Doing Business In India

DOING BUSINESS IN INDIA

Emerging trends of ease of doing business in India along with ruling government “Make in India” campaign triggered the platform for Vibrant Gujarat, a biennial summit which is considered as one of the flagship international business summit our country witnessessince 2003. After a successful completion of seven editions of this summit which a brain child of the then CM of Gujarat and present PM of country Mr.Narendra Modi,this summit is corroboration of global luminaries consist of heads of states and governments, ministers, leaders from the corporate world, senior policy makers, heads of international institutions and academia from around the world to further the cause of development and to promote cooperation among the nations. Having successfully organized seven constructive summits  held so far have been a great success in showing the growth prospects of the State, its strengths, progressive attitude and the plans and initiatives taken so far to provide effective governance, investor friendly atmosphere and strengthening of art and culture of ,the State Government of Gujarat, as part of its journey towards sustainable long-term growth and inclusive development is organizing the 8^th edition of the Vibrant Gujarat Global Summit .The theme for the summit this year is “Sustainable Economic and Social Development” with additional objectives of Empowering India to compete with the best global economies and providing a platform for global business networking.

During the 7^th edition of summit held in 2015 more than 21,000 memorandums of understanding (MoUs) were signed during this summit, out of which over 17,000 were related to micro, small and medium enterprise (MSME) sector.Around 4,000 MoUs were signed related to large sector industries and 10,119 for Gujarat Industrial Development Corporation and The Gujarat government has also entered into more than 1,200 strategic partnership agreements with focus on 36 sectors. This year also state government is anticipating more investment figures, and the focuses more on forging ties and knowledge sharing among stakeholders.

With so many MOUs and agreements being signed up by parties it is inevitable to know about mechanism of incorporation of MOUs and legal aspect of doing business in India. This article analysis the legal trend being followed bridging the gap between incorporating a MOUs and doing business in India which would help to foreign entities to prosper their business opportunities in India.

EASE OF DOING BUSINESS IN INDIA

The World Bank Report recently remarked “India has embarked on an ambitious path” in its annual report titled “World Bank Doing Business Report, 2017”. With its constant efforts and due developments by amending its policies and  several legislative actions India is opening way for foreign entities who wanted to do business in India.This comprehensive article is a help to those who want to enter Indian markets and want the outlook upon key factors including policies of foreign investment, regulatory framework, entry procedures, taxation guidelines, international agreements and also recent additional regulatory updates.

INDIA-AN OVERVIEW

Background

The economy of India is the tenth-largest in the world by nominal GDP and the third-largest by purchasing power parity (PPP). The country is one of the G-20 major economies, a member of BRICS and a developing economy that is among the top 20 global traders according to the WTO. India was the 19th-largest merchandise and the 8th largest services exporter in the world in 2016.

 Political Structure

India is a Quasi-federal with a parliamentary system governed under the Constitution of India, which serves as the supreme law of the country.  The President of India is the head of state and is elected indirectly by a national electoral college for a five-year term. The Prime Minister of India is the head of government and exercises most executive power and elected among cabinet ministers.

Policy Issues

Ruling government new policies including “make in India”, several initiatives to boost opportunities for startups, improved financial facilities for SME’s etc. are major turning point for investors and new business houses who wants to expand.Furthermore in a bid to boost GDP growth, ruling government first tasks has been to revisit projects that were approved by the previous administration but have yet to start.

 Taxation

Taxes in India are levied by the Central Government and the state governments keeping in mind the federal fabric of the country. Some minor taxes are also levied by the local authorities such as municipality, property taxes, etc. Corporate tax rates are chargedat 30%(including a flat rate of 25%levied on the income earned by a domestic corporate and a surcharge of 5% is levied in case the turnover of a company is more than Rs.1 Crore for a specific financial year) which is fair reasonable level kept by the government’s with the aim to widen the tax base and ensure greater compliance.

  Distribution channel in the Indian market

The straight distribution channel employed in India is a pyramidal structure involving movement of goods from carrying and forwarding (C&F) agents to wholesalers and distributors down to retailers. The new supply chain systems include cutting down on intermediaries as in direct marketing or network marketing. New trend of E-commerce industry have begun several new market interaction schemes including B2B, B2C and C2C.

 Judicial system in India

India has a well – defined hierarchy of courts with the Supreme Court at uppermost point of pyramid and different High courts at states and then various civil and criminal courts at districts level. Constitution of India defines the jurisdiction for all courts and further Supreme Court rules along with High Courts outlines the procedures of the court. Also there are national level tribunals formed to decide about the cases arising out of company disputes, tax disputes, service law matters etc. Additionally, there are distinct procedural laws governing the mechanism adopted in these courts.

Foreign investment policy

Historically, foreign investment was restricted in India after independence. The new  economic reforms initiated in 1991, stimulated FDI into India when the new industrial policy provided, inter alia, automatic approval for projects with foreign equity participation up to 51 per cent in high priority areas along with policies of privatization a and globalization.

