- Which law and regulations govern foreign investment in India?
Broadly, foreign investment in India is regulated under the provisions of the Foreign Exchange Management Act, 1999 ("FEMA") and the Foreign Exchange Management (Transfer or Issue of a Security by a Person resident Outside India) Regulations, 2017 ("Regulations 20"), framed the reunder. The FEMA was enacted to consolidate and amend the laws relating to foreign exchange with the objective of facilitating external trade and payments and for promoting the orderly development and maintenance of the foreign exchange market in India.
Based on the type of entity one proposes to incorporate, other legislations such as the Foreign Exchange Management(Establishment in India of a branch office or a liaison office or a project office or any other place of business) Regulations, 2016 ("Regulations") or the Companies Act, 2013 etc will also have to be complied with.
What constitutes 'foreign investment' under Indian Law?
'Foreign investment' is any investment made by a person resident outside India on a repatriable basis in capital instruments of an Indian company or to the capital of an LLP.
Who is a "Person Resident Outside India"?
A "Person Resident outside India" means a person who is not resident in India.
A "Person Resident in India" means:
(i) a person residing in India for more than one hundred and eighty-two days during the course of the preceding financial year but does not include:
(a) a person who has gone out of India or who stays outside India, in either case:
- for or on taking up employment outside India, or
- for carrying on outside India a business or vocation outside India, or
- for any other purpose, in such circumstances as would indicate his intention to stay outside India for an uncertain period;
(b) a person who has come to or stays in India, in either case, otherwise than:
- for or on taking up employment in India, or
- for carrying on in India a business or vocation in India, or
- for any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period;
(ii) any person or body corporate registered or incorporated in India;
(iii) an office, branch or agency in India owned or controlled by a person resident outside India; and
(iv) an office, branch or agency outside India owned or controlled by a person resident in India.
- What are the capital instruments through which foreign investment may be effected?
A foreign investor may make investments in eligible Indian entities through Equity Shares;fully, compulsorily and mandatorily convertible debentures;fully, compulsorily and mandatorily convertible preference shares and share warrants issued by the Indian company in accordance with the regulations issued by the Securities and Exchange Board of India.
Capital instruments can contain an optionality clause subject to a minimum lock-in period of one year or as prescribed for the specific sector, whichever is higher, but without any option or right to exit at an assured price.
- Is Foreign Investment allowed in all sectors?
No, FEMA prescribes a list of activities/sectors where foreign investment is absolutely prohibited. These are:
(i) Lottery Business including Government/private lottery, online lotteries, etc;
(ii) Gambling and Betting including casinos etc.;
(iii) Chit funds;
(iv) Nidhi company;
(v) Trading in Transferable Development Rights (TDRs);
(vi) Real Estate Business or Construction of Farm Houses;
(vii) Manufacturing of cigars, cheroots, cigarillos and cigarettes, of tobacco or of tobacco substitutes; and
(viii) Activities/sectors not open to private sector investment e.g.(i) Atomic Energy; and (ii)Railway operations (other than a few permitted activities).
- Barring the sectoral prohibition, can foreign investments be made in all other sectors? Is there any limit on the amount of investment that can be made?
The FEMA read in conjunction with the Foreign Direct Investment Policy ("FDI Policy") prescribes certain limits for each sector in which FDI is permitted to be made. All Foreign Investors need to comply with such prescribed limits and the corresponding applicable conditions.
- Are there any additional conditions, including entry conditions that a foreign investor is required to comply with?
Investments by non-residents can be permitted in the capital of a resident entity in certain sectors/activity with entry conditions. Such conditions may include norms for minimum capitalization, lock-in period, etc., and are sector-specific.
Apart from the aforementioned entry conditions, the investors are required to comply with all relevant sectoral laws, regulations, rules, security conditions, and state/local laws/regulations.
- What are the entry routes for investment through FDI?
Investments can be made by non-residents through the Automatic Route (where prior regulatory approval is not required) or Government Route (where prior regulatory approval is required).
- What is the difference between the Automatic Route and the Government Route?
An Indian company may, subject to the prescribed FDI caps, sectoral regulations and licensing requirements applicable for various sectors / activities (if any), issue capital instruments to persons resident outside India under the automatic route. In terms of the said sectoral regulations, there are certain sectors in which foreign investment is not permitted under the automatic route and requires specific approval, such as, the domestic airlines, broadcasting, print and news media, atomic minerals, defense etc.
