With the advent of globalisation, an increasing number of Indian enterprises are interested in doing business outside of their home country. They need to open a branch office or a subsidiary or enter into any foreign collaborations in another country. There are numerous advantages to doing so, including cost savings due to duty savings, ease of doing business, and the development of a global brand, among others.
A totally owned subsidiary is a far-flung entity founded, registered, or incorporated in accordance with the host country’s rules and regulations and whose entire capital is held by the Indian party. It’s a separate legal entity in which the holding or parent business owns and controls the common shares. The parent firm has complete authority over the entity, and it operates in accordance with the parent company’s instructions. It should be mentioned that the parent firm makes the decisions for wholly-owned subsidiaries (WOS); yet, it has its own senior management that oversees business operations.
There are no individual shareholders because the common stocks are not publicly traded for a WOS. The Board of Directors is appointed by the parent business, but it is nonetheless considered as an independent legal entity. It means that the provisions that apply to the WOS are not always relevant to the parent firm.
Under the Automatic Route, an Indian Party does not need prior Reserve Bank approval to make overseas direct investments in a Wholly Owned Subsidiary (WOS) abroad. The Indian Party should approach an Authorized Dealer Category – I bank for remittances to such investments.
Any or all of the following constitutes an “Indian Party“:
It should be emphasized that the Automatic Route do not allow individuals to invest.
An Indian company can invest in any activity in which it has experience and competence (excluding those that are expressly barred). When engaging in financial sector operations, certain additional conditions established in Regulation may be observed.
Foreign investment is prohibited in the real estate and banking industries. However, provided they obtain authorisation under the Banking Regulation Act 1949, Indian banks operating in India can form joint ventures or wholly owned subsidiaries (JV/WOS) in other countries.
Only an Indian financial services business that meets the following standards is allowed to invest in the financial services sector:
Under the Automatic Route, the following criteria for overseas direct investment/financial commitment apply:
“Financial commitment” refers to an Indian Party’s direct investments outside of India, which include:
The Indian Party wishing to make an overseas direct investment through the automatic route must first complete form ODI online through AD bank, which must be accompanied by the documents listed therein, such as a certified copy of the Board Resolution, a Statutory Auditors certificate, and a valuation report (in the case of an existing company) that meets the valuation norms, before approaching an Authorized Dealer (designated Authorized Dealer) for the investment/remittance.
Proposals not covered by the automatic route’s limitations require Reserve Bank approval, which is obtained by submitting a specific application in Form ODI together with the necessary evidence to Authorized Dealer Category – I banks.
When examining such applications, the Reserve Bank will examine the following factors:
To allow recognised star exporters with a proven track record and consistently high export performance to benefit from globalisation and liberalisation, proprietorship concerns and unregistered partnership firms are allowed to set up WOS outside India with the Reserve Bank’s prior approval, provided they meet certain eligibility criteria. They can apply to the Reserve Bank of India, Foreign Exchange Department, Overseas Investment Division, Central Office, Amar Building, 5th Floor, Fort, Mumbai 400 001, through their bank. Registered Trusts and Societies in the manufacturing, educational, and healthcare sectors are permitted to invest in the same sector(s) in a WOS outside India with the Reserve Bank’s prior approval.
Financial Commitment/Investment:
The major reason for forming a Wholly Owned Subsidiary is to diversify a corporation’s commercial activities and provide a unique channel for running it. It also allows the parent company to exert influence over overseas enterprises and markets.
The following are the benefits of a wholly owned subsidiary:
a) Foreign banks that started doing business in India after August 2010 or foreign banks that are not currently doing business in India but want to do so in the future must do so through a totally owned subsidiary if any of the following circumstances apply:
b) If the RBI considers a foreign bank that established a branch presence in India after August 2010 to be systemically important due to the size of its business.
Proposals not covered by the automatic route’s limitations require Reserve Bank approval, which is obtained by submitting a specific application in Form ODI together with the necessary evidence to Authorized Dealer Category – I banks.