Moreover today there are basically three ways through which foreign investment can enrooted in India elucidate as follows-

• Automatic Route – Sectors in which FDI is freely permitted and no prior approval is required from FIPB or RBI.
• Approval Route –Contains the list of sectors for which the automatic route of investment is not available and prior approval from FIPB is required. No further clearance from RBI is required in order to receive inward remittances and issue shares to foreign investors
• Prohibited activities– There are various activities, in which foreign investment is prohibited. For example- Gambling & betting, lotteries, atomic energy, business of Chit funds etc.
• The below table shows sectorial cap of Foreign direct Investment under various abovementioned routes-

LEGAL ENTITY FORMATION AND OTHER ENTRY ROUTES

A foreign investor has several options to establish a business entity in India by virtue of operational extensions in India; by forming a joint venture with Indian counterpart etc. following are different kinds of routes a foreign entity can adopt to enter into Indian market mechanism-

• Corporation– A company may be incorporated in India as a private company or a public company and may have limited or unlimited liability. A company can be limited by shares, where the liability of members is limited to the unpaid contribution on their shares, or by guarantee where their liability is limited to a pre-decided amount. However, companies with unlimited liability and companies limited by guarantee are less prevalent than companies limited by share. The companies incorporating in India are governed by the Companies Act, 2013.

• Public Limited Company

A public limited company is a voluntary association of members which is incorporated and, therefore has a separate legal existence and the liability of whose members is limited. A company must have a minimum of seven members as per Companies Act, 2013 but there is no limit as regards the maximum number. The company collects its capital by the sale of its shares and those who buy the shares are called the members. The shares of a company are freely transferable and that too without the prior consent of other shareholders or without subsequent notice to the company. There is no cap on minimum capitalization requirement for public companies as it were removed by companies (amendment) act, 2015 as an initiative to improve the ease of doing business in India. Moreover, its formation, working and its winding up, in fact, all its activities are strictly governed by laws, rules and regulations.

• Private Limited Company

A private limited company is a voluntary association of not less than two and maximum of two hundred, whose liability is limited, the transfer of whose shares is limited to its members and who is not allowed to invite the general public to subscribe to its shares or debentures . Further, a private company registered under companies act, 2013 is required to restrict transfer of its shares and restricts the number of its members. Moreover there is no cap on minimum requirement of capital for private companies by virtue of companies (amendment) act, 2015.

• Sole Proprietorships and Partnerships

Sole proprietorship is one of the simple forms of business which is owned, managed and controlled by single person who is personally entitled for all profits and losses. Although the owner need no registration but require certain necessary licenses or approval from the local authorities related to its business.

A partnership is a kind of business entity involving two or more persons having definite shares in profit and loss having unlimited liability. In India it got governed by Indian Partnership Act, 1932. A person resident outside India cannot contribute to the capital of a partnership firm or sole proprietorship, except with the prior permission of RBI. The RBI may, subject prescribed conditions, permit a person resident outside India to contribute to the capital of a firm or proprietary concern.

• LLP’S

Limited Liability Partnership, popularly known as LLP combines the advantages of both the Company and Partnership into a single form of organization. In an LLP one partner is not responsible or liable for another partner’s misconduct or negligence; this is an important difference from that of a unlimited partnership. LLP is managed as per the LLP Agreement, however in the absence of such agreement the LLP would be governed by the framework provided in Schedule 1 of Limited Liability Partnership Act, 2008 which describes the matters relating to mutual rights and duties of partners of the LLP and of the limited liability partnership and its partner.  There should be at least 2 persons (natural or artificial) are required to form a LLP. In case any Body Corporate is a partner, than he will be required to nominate any person (natural) as its nominee for the purpose of the LLP.

• Alternate Entry points to legal entity formation

1.4.Liaison Office

A liaison office can be opened after obtaining approval from the RBI. Liaison Office is allowed only to carry out promotional activity and no actual sale or other revenues can be generated from this liaison office. They are used to obtain data and statistics and product research work prior to launching of the company’s products. Further, all monies coming in the Liaison office account shall be in convertible currency and no local currency can be put in the same account except for any refunded deposit money at the expiry of a lease.

• Branch office

This is allowed to be opened for carrying out specific projects after prior approval of the RBI on submission of documentation showing the temporary nature of the project. This model has the least hassles and it is easy to windup the operations when the business ends. Taxation is about 12% higher than a normal tax on companies and is currently at about 45% of the profits generated by the variant of the Branch Office. Additionally, the Project Office which is permitted by the RBI for the execution of specific projects as undertaken in India by a Foreign Company.

• Joint Venture Route

 This is a popular entry strategy for sectors not permitting 100% automatic route for investments or where the Foreign Company is testing the waters regarding the market for its product in India or India as a sourcing hub for its international operations. The prospective partner in a JV Company (JVC), should be chosen based upon business reasons/ strategy, financials and the long term goals of the Foreign Company in India. Due diligence is also required on the general market reputation, capability and penetration of the prospective JV partner and a personal credit rating is also recommended.

