Remittance facilities

As stated above, a liaison office cannot earn any income in India (except for interest on surplus funds lying in its local bank account subject to certain conditions). Therefore, all expenses of the liaison office have to be met out of inward remittances from the head office. Any balance in the liaison office account can typically be repatriated, only at the time of closure of the liaison office.

Taxation

As stated above, liaison offices are not permitted to carry on any industrial, trading or commercial activities, nor to earn any income in India. However, sec 139(1) requires all companies to furnish a return of income. Hence, liaison offices would also be required to file their return of income in India.

Exit options

Closure of a liaison office normally involves a time frame of five to six weeks. An application enclosing the prescribed documentation is required to be made to the requisite regional office of RBI.

PROJECT OFFICE:

In case a foreign company wishes to establish a business presence in India for the limited purpose of executing a project, it may establish a project office for its Indian operations. The objective behind establishment of a project office is to enable a foreign company to establish a temporary base in India for executing specific projects/contracts.

A foreign company may open a project office in India for executing a contract secured by an Indian company without the prior permission of RBI provided the following conditions are satisfied:

• The project is funded directly by inward remittance from abroad;
• The project is funded by a bilateral or multilateral international Financing Agency;
• The project has been cleared by an appropriate authority;
• A company or entity in India awarding the contract has been granted term loan by a public financial institution or a bank in India for the project.

In all other cases, prior approval of the RBI is required to establish a project office in India.

Remittance facilities

A project office is permitted to open and operate a bank account including a foreign currency account in India. Typically, expenses of the project office in India can be met only out of inward remittances from the head office, or rupee amounts received locally under the approved contract(s).

Outward remittances from the bank account are permitted subject to certain compliance requirements.

Taxation

A project office is considered as an extension of a foreign company in India. Therefore, income earned by the project office is taxable in India in accordance with the taxation provisions applicable to foreign companies under the Income-tax Act, 1961 ("Act").

Exit options

Being a restricted business presence in India, the process for closure of a project office is straightforward, and normally involves a time frame of five to six weeks. An application enclosing the prescribed documentation has to be made to the regional office of RBI in case the project office was established under the approval route and to the Authorized Dealer in case the project office was established under the general permission.

BRANCH OFFICE

In the case where a foreign company wishes to undertake trading or commercial activities in India without establishing/investing into an Indian company, it may establish a branch office in India, with the prior approval of RBI, for undertaking certain specified activities.

Scope of activities

Branch offices are permitted to undertake only those activities, as approved by RBI, that typically enable them to:

• Undertake the export and import of goods;
• Render professional or consultancy services;
• Carry out research work in which the parent company is engaged;
• Promote technical and financial collaborations between Indian companies and parent/overseas group companies;
• Represent the parent company in India and act as buying and selling agents;
• Render services in information technology and development of software in India;
• Render technical support to the products supplied by the parent/group companies;
• Operate as a foreign airline/shipping company.

100% FDI is allowed in setting up a stand -alone branch in a SEZ. A branch has to be set up on a stand-alone basis, i.e. such branch office will be isolated and restricted to the SEZ alone and no business activity/transaction will be allowed outside the SEZ (this includes branches/subsidiaries of its parent office in India).

Approval process

An application in the prescribed form has to be submitted to RBI for establishing a branch office in India. The lead time for processing a branch office approval typically ranges from four to five weeks, unless the application is referred to the administrative ministry concerned (such as in the case of banking entities) within the Government of India for comments which may lead to an increase in processing time.

As per the provisions of the SEZ Act, no prior approval of RBI is required to set up a branch in a SEZ.

Remittance facilities

The RBI approval for establishing a branch office permits the opening of a bank account for meeting expenses related to Indian activities, as well as crediting proceeds/income generated in India. Branches are permitted to repatriate profits generated in India on an ongoing basis, after complying with certain procedural requirements.

Taxation

A branch office is considered as an extension of a foreign company in India. Therefore, income earned by the branch office is taxed in India in accordance with the taxation provisions applicable to foreign companies under the Act.

In case the provisions of a tax treaty between India and the country of which the foreign company is resident, are more beneficial than the Act, then it is open to the foreign company to elect being taxed under the provisions of the relevant tax treaty.

Exit options

Closure of a branch office normally involves a time frame of six to eight weeks. An application enclosing the prescribed documentation has to be made to the Central office of RBI.

Apart from obtaining RBI approval for establishing a liaison office, project office/branch office, the foreign company is also required to register with the Registrar of Companies ("ROC"). An application has to be filed in the prescribed form within 30 days of the establishment of the office in India with ROC, pursuant to which ROC would issue a certificate of establishment of place of business in India to the foreign company.

ENTRY REQUIREMENTS FOR DOING BUSINESS IN INDIA

Public Limited Company

A company that can offer shares to the public is termed as a public limited company. The Companies Act 1956 mandates a list of criteria that have to be met by the public limited companies before they start their business operations in India. A few of these criteria are listed below:

• It should have at least seven shareholders.
• A public company is allowed to start its activities only after procuring the ‘Certificate of Commencement of Business’. The ‘Certificate of Incorporation’ alone will not suffice the purpose.
• The company should release a prospectus or issue a statement to sell its securities.
• It must have at least three directors in its board.
• The company should conduct statutory meeting from time to time.