If the proposed investment does not qualify for the "automatic route", the company in which such foreign investment is sought to be made would have to make an application on the Foreign Investment Facilitation Portal for approval. The approval is granted on a case to case basis at the discretion of the concerned ministry/department, and in approving an investment proposal, the concerned department/ministry ordinarily considers factors such as inflow and outflow of foreign exchange, general benefit to the Indian economy, induction of technology, export potential, potential for large-scale employment, etc.
- What are the different forms in which a foreign entity can establish its presence in India?
Depending on the proposed activities of such foreign entity, a foreign entity can establish its presence in India, either through the opening of a liaison office, a project office, a branch office or by directly investing in an Indian company or a partnership or a Limited Liability Partnership (LLP).
- What is the difference between liaison office, branch office and project office?
Liaison office is place of business to act as a channel of communication between the principal place of business or head office, by whatever name called, and entities in India but which does not undertake any commercial/ trading/ industrial activity, directly or indirectly, and maintains itself out of inward remittances received from abroad through normal banking channel.
Branch office in relation to a company, means any establishment described as such by the company.
Project office means a place of business in to represent the interests of the foreign company executing a project in India but excludes a liaison office.
- What is the eligibility criteria for establishment of liaison office, branch office and project office?
For liaison office, the foreign entity must demonstrate 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.
For branch office, the foreign entity must demonstrate a profit-making track record during the immediately preceding three financial years in the home country and net worth of not less than USD 1,00,000 or its equivalent.
For project office, the foreign entity must have secured a contract to execute a project in India from an Indian company and the project should be funded (either directly by inward remittance from abroad, or by multilateral or bilateral International Financing Agency or been granted term loan by a bank in India).
- Liaison Office
- Is prior Reserve Bank of India ("RBI") approval required for setting up of liaison office?
Prior RBI approval is required for setting up of liaison office.
- What is the validity of the above approval?
The above approval is valid for a period of three (3) years. Such period may be extended for a period of three years from the date of expiry of the original approval / extension granted, subject to such directions issued by the RBI in this regard.
- What is the Procedure for Application of a liaison office?
Application to set up a liaison office has to be made to the RBI through an AD Category – I Bank identified by the applicant with whom they intend to pursue banking relations ("Authorized Dealer"), in the prescribed Form FNC along with the relevant documentation. The documents required to be attached along with Form FNC are:
(i) A cover letter to Form FNC setting out the details with regard to the activities of the head office and its worldwide operations, number of employees worldwide, its previous presence, if any, in India etc.;
(ii) An English version of the certificate of incorporation/ registration or Memorandum and Articles of Association ("Charter Documents") attested by the Indian Embassy/ Notary Public in the country of registration;
(iii) The audited balance sheet of the applicant company for the last five (5) years;
(iv) Banker's report from the applicant's banker in the host country / country of registration showing the number of years that the applicant has had banking relations with that bank;
(v) A letter of comfort from the parent company, in the prescribed form, if required;
(vi) Power of attorney in favor of signatory of Form FNC in case the head of the overseas entity is not signing the FNC form; and
(vii) Though not strictly necessary, promotional literature of the applicant is also normally attached to the application.
Upon expiry of the validity period of the approvals, such liaison offices are required to either (i) close down; or (ii) be converted into a Joint Venture (JV) /Wholly Owned Subsidiary (WOS), in conformity with the FDI policy.
- What are the permitted scope of activities under liaison office?
A liaison office in India is permitted to undertake the following activities:
(i) To represent the parent company/ group companies in India;
(ii) To promote exports and imports from and to India;
(iii) To promote technical and/ or financial collaborations between the parent and group companies and companies in India; and
(iv) To act as a communication channel between the parent company and the Indian companies.
A foreign entity will need RBI approval to carry on any other activity other than those mentioned above.
- Are there any compliances applicable to liaison office?
Yes, the Regulations have prescribed a set of compliances that each liaison office is permitted to make:
(i) The liaison office is required to have its accounts audited and file performance reports with the RBI. Liaison offices also have to file, on or before September 30 each year, an 'Annual Activity Certificate' as at the end of March 31st along with the audited financial statements including receipt and payment account to the Authorized Dealer with a copy to the Directorate-General of Income Tax (International Taxation), New Delhi.