• Wholly Owned Subsidiary

 It is one of the easy entry options where under all the categories where 100% foreign investment is allowed, they fall in the automatic route, which means that there is no requirement of any prior permission and an Indian company can be opened without much trouble, only there is a requirement of intimation to the RBI after the investment is made. .The preferred modus operandi would be to instruct a lawyer or an accountant to use local Indians to open a shell company with two resident Indian as the shareholders as well as the first directors, and when that company is incorporated, a set of first board resolutions are prepared.

• Franchise Arrangements

This is one of the facile options available to enter into market mechanism as the restrictions on franchise fee, royalty payments and brand license fees have been relaxed. Moreover, with the government significantly liberalizing the regulations governing single brand retail trading and multi-brand retail trading sectors, many foreign companies with franchise arrangements are considering buying out their franchise partner.

• Investment by FPIs

FPIs are regulated by SEBI, and have to comply with the SEBI (foreign portfolio investors) regulations,2014.SEBI acts as a nodal agency for registration of FPIs in India and got sanctioned for such registration by RBI.FIIs and QFIs under the regulations have been given time to transition to the FPI regime. Various different entities under prescribed different categories can obtain registration as FPI regulations.

• Documents Requirements for Unit Establishment

1. Obtaining DIN (Director Identification Number) / DPIN for LLP companies.INC-29 is now the only document required to start a new company or business in India. The ministry of corporate affairs has introduced a major reform that cut downs the number of documents required to incorporate in India from 8 to just 1 [INC-29].
2. Applying for name availability
3. Drafting Memorandum of Understanding (MOU) and Articles of Association (AOA)
4. Court stamping of MOU and AOA
5. Signing of MOU and AOA by first subscribers
6. Filing with Registrar of Companies (ROC)
7. Vetting of MOU and AOA by ROC
8. Obtaining certificate of incorporation

• Immediate Business compliances:

1. PAN (Permanent Account Number): All income tax payers are required to obtain an income tax registration number i.e. PAN
2. TAN (Tax Deduction Account Number): While running a business, certain payments will require the payee to withhold tax. A new business is required to obtain Tan from income tax department.
3. Service tax: A person/company providing specified services needs to obtain service tax registration within 30 days of providing the services.
4. VAT (Value Added Tax): VAT is levied on sale of goods. Any business proposing to carry out a works contract or trade in goods needs to register for VAT.
5. Excise registration: Excise is an indirect tax levy on manufacture of goods FRRO (Foreigners Regional registration Office): Foreigners coming to India on employment need to register with FRRO within 14 days of their arrival.
6. IEC (Import Export Code): Prior to carrying out any export or import activities, it is mandatory to obtain an IEC from Directorate General of Foreign Trade.

• Funding of Indian businesses:

1. Equity capital: equity owners are considered as owners of the company. They carry voting rights in the investee company. Furthermore, no end-use restrictions are upon them and their pay-out is via dividend.Equity shares are freely transferable subject to sector specific lock-in conditions.

Additional capital can be raised by any of the following modes subject to regulatory conditions i.e. Rights issue, Partly paid equity shares/warrants ,against import of capital goods and pre-incorporation expense , against legitimate dues of the investee company, issue price and moreover, transfer price of equity shares is subject to pricing guidelines based on internationally accepted methodologies.

2. Preference share capital: It can be categorized under compulsory convertible into equity and these are treated as equity under FDI policy. Another one is optionally convertible and is treated as external commercial borrowings.
3. Debentures and borrowings:Companies can raise funds by dispensing debentures, bonds and other debt securities or by acquiescent deposits from the public. Debentures can be redeemable, perpetual, bearer or registered, and convertible or non-convertible. It Compulsorily Fully Convertible Debentures are treated as equity under the FDI policy. Non- convertible/optionally convertible debentures are construed as ECB and should conform to ECB guidelines. Conversion ratio on Compulsorily Convertible Debentures should be determined prima facie. Rate of interest is subject to transfer price under tax and company law.
4. ADRs, GDRs and FCCBs: Qualifying Indian companies can raise equity capital overseas by issuing ADRs, GDRs or FCCBs (INR denominated equity shares/ bonds).The company must seek the approval of the FIPB in specific cases. Additionally, no monetary limit on the amount for which ADRs, GDRs can be issued and end use restrictions only for utilization of such funds in real estate/stock market. FCCBs to conform to ECB guidelines.
5. Funding of LLP: Investment in LLP is through capital contribution and is subject to conditions under the FDI policy. Furthermore, LLPs are not permitted to avail ECB.

• Repatriation of funds:

1. Repatriation of capital by a company- Foreign capital invested in India is usually allowed to be ousted along with capital appreciation, if any, after payment of taxes due, provided the investment was made on a repatriation basis, subject to any lock-in conditions that may be applicable under FDI regulations. It can be done in two modes –

• Buy back of shares: –Buy-Back can be subject to limits specific under Indian corporate law and FDI regulations .Moreover Company buying out shares liable to pay distribution tax at 23.07%.
• Capital reduction- This is Court-driven process (approval by NCLT under companies act, 2013) subject to limits under FDI regulations. It is subject to DDT at 20.36% in the hands of the company to the extent of accumulated profits and further consideration in excess of accumulated profits subject to capital gains tax in the hands of shareholder.