When examining such applications, the Reserve Bank will examine the following factors:
To allow recognised star exporters with a proven track record and consistently high export performance to benefit from globalisation and liberalisation, proprietorship concerns and unregistered partnership firms are allowed to set up WOS outside India with the Reserve Bank’s prior approval, provided they meet certain eligibility criteria. They can apply to the Reserve Bank of India, Foreign Exchange Department, Overseas Investment Division, Central Office, Amar Building, 5th Floor, Fort, Mumbai 400 001, through their bank. Registered Trusts and Societies in the manufacturing, educational, and healthcare sectors are permitted to invest in the same sector(s) in a WOS outside India with the Reserve Bank’s prior approval.
a) The WOS will be governed by the Companies Act of 1956, the Banking Regulation Act of 1949, the Reserve Bank of India Act of 1934, the Foreign Exchange Management Act of 1999, the Payment and Settlement Systems Act of 2007, and other relevant statutes, directives, prudential regulations, and other guidelines/instructions issued by the RBI and other regulators from time to time.
b) The regulatory framework for consolidated prudential reporting and supervision, currently applicable to foreign bank branches as laid out in circular DBOD No. FSD. BC. 46/24.01.028/2006-07 dated December 12, 2006, will also apply to WOS in all cases where the parent/group of the WOS in India has NBFCs.
c) If any jurisdiction/bank is found to have deficiencies in the areas of Know Your Customer (KYC), Anti Money Laundering (AML), or Combating the Financing of Terrorism (CFT), banks from that jurisdiction will face significant prudential requirements.
WOS of a Foreign Bank can raise rupee resources by issuing non-equity capital instruments, just like domestic banks can.
All across India, there are varied types of Business Entities, designed for different situations, as stated below:
In addition to the above-stated legal entities, the following types of entities can be incorporated by foreign investors/companies for the establishment of their business in India:
Foreign equity in Indian companies can be up to 100% depending on the demand of the investor and subject to equity caps in respect to the area of activities under the Foreign Direct Investment (FDI) policy. For Registration and Incorporation as an Indian Company, application has to be filed with ROC.
A foreign investor/company can establish:
The formation/incorporation of Company in India shall be as per the terms and conditions of Indian Companies Act, as amended in 2020, along with rules of Foreign Exchange Management Act (FEMA) Regulations.
*FEMA elaborates procedures for the foreign entities to invest in India. Foreign Investments are elucidated in different routes by Government of India:
Prescribed form is required to be filed with the RBI, ROC by the Indian Company on receiving consideration for issue of Shares to the Non-Resident.
Intimation is required to be filed with the RBI, ROC by the Indian company after allotment of shares to the Non-Resident along with the Certificates by Practicing Professionals in India.
STEPS | COURSE | PARTICULARS |
---|---|---|
Step 1 | DIGITAL SIGNATURES CERTIFICATE (Documents required for making DSC is attached herewith as Annexure-3) | The First stage of Incorporation is to make application for Digital Signature certificate for all the directors of the proposed company. Note: 1. The digital signature shall be valid for 2 years. There is no limit in number for signing the E-Form (s). 2. After two years, minimum one director must renew their digital signature. |
Step 2 | OBTAINING DIRECTORS IDENTIFICATION NUMBER (DIN) (information/documents required for obtaining DIN is attached herewith as Annexure-4) | The Second stage of Incorporation of Private Limited Company is to apply for Director Identification Number (DIN) for the proposed Directors of the Company. Each individual has to apply for DIN separately in E-Form DIN-1. The DIN-1 form has to be signed by practicing professional. Note: 1. As per Companies Act, 2013, minimum Two Directors are required to form a private limited company, out of them one must be resident in India in the previous year. 2. Only Individual can be appointed as Director. |