Private Limited Company

A private limited company is not owned by any governmental body, and it does not offer public shares. The number of shareholders for a private limited company is restricted to a maximum 50, whereas the minimum required is 2. The shareholders, however, do not have the power to transfer or trade their shares publicly.

TYPE OF BUSINESS ENTITIES FOR STARTING BUSINESS IN INDIA

Sole Proprietorship

This is the most common type of business entity. Sole proprietorship means that there is a sole owner who funds as well as operates the business. Being one of the simplest forms of business entities, it is relatively formality free with no rules regarding records required to be kept, no requirement of having your accounts audited and no requirement of filing financial information to the registrar of companies. In short, there is no legal distinction between you and your business.

Pros:

• Very easy to setup and start your business.
• Relatively formality free. So, less time spent upfront in legal procedures.
• Public disclosure of your finances-not required.
• All the profits of your business are kept by you and no sharing of profits with others is required.

Cons:

• Personal liability. If you go bankrupt, creditors get the right to your possessions-house, property, etc.
• Very difficult to get investment from VC’s, angels, etc.

Partnerships

Partnership is a type of business entity, where you are partner with other individuals to own and run the business. On a higher level, they can be viewed as collection of sole proprietors. In case of partnership form of entity, you get access to a bigger pool of capital, skills and other resources to fund and run your business. All partners contribute capital equally, share profits and losses equally and have an equal say in business decisions, unless otherwise provided in the partnership deed.

Pros:

• Access to larger pool of resources and capital.
• Beneficial when you do not have the confidence to start the business on your own and need someone to shoulder the responsibility.
• Access to complementary skills.

Cons:

• In case of a mistake made by a business partner without your consent, you would be equally liable even though you had no role to play in the said mistake.
• In case your partner goes bankrupt, his share in the business can be seized by the creditors. Although you are not liable for his personal debts, your business may be put into jeopardy.

Limited Liability Partnership

The LLP shall be a body corporate and a legal entity separate from its partners. Any two or more persons, associated for carrying on a lawful business with a view to profit may by subscribing their names to an incorporation document and filing the same with the Registrar, form a Limited Liability Partnership.

Pros:

• An LLP allows for an unlimited number of members and there is no upper limit on number of partners in an LLP unlike an ordinary partnership firm where the maximum number of partners cannot exceed 20 (10 in case of banking business).
• Being a separate legal entity, LLP is liable to the full extent of its assets; the liability of the partners would be limited to their agreed contribution in the LLP.
• There is flexibility without imposing detailed legal and procedural requirements.
• It has features similar to a corporate entity, i.e.; perpetual existence irrespective of changes in partners, capable of entering into contracts and holding property in its own name.
• There is no requirement to maintain statutory records except Books of Accounts.

Cons:

• LLP cannot raise funds from Public.
• Any act of the partner without the other may bind the LLP.

Corporate Entity

This type of business entity is most common and preferred type while starting a business. A corporate entity is a separate legal entity from its founders, shareholders and managers. The liability of the shareholders is limited to the paid-unpaid capital that is issued as part of the company. Thus, in case of bankruptcy, the personal assets of the founders/managers are not affected. A corporate entity needs to keep record of accounts, audit their records and file an annual report and return with the registrar of companies.

Pros:

• Founder’s financial liabilities are limited.
• There is proper structuring of the management-for example, who will be the managing director, etc.
• It is easy to get funding from VC’s and other sources by selling a stake (shares) of the company.
• Additional members/directors (subject to limits as specified in the Companies act, 1956) can be added to the company structure.
• Selling the company is relatively easy (legally) because the legal incorporation records, financial records, annual returns, etc. have already been filed.

Cons:

• Considerable amount of time and effort required to complete the initial incorporation.
• Additional overhead of keeping records, having those records audited and filing annual reports.

Corporate entities are of the following two types:

1) Private Limited Company

A private company is a company which has the following characteristics:

• Shareholder’s right to transfer shares is restricted;
• The no. of shareholders is limited to fifty; and
• Restriction on raising funds from the public.

2) Public Limited Company

A public company is defined as a company which is not a private company. The following conditions apply only to a public company:

• It must have at least seven shareholders.
• A public company is not authorized to start business upon the grant of certificate of incorporation. In order to be eligible to commence business as a corporation, it must obtain another document called “Certificate of Commencement of Business”.
• A public company is required to have a minimum of three directors.
• It must hold statutory meetings & obtain government approval for the appointment of the management.

There are several other provisions contained in the Companies Act, 1956 which are applicable only to public companies and should be consulted.