2. Repatriation of profits – Profits earned by an Indian company can be repatriated as dividends after payment of DDT at 20.36% without the RBI’s permission, subject to acquiescence with certain specified conditions.
3. Repatriation of funds by an LLP– Partners of an LLP can freely induce a share of profits without any tax outflow. Interest on capital can be paid conferring to LLP laws. Taxes, if appropriate, will have to be suspended on the amount sought to be paid.
4. Repatriation for Royalties and fee for technical services:-

• Royalties and technical knowhow: – Indian companies entering into technology transfer agreements with foreign companies are permitted to freely remit payment for know-how and royalties under the terms of the foreign collaboration agreement.
• Fee for technical and management services: – Companies can rental the services of foreign technicians and make payments for technical service fees, conditional on certain conditions, regardless of the duration of the rendezvous of a foreign national in any calendar year.
• The remittances to foreign companies in the nature of royalties and fees for technical services are subject to tax withholding at applicable rates. Effective from 1 April 2015, taxes on royalties and technical services have been substantially reduced from 25% to 10% under the IT Act,1961.

Regulatory Environment

• Companies Law- The Indian Companies Law Act, 2013 is a new piece of legislationenabling companies to be formed by registration regulates and set out the responsibilities of companies, their directors and secretaries. It has multiple implications for private & public companies operating in India. As an initiative for doing business in India under titledCompanies Amendment Act of 2015 brings by government which updates the previous 2013 amendment act with new provisions designed to improve ease of doing business and accelerate new business opportunities. It addresses issues such as incorporation, corporate governance and management of subsidiaries. Provisions that will affect foreign companies doing business in the country are append below-

1. Incorporation and Business Commencement

Incorporation processes have become much easier under the amendment.

The 2013 law required minimum paid-up capital of up to INR 0.1 million (US$ 1,572) for private companies and INR 0.5 million (US$ 7,862) for public companies. These requirements have been removed completely; no initial capital will be required to incorporate a private or a public limited company.

Requirements for a common seal for all official authorizations and attestations have been made optional under the said amendment which made easier for new companies to start new business without technical jargons.The amendment accepts a company director’s signature as a substitute for a common seal.

Under the 2013 law, businesses needed to apply for a certificate to commence business in India after incorporation. This requirement has been removed.

2. Board Resolution Confidentiality

Under the 2013 law, Board resolutions were public and could be accessed from the Registrar of Companies (ROC). The amendment removes this provision; no individual will be able to obtain copies of board resolutions passed by a company and filed with the ROC. This enables companies to work as per their industry requirements intact their working environment fabric.

3. Loans to Wholly Owned Subsidiaries

The amendment clarifies that holding companies can lend to their wholly-owned-subsidiaries. They can provide guarantees on a loan made by a bank or financial institution to the subsidiary. However, holding companies can only lend to their wholly owned subsidiary under the condition that the funds will be utilized by the subsidiary for its principal business activities. This makes capital requirements for subsidiary company available without formalities.

4. Divided declarations by a company having losses

The amendment adds an additional provision to Section 123(1) under which companies will not be allowed to declare dividends unless carried over past losses and depreciation in previous years are set off against profit of the company for the current year. There have been major cases of companies paying dividends despite making losses in order to satisfy shareholders and lenders so to adopt an accountable parameter and safeguards the interest of public at large this amendment ensures transparency and accountability.

5. Related Party Transactions

Under amendments made to section 188, related party transactions above INR 10 million (US$ 158,000) can now be approved with a resolution instead of a special resolution. Additionally, no resolutions need to be passed for related party transactions between a holding company and its wholly owned subsidiaries if their accounts are consolidated and placed before shareholders in a general meeting for approval.

6. Punishments for failing to repay deposits

The amendments provide specific punishments to deal with failure to pay back depositors under Section 73 and Section 76 of the 2013 law. A company, in addition to paying the amount of deposit or interest due, will be punishable with a fine which shall not be less than INR 10 million (US$ 158,000) but which may extend to INR 100 million (US$1.6 million). Also, every officer of a company who is in default shall be punishable with imprisonment, which may extend to seven years, or with a fine which shall not be less than INR 250,000 (US$3,900) but which may extend to INR 20 million (US$315,000), or both.

The amendments to the Companies Act, 2013 demonstrates that the government is committed to making the law more responsive to the domestic business and foreign investment community. The amendments show that the government is willing to amend aspects of the law that are not working for businesses in India, and is encouraging development. Also government had set up an expert committee to suggest timely needful amendments and in near time we can witness a more comprehensive business favorable environment.

• Stock Exchange Board of India (‘SEBI’) – The SEBI is the regulator for the securities market in India. SEBI protects the interests of investors and to promote the development of securities market in India. It is an autonomous statutory body invested with powers to regulate the issue of shares, disclosures by companies and authorized to grant various sanctions both for listed companies and many a times for unlisted companies.