Step 3 | APPLICATION FOR NAME APPROVAL OF THE PROPOSED COMPANY WITH THE ROC (Details/information required for application for reservation of name of the proposed Private Limited Company is attached herewith as Annexure-5) | The third stage of Incorporation of Private Limited Company is the name approval of the proposed Company. E-Form INC-1 has to be filed with Registrar of Companies (ROC) for name approval of the Company. E-Form INC-1 has to be digitally signed by applicant. Note: 1. Maximum six names in order of preference may be given in the E-Form INC-1. 2. Significance of Name(s) must be given. 3. Whether the proposed name(s) are based on a registered trade mark or is the subject matter of an application pending for registration under the Trademarks Act. If yes, furnish particulars of trade mark or application. 4. The name of a private company should end with the words “Private Limited”. 5. If the name of company would contain any word/expression which is a part of name of any other body corporate then a No-objection Certificate (“NOC”) by way of Board resolution for use of such name would be required. |
Step 4 | DRAFTING AND STAMPING OF MEMORANDUM & ARTICLES OF ASSOCIATION (“MOA AND AOA”) | The next step after name approval of the proposed Company is to prepare Memorandum of Association (MOA), Article of Association (AOA), Power of attorney (POA) in favour of practicing professional & Declaration in prescribed format by Practicing Professional and other related documents. Note: 1. As per Companies Act, 2013 minimum 2 Shareholder/Promoters’ are required to form a private limited company. |
Step 5 | INCORPORATION DOCUMENTS TO BE FILED WITH THE ROC | The next step is to file: E form SPICE+ for MOA, AOA of the company All these documents are required to be digitally signed by one proposed Director and practicing professional. |
Step 6 | CERTIFICATE OF INCORPORATION | After filing the documents as mentioned in stage 5, the Registrar will review and issue Certificate of incorporation of the Company. |
Mode of Indirect Presence – As an Unincorporated Entity:
A Foreign Company makes its indirect presence in India by establishing either of the following office(s):
A branch office is not allowed to carry out manufacturing activities on its own but is permitted to subcontract these activities to an Indian manufacturer. Branch Offices established with the approval of RBI, may transfer profits outside India, net of applicable Indian taxes and subject to RBI guidelines. Permission for setting up branch offices is granted by the Reserve Bank of India (RBI).
Branch Office on “Stand Alone Basis” in SEZ: Reserve Bank has given general permission to foreign companies for establishing branch/unit in Special Economic Zones (SEZs) to undertake manufacturing and service activities. The general permission is subject to the following conditions:
SEZ is a specifically delineated Tax Heaven / Duty Free Enclave and is deemed to be foreign territory for purposes to trade operations, duties and tariffs. Goods and services going into the SEZ area from DTA are treated as exports and goods coming from the SEZ area to DTA are to be treated as if these are being imported.
100% FDI is permitted under automatic route for setting up SEZs and Free Trade Warehousing Zones (FTWZ) subject to the SEZ Act, 2005 and the Foreign Trade Policy.
Corporate Tax Rates
The basic tax rate for an Indian company is 30% plus 3% Cess, results in 30.9%. Further, there is also a provision of Surcharge i.e. 7% on the amount of Income Tax if the total income exceeds 10 million Indian rupees (INR) and at 12% if income exceeds INR 100 million.
Foreign companies that have a Branch or Project Office in India are taxable at a higher basic rate of 40% which, with education tax, results in a rate of either 41.20%. Further, the Surcharge is 2% if income exceeds INR 10 million and 5% if income exceeds INR 100 million. A small reduction in the tax rate is being contemplated for 2016.
Business management is the task of organizing business activities to properly execute the work without hindrance. Proper management of business is advantageous for the growth and productivity of the business in long run. It is the imperative aspect because it is what assists in reaching the goals of a company. A company can reach the peak and can fall to ground depending upon the Business Management of the company.
A Business Management Consultant is the person who provides the service of solving the business problems of the company by dispensing effective solutions. A Business Management Consultant is further responsible for the growth of the company, the performance of the company and helps in decision making favorable for the Company to maximize profit and minimize the cost.
The development of the company and its success rate in the market is in the hands of the Business Management Consultant. The important task is analyzing the figures of the company and to check whether such is moving towards benefitting the company or it may end up detrimental to it. Based on the analysis the decision-makings take place.