(ii) The liaison office also has to carry out certain statutory filings under the Companies Act, 2013 and comply with certain other requirements of local law, including Central and State labour legislations.
(iii) Liaison office is allowed to open non-interest bearing current accounts in India. Such offices are required to approach banks in India for opening the accounts.
(iv) Liaison office is required to register with the Registrar of Companies, if required as per the Companies act, 2013.
(v) Liaison office is required to obtain Permanent Account Number from the Income Tax Authorities post the setting up of office and is required to report the same in the Annual Activity Certificate.
(vi) All liaison offices have general permission to carry out permitted / incidental activities from lease property subject to lease period not exceeding five (5) years.
- Branch Office
- Is prior RBI approval required for setting up of branch office?
Yes, prior RBI approval is required for setting up of branch office.
- What is the procedure for application of a branch office?
Permission to set up a branch office has to be made to the RBI, through an Authorized Dealer, in the prescribed Form FNC along with the relevant documentation. The documents required to be attached are the following:
- A cover letter setting out the details with regard to the activities of the head office and its worldwide operations, number of employees worldwide, financial strength, reputation, its previous presence, if any, in India, etc;
- An English version of the Charter Documents attested by the Indian Embassy/Notary Public in the country of registration;
- The audited balance sheet of the applicant company/firm for the last three (3) years;
- Banker's report from the applicant's banker in the host country / country of registration showing the number of years that the applicant has had banking relations with that bank;
- A letter of comfort from the parent company, in the prescribed form, if required; and
- Promotional literature of the applicant is also normally attached to the application.
- What are the permitted scope of activities for a branch office?
The following activities are permitted to be undertaken by a branch office in India under the Regulations:
- To carry on export/import of goods (procurement of goods for export and sale of goods after import are allowed only on wholesale basis);
- To render professional or consultancy services;
- To conduct research work in India in which the parent company is engaged;
- To promote technical and/ or financial collaborations between Indian companies and parent or overseas group companies;
- To represent the parent company and other foreign companies in various matters in India, e.g. to act as a buying and selling agent in India;
- To render services in information technology and development of software in India;
- To render technical support to the products supplied by the parent/group companies; and
- To set up a foreign airline / shipping company.
- What are the Compliances and General Conditions for a branch office?
(i) The branch office is required to register itself with the Registrar of Companies of the State in which the office is set up and with the Registrar of Companies at New Delhi within a period of thirty (30) days from the date of establishing a place of business in India in the prescribed form along with the prescribed documents.
(ii) The branch office is also required to have its accounts audited and make such other filings as may be required by the RBI / the Authorized Dealer at the time of granting the approval. Branch offices also have to file, on or before September 30 of each year, an 'Annual Activity Certificate' as at the end of March 31st along with the audited financial statements including receipt and payment account to the Authorized Dealer with a copy to the Directorate-General of Income Tax (International Taxation), New Delhi.
(iii) The branch office also has to carry out certain statutory filings under the Companies act, 2013
and comply with certain other requirements of local law, including Central and State labour legislations.
(iv) A branch office is required to register with the Registrar of Companies, if required as per the Companies Act, 2013.
(v) A branch office is required to obtain Permanent Account Number from the Income Tax Authorities post the setting up of office and is required to report the same in the Annual Activity Certificate.
- Project Office
- Is prior RBI approval required for setting up of project office?
Prior RBI approval is not required in case if a project has been awarded in India to such foreign company.
- What is the validity of the project office?
The validity for the project office is granted for the duration of the project.
- What is the permitted scope of activities for a project office?
The project office can be set up for the sole purpose of executing the project and cannot undertake any other activities.
- What is a Company?
An Indian Company is a company incorporated under the Companies Act 2013 or under any previous company law. A foreign entity may, subject to the sectoral cap, set up/invest in a company incorporated under the Companies Act 2013 through either a:
- Wholly Owned Subsidiary; or
- Joint Venture Company where it may collaborate with another foreign or Indian company for technical expertise, financial resources or any other resource or expertise.
- What is the procedure for FDI in a Company?
FDI can be brought into an Indian company either through one of the following options:
(i) Incorporation of an Indian Company
An Indian company may issue equity shares / compulsorily convertible preference shares /compulsorily convertible debentures to non-residents in accordance with the applicable provisions.