• Competition Commission of India (‘CCI’)– Competition Commission of India is a body of the Government of India responsible for enforcing The Competition Act, 2002 throughout India and to prevent activities that have an adverse effect on competition in India. CCI to promote and sustain an enabling competition culture that would inspire businesses to be fair, competitive and innovative; enhance consumer welfare; and support economic growth. Further if any company have combine with other foreign enterprises then they have to comply with the thresholds limits provided under the act (section-5 of competition act,2002) and these combinations are regulated(section-6 of competition act,2002) in the manner prescribed by CCI.

Apart from above other laws affecting business environment in India are-

• Transfer of Property Act: deals with the rights and liabilities of concerned parties in respect of immovable property and deals with the provisions of sale, transfer, gift, mortgage, lease and actionable claims.
• Registration Act: contains provisions for the purpose of maintaining land records Registry and registration of all transactions relating to immovable properties.
• Contract Act: codifies the way parties can enter into a contract, execute a contract, implementation provisions of a contract and effects of breach of a contract. It only provides a framework of rules and regulations which govern formation and performance of contract. The rights and duties of parties and terms of agreement are decided by the contracting parties themselves and further it also specify about specific kind of contracts like bailment, pledge etc.
• Stamp Duty Laws: the scheme of stamp duty laws under the Constitution of India provides for powers of the State Governments to prescribe the rates of stamp duty in respect of most of the documents relating to transfer or creation of interest in property, both movable and immovable.
• Hire-purchase and financial lease transactions: There is no statutory provision covering hire-purchase and lease of movables. The Hire Purchase Act, 1972 has so far, not been brought into force. As a result, the transactions of hire-purchase and lease of movables are governed by the provisions of the Indian Contract Act, 1872.

-The Courts in recent times have adopted a pro-consumer approach. The Courts, in India, have now started awarding compensation and damages which are more punitive than compensatory in nature. Product liability in India is, essentially, governed by a) The Consumer Protection Act, 1986 b) The Competition Act, 2002 c) The Sales of Goods Act, 1930 and d) The law of Torts. While the Consumer Protection Act and the Sales of Goods Act cater to causes of action vis-a-vis consumers and buyers, the Competition Act, on the other hand, has been designed to prevent concentration of economic power to common detriment as well as to control monopolies.

• Criminal remedy are also there under Indian laws which regulates supply of defective product and strict penal actions are envisaged under various statutes, namely: (a) The Foods Adulteration Act, 1954

(b) The Food Safety and Standards Act, 2006

(c) The Drug & Cosmetics Act, 1940

 (d) The Indian Penal Code, 1860

 (e) The Standards of Weights and Measure Act, 1976

– Each of the aforesaid Acts provides for imposition of fine and/or imprisonment in case of supply of defective products or adulterated consumables.

TAX SYSTEM IN INDIA

The Constitution of India under article 245 and 246 provides the power to Central and State read along with schedule VII to impose taxes under various subjects authorized under the union and state list respectively. The union government levies certain taxes as per the union list. They are: Income Tax, Customs duties, Central Excise, Sales Tax,Service Tax, Capital Gains Taxand Securities Transaction Tax.

The principal taxes levied by the State Governments as per the state list subjects are Sales Tax on intra-State sale of goods or Value Added Tax ,Stamp Duty on transfer of assets,State Excise duty on manufacture of alcohol, Duty on Entertainment ,Tax on Professions in some States and  Utility taxes.

Moreover Indian tax system is bifurcated in two projections i.e. direct taxes and indirect taxes. Direct tax has a direct impact on the tax payer i.e. it is paid by the person on whom the actual burden lies whereas under indirect tax the burden of tax is shifted upon others by the tax payer.

• Direct Taxes

Direct tax by way of Income tax is levied by the Central Government. Administration, supervision and control in the area of direct taxes lie with the CBDT; it is regulatory body which is responsible for regulating direct taxes in India.

The Indian tax year extends from 1 April of a year to 31 March of the subsequent year. The due date for filing ROI for corporations is 30^th November Company required to submit a transfer pricing certificate in Form 3CEB (with respect to international transactions or specified domestic transactions) and 30^th September for other companies.

Non-resident corporations are also required to file a ROI in India if they earn income in India or have a physical presence or economic nexus with India as per CBDT rules . Corporate tax liability needs to be estimated and discharged by way of advance tax on quarterly basis. Late filing of a ROI and delays in payment or shortfalls in taxes are liable to attract penal interest at prescribed rates.

1. Corporate income tax

For Indian income tax purposes, a corporation’s income comprises the following heads of income:

• Income from house property
• Income from business
• Capital gains on disposition of capital assets
• Residual income arising from non-business activities

Corporations resident in India are taxed on their worldwide income arising from all sources.  Whereas Non-resident corporations are taxed on the income earned through a business connection in India or any source in India or transfer of a capital asset, being any share or interest in a company incorporated outside India, deriving its value substantially from assets located in India.

Place of Effective Management (POEM) -A corporation is regarded as a resident in India if it is incorporated in India or if its POEM is in India. The concept of POEM has been introduced from 1 April 2015 for determining the tax incidence of foreign companies in India. POEM has been defined to mean a place where key management and commercial decisions i.e. head and brain of the business entity is taken. Draft guidelines have been issued by CBDT for determination of POEM in December 2015 for public consultation. Specific exception has been carved out from the general rules to determine the residential status and business connection for eligible overseas investment funds carrying on fund management activities through an eligible fund manager.