BRANCH OFFICE

Foreign companies engaged in manufacturing and trading activities abroad are allowed to set up branch offices in India for the purpose of export/import of goods, rendering professional or consultancy services, R&D, promoting technical or financial collaborations, representing the parent company, acting as buying/selling agents, rendering services in IT and development of software, rendering technical support to the products supplied by the parent/group companies. Branch offices could be established with the approval of the government of India and may remit outside India profit of the branch, subject to RBI guidelines after payment of applicable Indian taxes.

LIAISON OFFICE / REPRESENTATIVE OFFICE

A Liaison Office could be established with the approval of the government of India. The roles of the Liaison Office are limited to collection of information, promotion of exports/imports and facilitate technical/financial collaborations. Liaison office cannot undertake any commercial activity directly or indirectly.

PROJECT OFFICE

Foreign companies planning to execute specific projects in India can set up a temporary project/site office in India for carrying out activities only relating to that project. The Government of India has now granted general permission to foreign entities to establish project offices subject to specified conditions.

REGISTRATION OF COMPANIES

The following services are provided by us in this regard:

• Advising on implications of operating through a corporate entity, the level of capitalization, etc.
• Assistance in obtaining name approval from the Registrar of Companies (RoC).
• Assistance in drawing up the Memorandum of Association & Articles of Association of a Company (MoA & AoA).
• Registration of the Company with the Registrar of Companies (RoC).
• Assistance in statutory local registrations under other laws.

SETTING UP BUSINESS IN INDIA BY FOREIGN COMPANIES

Two choices are there for a foreign company seeking to develop business activities in India:

1. As an Indian company:

2. As an Foreign company:

Once the entity is set-up in India:

We provide complete, online back office operations. From recruitment of personnel, to general office maintenance, to pay roll and other legal & statutory formalities.

Bank account opening

Assistance and signatory services for opening and operating Bank account in India with all major international banks are also provided. Tell us the preference of Bank you want to have bank account with and we will get back to you with complete information.

Growing Successfully

India limited companies are required by law to place on public record their statutory annual accounts, which must often be audited. These must comply with a range of detailed disclosure requirements set out in the Indian Companies Act. NSMD & Co., Chartered Accountants ensure that all disclosure requirements are met, and are authorised to carry out independent statutory audits. Our audit strategy concentrates attention where it is most appropriate, reducing expenses to a minimal while delivering a valuable monitoring resource. Our advice isn’t just an annual event – clients rely on our experience all year round. As your profits grow, we advise on corporate tax planning and compliance, and will negotiate with the Inland Revenue on your behalf. For more about our Legal & Tax compliance service click here. Whenever cross border intra group transactions arise, the difficult issue of transfer pricing is never far behind. We can help you to determine fair prices and ensure that the documentation required by the tax authorities is in place. Tax and tax preparation for company owners and key workers is just as important to us–our professional tax, strategic strategy and trust divisions seek to optimize the tax development and reduce tax bills. Their managers can carry out credit checks on prospective clients, provide customs and shipping documents and organize for all necessary policies. When you build a footprint in India, we will follow up on our initial business plan with daily marketing updates.

The Advantages

Our service list enables you to select and pick to match your specific needs. Our outsourcing technology helps you to cost-effectively execute on India's fiscal compliance. We're taking care of the periphery problems that give the company unable to concentrate on what's really important: progress in India.

Want to start business in India?

NSMD & Co is a committed agency with the express purpose of supporting foreign and national business groups to develop their corporations in India. actively promoted by a successful entrepreneur of the first generation, the company recognizes the concerns relating to the development of an organisation in the Indian climate and ensures that you get complete assistance. We totally understand Indian politics, industry, corporate needs profoundly and have the right collaborators, partnerships to lead you through the smooth establishment of your company. Your quest for improved value-added insight and acquired tips for beginning business / trading in India finishes here.

Is your liaison / office situated in "India" or "Branch Office in India"

The organization extends its market by establishing its branch offices in various sections of the world as well as in other nations. A branch office belongs to an institution which operates on fundamentally the same business and operation as its head office does. In other terms, branch offices are helping to broaden the reach of the demand for a company's goods by drawing additional customers; extending the scale of its marketing and production operations, as well as creating further incentives and developing unexplored channels for it. As a result, Liaison offices are helping to boost the company's development and increasing its productivity on a consistent basis. The establishment of the Branch Office / Liaison Office or Project Cum Site Office by a individual residing in India for trade, financial, industrial or other various and sundry activities shall be regulated by the following criteria;

Objects of Setting Up the Branch Office :

• Export of Goods.
• Import of Goods.
• Rendering professional or consultancy services.
• Carry out analysis studies with which the parent organization is involved.
• Supporting technological or financial cooperation between Indian firms and the parent or Overseas Group Business.
• Going to represent the parent business in India
• Technical assistance for goods provided by parent firms / group firms.
• Foreign Airline/shipping Company.

Note : The Reserve Bank of India, the apex bank grants permission to open a Liaison office. Thus, there is general permission to carry out any or all of the above activities once the permission from RBI is received to set up a BO in India .

The entire process, can take anywhere from a few weeks to a few months depending on the industry and India's relations with the nationality of the parent company. Approval is generally granted for a period of one to three years, upon expiry of which.