorney in India | India Business Entry
FDI Attorney in India | FDI in India | Foreign Direct Investments in India | Corporate Lawyer in Delhi NCR | Corporate Lawyer in Delhi | Corporate Lawyer in Noida | Corporate Lawyer in Gurugram | Corporate Lawyer in India | Corporate Attorney in Delhi NCR | Corporate Attorney in Delhi | Corporate Attorney in Noida | Corporate Attorney in Gurugram | FDI Attorney Legal Advice in Delhi NCR | FDI Attorney Legal Advice in Delhi | FDI Attorney Legal Advice in Noida | FDI Attorney Legal Advice in Gurugram | FDI Attorney in India | FDI in India | Foreign Direct Investments in India | FDI Legal Services in Delhi | FDI Legal Services in Noida | FDI Legal Services in Gurugram | FDI Legal Services in India | India Business Entry | Setup Business in India | Setting up Business in India | India Business Entry | Corporate Lawyer in India | FDI Attorney Legal Advice in India | FDI Legal Advice in India | Corporate Attorney in India |
India is one the fastest growing economies of the world due to its lenient policies for Foreign Direct Investment (FDI) which turns out to be appealing to the foreign investors, be it individuals or corporations. The Government has formulated FDI regulations with the intent to promote and attract foreign investments by being comprehensible, transparent and predictable.
WHO CAN INVEST?
• A foreign investor can either invest in a private limited company or a public limited company.
• A foreign company can either invest in Joint Ventures and wholly owned subsidiaries.
ADVANTAGES OF INVESTING IN INDIA
- Wholly owned subsidiaries- permits 100% FDI under the FDI policy
- Joint venture- with an Indian partner which enables
• Establishing contacts of the Indian Partner which smoothens the operations
• Improves financial aspect
• Establishing the market which has already been set up by the Indian partner - Growth Potential
- Comprehensive and predictable legal system
- Political stability- the stability of the government also plays a very important role in the economic situation of the country.
REGULATORY MECHANISMS FOR FDI POLICIES
• Ministry of Commerce and Industry, Government of India- This body makes policy pronouncement on FDI( Press note and press releases)
• Reserve Bank of India- RBI administers FEMA along with Directorate of Enforcement under the ministry Of Finance. FDI violations are covered under the penal provisions of FEMA.
• Department of Industrial Policy and Promotion (DIPP) – DIPP mainly look after the formulation and implementation of industrial policies which conforms to the national objective.
• Foreign Investment Implementation Authority (FIIA) – FIIA looks into quick implementation of FDI Approvals and assist foreign investors.
• Foreign Investment Promotional Council- undertaken to promote and have a more target oriented approach towards FDI
• Insurance Regulatory and Development Act (IRDA) – The act seeks to promote private sector Participation in insurance sector and permits foreign equity stake in National private insurance Companies.
FOREIGN DIRECT INVESTMENT (FDI) ROUTES
Automatic Route– The companies engaged with various industries can allow 100% of their paid up capital and there is no permission required from the Central Government.
Government Approval Route– Sectors which are not mentioned in automatic route has to go through the process of Government Approval which means that it is considered by the Ministry of Finance and Foreign Investment Promotion Board (FIPB).
PROHIBITED SECTORS
• Lottery Business
• Retail Trading (excluding single brand product retailing)
• Atomic Energy
• Housing and real estate business (except improvement of townships, construction of residential/commercial premises, roads or bridges to the extent specified in Notification No. FEMA 136/2005-RB dated July 19, 2005)
• Gambling and Betting
• Business of Chit Fund
• Trading in Transferable Development Rights (TDRs).
KEY LEGISLATIONS FOR MARKET PARTICIPANTS
• The Companies Act 2013: Governs the incorporation management, restructuring and dissolution of companies
• The Competition Act 2002: This regulates combinations (merger control) and anti-competitive behavior of the companies.
• The Income Tax Act 1961: Prescribes the tax treatment.
• The Indian Contracts Act 1872: This act lays down the general principles relating to the maintainability of the contracts.
• The FEMA (Foreign Exchange Management Act, 1999): It governs the management of inflow and outflow of foreign exchanges.
• The SEBI (Securities and Exchange Board of India) Act 1992: It imposes penalties on market participants when there is any breach of market rules.
• The SCRA (Securities Contracts Regulation Act, 1956): it governs the securities on stock exchanges in India.
AS A FOREIGN COMPANY
Section 2 (42) of Companies act 2013 defines “foreign company” that is any company or body corporate which is situated outside India but;
• It has a registered place of business in India that is exists either physically or electronically owned by company itself or through representative/agent/manager.
• Does any kind of acceptable business in India
REQUIREMENTS
According to section 149 (3) of companies act 2013, it is necessary that to register a private limited company, at least one director has to be Indian citizen and Resident.
Further, to register the Indian subsidiary of a foreign company, an authorized representative must be appointed by the company, who shall be responsible for registration process and all the communication with the MCA in this regards.
REGISTRATION OF A PRIVATE COMPANY:
According to section 380 of Companies Act, 2013 the documents have to be sent to the registrar within 30 days for the registration of the company. These will consist of full address of registered address, principle office, list of directors and secretary etc.
A legal document is issued to the company that is the Certificate of Incorporation which is given by the Ministry of Corporate Affairs (MCA)
TAXATION POLICIES
Foreign nationals are taxed on their Indian income. Important points to consider;
• Income from other sources is not taxable if not received in India.
• They have the option of being taxed according to the conditions of the tax treaty signed by their country of residence.
• Remuneration of work which is done in India is taxable irrespective of the place of business.
• The corporate tax rate for foreign entities is 40%. The net tax rate is much lower than this due to various deductions and exemptions available under the tax laws.
• A user friendly tax administration system that is electronically filing of customs documents.
After 1991, the Indian economy has boomed because of the liberal approach and it has been made comprehensible for the foreign investors. The process of investment in India is not a gruesome task only because of the laws and regulations that make the transactions smooth for both Foreign Nationals and Non Resident Indians (NRIs). The government has made FDI policies which can be easily reviewed and revised with the changing times. This helps both Indian economy as well as the investors.
Authored By: Adv. Anant Sharma & Shivangi Ghosh