Double Taxation Avoidance Agreement (DTAA) – There are many DTAA Treaties signed between India and other countries and it will be beneficial if such agreement is there between India and the country of non-resident, in that case the provisions of the IT Act or the DTAA, whichever is more beneficial will apply and, accordingly, the taxability is likely to be restricted or modified. However, in order to be eligible for DTAA benefits, a non- resident is required to obtain valid TRC containing prescribed details and also file a self-declaration in Form 10F, where required.

General Anti-Avoidance Rule (GAAR) Implementation of GAAR is now deferred to 1 April 2017 and will be aligned with OECD BEPS recommendations. Rules are expected to be amended to provide that investments made up to 31 March 2017 will be protected from GAAR.

Normal rate of tax to be charged

Domestic and foreign corporations are subject to tax at a specified basic tax rate (25%) and, depending upon the total income, the basic rate is increased with a surcharge (5% with increase in capital every financial year. Furthermore, the tax payable by all corporations is enhanced by an education-cess at the rate of 3% of the tax payable, inclusive of surcharge.

An LLP is liable to pay tax at the base rate of 30%, which is to be further increased by surcharge at the rate of 12% and education cess at the rate 3%. There is no repatriation tax cost while profits are distributed by an LLP, as the share of such profits in the hands of the partner(s) is exempt.

2. Minimum Alternate Tax (MAT)

 Indian tax law requires MAT to be paid by corporations on the basis of profits disclosed in their financial statements. In cases where the tax payable according to regular tax provisions is less than 18.5% of their book profits, corporations must pay 18.5% (plus surcharges and cess as applicable) of their book profits as tax. Book profits (for this purpose) are computed by making the prescribed adjustments to the net profit disclosed by corporations in their financial statements.

A report from a chartered accountant, certifying the quantum of book profits, must be filed along with the ROI. The CBDT has clarified that with retrospective from 1 April 2001, the specified source of income of foreign companies (including FIIs/FPIs) not having PE in India under relevant DTAA, will be excluded from the purview of MAT where the income tax payable on such income under normal provisions of the IT Act is less than the tax payable under MAT provision. Such source of income includes capital gains (whether long term or short term) arising on transfer in securities, interest, royalty or fees for technical services chargeable to tax in India. Consequently, corresponding expenses are also excluded while computing MAT.

3. Dividend Distribution Tax (DDT)

Other domestic corporations must pay DDT at the rate of 20.36% (After grossing up DDT and 12% surcharge and a 3% education cess) on dividends declared, distributed or paid by them. Such tax is a non-deductible expense. Where the recipient domestic corporation declares dividend, credit for dividend received from the domestic subsidiary and foreign subsidiary is available for computation of dividend on which DDT is to be paid by the recipient domestic corporation, subject to prescribed conditions.

4. Tax on buyback of shares of an unlisted Indian company

An Indian unlisted company has to pay 23.072% (including surcharge and cess) tax on “distributed income”(differential between consideration paid by the unlisted Indian company for buy-back of the shares and the amount that was received by the unlisted Indian company) on buyback of shares. Whereas, the shareholder is exempt from tax on proceeds received from the buyback of shares. No deduction is allowed to the unlisted Indian company in respect of such tax.

• Indirect Tax

There is plethora of taxes levied indirectly and has different implications on different stages for the business houses. These indirect taxes are governed by various pieces of legislations India such as customs act, service tax act, central excise act etc. Following are different indirect taxes along with specified applicable rates and incidence of such taxes-

1. Customs Duty– It is levied at standard rate of 29.44%.Customs duty is levied on import of goods into India and is typically payable by the importer. It has various components including Basic customs duty (BCD), Additional customs duty (CVD) — in lieu of excise duty, Education cess/secondary and higher education cess and Special additional customs duty (SAD). CVD paid on the import of goods is allowed as credit against the output excise/ service tax liability, subject to conditions SAD paid on the import of goods is allowed as credit only to a manufacturer against the output excise duty and not to an output service provider or a trader of goods, subject to conditions.
2. Excise Duty– levied at standard rate of 12.50% and applicable on the manufacture of goods within India and is payable by the manufacturer. Goods manufactured in India can be exported without the payment of excise duty, subject to specified conditions. Inputs used in the manufacture of goods to be exported can also be procured without payment of excise duty, subject to conditions.
3. Service tax – levied at the rate of 14% and applicable on all services provided in exchange of consideration by one person to another attract Service tax excluding services covered under the negative list and those specifically exemption.
4. Value added tax (VAT)– levied at rate of 4% – 14.5% (varies depending on the product and state as levied by the state governments on local sale or purchase of goods within a state.
5. CST– levied at rate of 2% or the VAT rate in originating state Levied by central government on inter-state movement of goods subject to fulfillment of certain conditions.
6. Entry tax/Octroi/Local body tax– It varies from state to state. Further it is applicable levied on the purchase value of the goods Levied by state/local authorities on goods that enter their jurisdiction and rates vary across state/local authorities.
7. Research and Development cess – Levied at the rate of 5% by the Government of India on the import of technology by an industrial concern into India. This cess is to be paid by the importer of technology on payments made for such imports.
8. Further different other taxes and duties such as stamp duty, professional tax, luxury tax, property tax are levied at different states at variable rates.