The services provided by a Business Management Consultant is not limited to one thing but is vast in nature. The management of the business is what makes the roots of the company. The Services of a Business management Consultant are as follows:
The Business Management Consultant needs to deeply analyze the market in which the company exists and also the business markets in which the company is looking forward to enter. It is quite a sensitive task as if the market is not properly studied then it will lead to disruption of the company and the company may incur loses due to non-assessment of the market. The goods or services which are provided by the company is to be assessed and should be placed to a market were cost incurred by the company is covered by the demands of the same in that particular market and further bringing profit to the Company. Analyzing the market is the job of a Business Management Consultant.
As the market environment is analyzed it is important that proper marketing of the goods and/or services which are provided by the Company is marketed properly so that it reaches the end user. It takes extensive work on the marketing sector to make the emerged goods meet the demands, as there is presence of continuous stiff competition. One wrong decision and everything may fall apart. There may be companies providing similar type of goods and services in a particular market creating entry barriers and if such situation is not handled correctly then it may result into downfall of the company. The Business Management Consultant provides with the service of understanding the market and conducting extensive research to provide information which will help grow the company.
The toughest job is decision-making because it is not always easy and hard decisions are needed to be taken for the sake of the betterment of the company/business. The Business consultant guides the Company in proper decision-making so as avoid any disruption in the working of the company. The Business Consultant guides in respect of decisions on investments, products or services provided by the company, profit and loss assessment, risk assessment etc.
Business Growth Planning is the process of systematic process of setting out the goals/targets of the company and ways to achieve the same. It includes studying strengths and weaknesses of the company and comparing the same with the positioning of the Company in the market. It also includes assessment of the competitors in the market.
Risk Assessment involves the idea of assessing the factors concerning the strengths and weaknesses of the company and understanding how it may affect the working of the company as a whole. It includes extensive study of the market environment, market competition, product and service assessment, identifying potential business hazards and taking measures to safeguard the company from the negative aspects of the market.
The Business Management activities also includes understanding Business Projects and how it needs to be delivered. A business project is a work that the Company strategize to achieve which aims to obtain result within a short period of time. The Business consultant firstly helps in understanding the projects which are needed to be accomplished in the present time and to arranges the work projects accordingly depending on its needfulness and further helps in completion of the projects by acknowledging the procedure to achieve the same which is less time consuming and less cost oriented.
The Business Management Activities of the Consultant also includes the service of Mergers and Acquisitions. It includes the process of merging of two or more companies and acquisition which means purchasing of the assets of another company. The Consultant guides in decision-making of whether or not the company should be looking forward to a prospective merger or acquisitions and what are the merits and demerits of the same. Further, how it will affect the allocation of resources of the company and also the financial stability of the company.
The role of the Business Management Consultant as an Advisory Body is to advise the company in respect of decision-making on issues like generation of revenue, tackling difficult decision-making for the company, laying down long-term strategy of the company, implementation of decisions taken, laying down company objectives and how to achieve the same, assessment of long-term and short term goals of the company, evaluation of company resources, assessment of financial risks, financial resource investments and the lists goes on.
Due Diligence is an investigative nature of work. Whenever a company is trying to collaborate with some other company the aspect of Due Diligence comes into purview. It is required that it is to be clearly known that whether or not any investment in a collaboration with a company is beneficial or not. Any wrong step can hamper the growth of the company and thus, special attention should be given to safeguard the company from making any wrong decision. This includes the complete study of the growth, downfalls, assets, disputes, financial stand point, competitors, goodwill of the company to be collaborated with.
Transaction services refers to obtaining services from third parties which includes services from firms or any bank for banking transactions. Transaction consultancy helps in allocating financial resources more efficiently to increase effective decision-making with lower cost burden on the Company.
Allocation of resources plays a vital role in effective investment of the financial resources of the company. The main aim for allocation of resources should be targeted towards increasing profit and decreasing cost on the company. This is the job of the Business Management Consultant who will help the company in making better decisions in respect of allocating financial resources of the company to achieve the strategic goal.
Business valuation is a process to estimate the economic value of the company. Various methods are used by financial market participants to determine the pricing of the business in the market. Few of the valuation techniques are
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