(ii) Entry through the Acquisition of Existing Shares
Transfer of shares/ convertible debentures of an Indian company, by way of sale, from residents to non-residents of an Indian company, does not require prior Government approval provided the following conditions are satisfied:
- The transfer is in accordance with the entry routes (as applicable) under the FDI Policy;
- The non-resident shareholding, after the transfer, complies with the sectoral limits under the FDI Policy;
- The price at which the transfer takes place is not less than the fair valuation of shares determined by a SEBI-registered Merchant Banker or a chartered accountant as per any internationally accepted pricing methodology. Further, an amount not exceeding 25% (twenty five percent) of the entire consideration for the transfer can be paid by the buyer on a deferred basis; and
- The Indian bank, through which the purchase consideration is received, has to obtain a declaration in the prescribed form and ensure that the documents prescribed are on its record.
- What is a LLP?
LLP combines the flexibility of a partnership and the advantages of limited liability of a company at a low compliance cost. In other words, it is an alternative corporate business vehicle that provides the benefits of limited liability of a company, but allows its members the flexibility of organising their internal management on the basis of a mutually arrived agreement, as is the case in a partnership firm. A LLP is governed by the provisions of the Limited Liability Partnership Act, 2008 ("LLP Act").
- What are the requirements for the formation of an LLP?
(i) A LLP can be incorporated with a minimum of 2 partners who can be individuals or body corporate through their nominees. Further for incorporating a LLP, there are required to be at least 2 'Designated Partners', of which at least 1 must be an Indian resident.
(ii) To register an Indian LLP, an applicant needs to first apply for a Director's Identification Number ("DIN"), which can be done by filing an e-Form for acquiring the DIN. Then the applicant needs to obtain the Digital Signature Certificate ("DSC") and register the same. Thereafter, the applicant needs to get the LLP's name approved by the Ministry of Corporate Affairs. Once the LLP's name is approved, the foreign company can register the LLP by filing the incorporation form.
- Can FDI be invested in a LLP?
FDI is permitted under the automatic route, only in LLPs operating in sectors/activities where 100% (one hundred percent) FDI is allowed, through the automatic route and there are no FDI-linked performance conditions. Further, a LLP is permitted to convert into a company. Similarly, conversion of a company into a LLP is also now permitted under the automatic route.
- Partnership Firm
- What is a Partnership Firm?
A partnership is defined as a relation between two or more persons who have agreed to share the profits of a business carried on by all of them or any of them acting for all. The owners of a partnership business are individually known as the "partners" and collectively as a "firm". A partnership is formed by an agreement, which may be either written or oral. When the written agreement is duly stamped and registered, it is known as "Partnership Deed". Ordinarily, the rights, duties and liabilities of partners are laid down in the Partnership Deed. But in the case where the Partnership Deed does not specify the rights and obligations, the provisions of the Indian Partnership Act, 1932 ("Partnership Act") will apply.
- What are the requirements for formation of a Partnership Firm?
A partnership firm may be registered at any time (not merely at the time of its formation but subsequently also) by filing an application with the Registrar of Firms ("ROF") of the area in which any place of business of the firm is situated or proposed to be situated. The application shall contain:
- Name of the firm;
- Place or principal place of business;
- Names of any other places where the firm carries on business;
- Date on which each partner joined the firm;
- Name in full and permanent address of partners; and
- Duration of the firm.
- Can FDI be made in a Partnership Firm?
FDI is allowed to be made in partnership firms, subject to the following conditions:
(i) A Non-Resident Indian ("NRI") or a Person of Indian Origin ("PIO") resident outside India can invest in the capital of a firm or a proprietary concern in India on non- repatriation basis provided that:
- Amount is invested by inward remittance or out of NRE/FCNR(B)/NRO account maintained with Authorized Dealers / authorized banks;
- The partnership firm is not engaged in any agricultural/plantation or real estate business or print media sector; and
- Amount invested shall not be eligible for repatriation outside India.
(ii) Investments with repatriation option: NRIs/PIO may seek prior permission of RBI for investment in partnership firms with repatriation option. The application will be decided in consultation with the Government.
(iii) Investment by non-residents other than NRIs/PIO: A person resident outside India other than NRIs/PIO may make an application and seek prior approval of the RBI for making investment in the capital of a partnership firm in India. The application will be decided in consultation with the Government.
(iv) Restrictions: A NRI or PIO is not allowed to invest in a firm or proprietorship concern engaged in any agricultural/plantation activity or real estate business or print media.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.