• Goods and Services tax regime

Overview of GST framework in India

The Government of India has proposed to replace the indirect tax regime in India by a comprehensive dual GST. In keeping with the federal fabric of India, it is proposed that GST will be levied concurrently by the center (CGST) and the states (SGST). The base and other essential design features would be common between CGST and SGST for the individual states. The GST structure will follow the destination based taxation principle, i.e., imports will be included in the tax base, while exports will be zero rated. All inter-state supplies within India will attract an Integrated GST (IGST), which will be the aggregate of CGST and SGST. The revenue neutral rate proposed by the Chief Economic Advisor of the Empowered Committee is between 15% – 15.5%. The final rate would be decided by the GST council. The full input credit system will operate for CGST, SGST and IGST. It has been passed by parliament and in process of getting consonance from the states.

OVERVIEW OF INCENTIVES GRANTED TO DIFFERENT BUSINESS UNITS

12. Special investment and tax incentives are given for exports. In addition, the company declaring dividends are required to pay a tax @ 12.5 percent plus surcharge and education cess. However the dividend money in the hands of shareholders is not taxable at all. Moreover, exporters and other foreign exchange earners have been permitted to retain 25% of their foreign exchange earnings in foreign currency. Further, for 100% Export Oriented Units and units in Export Processing Zones, EHTP and STPI, retention in foreign currency is allowed upto 50%.
13. Other incentives include:

• Tax holiday for a period of 5 continuous years in the first 8 years from the year of commencement of production;
• Exemption from taxes on exports earnings even after the period of tax holiday;
• Exemption from central and state taxes on production and sale;
• Permission to install machinery on lease;
• Freedom to borrow self-liquidating foreign currency loans at the prime rate of interest;
• Inter-unit transfers of finished goods among exporting units;
  1. Procedures for tax incentive/ special treatment

Tax Incentives are available on par with any other Indian company specially in the SEZ (Special Economic Zones) that makes the company get exempted from several category of taxes such as service tax, custom duties, excise and in certain cases even the income tax if it is a 100% export oriented company. STPI (Software Technology Park of India) units are entitled to avail several tax exemptions.

1. Tax incentives for foreign investment

Appropriate tax exemptions are given in case of export oriented companies and that is one of the areas that get the maximum benefits, however the domestic market also is very potential since it is a number game, the more you can sell the lower your production cost would get, do not forget it is a billion plus people in India.

IMMIGRATION LAWS OF INDIA

 Immigration laws in India are simple and getting a work visa is not difficult. One can also get a long term business visa that would allow supervisory work off and on as required. One does not attract income tax unless he has stayed in India for 183 days in a financial year that is from April 1 to 31st March of the next year. Indian companies are free to employ foreign individuals and or directors on a need basis and do not require any special permissions for the same. Foreign employees can remit back upto 75% of their salaries, considering the fact that 33.5% is the tax deductible at source, they can send all of their salaries technically after payment of tax that is any way deducted at source in case of employees.

 LABOUR LAWS

There is a plethora of labour laws like Minimum Wages Act, Industrial Disputes Act, Provident Fund, Maternity Benefit Act, Gratuity contribution laws and General Medical Insurance etc., which governs the working and wage conditions for employees under various sectors. The financial implications of the regulations are not huge as the limits provided therein are very low and do not create any drastic burden on the employer/industry.

ENVIRONMENTAL LAWS

 The main pollution control statutes in India are the Water (Prevention and Control of Pollution) Act, 1974 the Air (Prevention and Control of Pollution) Act, 1981, and the Environment (Protection) Act, 1986, which is designed to act as an umbrella legislation for the environment, with the responsibility for administering the new legislation falling on the Central Pollution Control Board (CPCB) at the national level and the State Pollution Control Board (SPCB) at the State level. All industries (excepting acknowledged non-polluting industries e.g., Wind Power Generation) have to obtain clearance from the CPCB and/or SPCB for the establishment of the industry.

 INTELLECTUAL PROPERTY RIGHTS PROTECTION

India does not have a single legislation for the purposes of Intellectual Property, but a whole set of statutes are available which together constitute a self-contained comprehensive code. Intellectual property in its various forms is protected by several different legislations in India. They are appending below:-

1. Patents Patent Act, 1970 (Amended in 2005)
2. Copyright Act, 1957 (As amended in 1994)
3. Design Designs Act, 2000
4. Trademark Trademarks Act, 1999
5. Geographical indication Geographical Indication Act, 1999
6. Plant variety Plant Varieties and Farmers Rights Act 2001
7. Semi-conductors and their design Semiconductors and Integrated Circuit Layout Design Act 2000

– The statutes define the intellectual property right protected under it. They also create a codified structure of the governing authorities and the rules regarding proceedings, offences & penalties.

• Modes of Acquisition of IPRs

The diverse modes of acquisition of IP are:

1. Grant- Registration, Publication Patents are obtained by grant. Design Rights, layout design rights, plant variety rights, trademarks and geographical indications require registration. Copyright is acquired by publication.
2. Assignment -The assignment deed has to be in writing duly signed by the owner in the presence of two witnesses. It has to be registered with Controller or Registrar as prescribed by the relevant statute. Authorities shall make entry of such deed in their records. The period of assignment of a Copyright shall be deemed to be five years from the date of assignment, unless the agreement specifies a particular term.
3. Transmission – Transmission of intellectual property rights means inheritance of such rights. It shall be done only when rights of heirs have been established. The easiest way out for a legal heir, is to go for a declaratory suit and get his right declared and affirmed by the Court.

• Licensing of Intellectual Property in India

1. Licensing a Formal Act -The instrument granting license has to be in writing duly signed by the owner in the presence of two witnesses. License has to be registered with Registrar or Controller, whichever is the concerned authority, for the user to become a registered user. Certain Statutes allow licensing without registration.
2. License Heritable -In case of death of the licensee before work comes into existence or where work is pending for registration, the legal heir of the licensee shall be entitled to the benefit of the license provided there is no agreement to the contrary.

• Remittance of Royalties

 FEMA requires that royalties may not exceed 5% on local sales and 8% on exports from India and the lump-sum payment does not exceed USD 2 million. RBI regulates the remittance of royalties. RBI has delegated powers to Authorized Dealers (AD) to make payment of royalties under IP collaboration agreement.

– RBI allows payment of foreign technology collaboration fees by Indian companies under the automatic route which means no prior permission of the RBI is needed provided that the following conditions are fulfilled:

1. royalty amount does not exceed the limits mentioned above;
2. royalty limits are net of taxes and conform to standard conditions;
3. Royalties are calculated on the basis of ex-factory sale price of the product, exclusive of excise duties, minus the cost of the standard bought-out component and the landed cost of imported components, irrespective of the source of procurement, including freight, insurance, customs duties, etc.

• As the saying “Prevention Is Better than Cure” several preventive and control measures are available and applies to IP protection. Following are a few strategies for preventing infringement and keeping infringers at bay:

1. Wide notification of IP rights in target country.
2. Marking goods pending grant of Patent as “Patent Pending”.
3. Putting up copyright notices.
4. Advertising Trademarks and Service marks.
5. Educating partners and employees about IPR.
6. Warn infringers
7. Make a reputation for protecting IPR.
8. Involve Police Authorities where law permits.
9. Public destruction of IPR infringing materials
10. Organized response to IPR infraction.
11. Litigation either by seeking interim relief or by Prosecute with alacrity.

IP infringement by Local Business Partners:

• It is advisable for any foreign company entering into a joint venture with an Indian Partner that it must have specific dialogue on IPR and that it must be reflected in the shareholder’s agreement. In case of technological collaboration venture where IPs are imported, independent agreement between foreign company and the new company must be signed separately stating the limitation of right and terms of license/ assignment for the rights.
• In case of formation of wholly owned subsidiary, parent company shall own the Intellectual property rights of the subsidiary company. If sweat equity has been issued to an Indian partner, there is no requirement of separate agreement between the two. All it requires is to show an entry in the balance sheet of the wholly owned company that existing IPs have been borrowed from the parent company.
• In case of import of intellectual property in India by a partner, IPRs shall be governed by the written agreement signed between the parties and violation of that agreement will amount to infringement.
• Although well-known marks have statutory protection, it is always advisable to have the trademark registered with the Indian Trademark Registry taking into account future business plans. Moreover as an initiative for easing route for trademark registration have been automated recently of the Ministry of Commerce and Industry.

KEY INTIATIVES TAKEN BY GOVERNMENT FOR EASE OF DOING BUSINESS IN INDIA

Following are the initiatives taken by central government in response to “make in India” campaign and targets to accelerate the growth of country in the present global trend-

1. Facilitating investments–

• Investor Facilitation Cell established to provide primary support for all investment queries and for providing handholding and liasioning services to investors
• Dedicated Japan Plus Cell established to facilitate and speed up investment proposals and augment economic ties between India and Japan
• Dedicated desk established to facilitate and speed up investment proposals and augment economic ties between India and Korea, China, Canada, the US
• E-Biz: A single-window online portal, where any investor looking to start a new business or establishing a new industrial unit, can avail core services needed to obtain necessary clearances, licenses, complete mandatory tax registrations and regulatory filing that are required to operate the business/industrial unit
• Checklist with specific time-lines has been developed for processing all application filed by foreign investors in cases relating to Retail/ NRI/ Export oriented units
• Investments in LLP opened up to foreign investors in specific sectors.

2. Simplification in administration of labor laws

• ShramSuvidha -Multiplicity of labor laws and the difficulty in their compliance had always been cited as an impediment to industrial development. In order to redress the same, Government launched an online portal ShramSuvidha, which is expected to facilitate:
• Ease of reporting at one place for various labor laws
• Consolidated information of labor inspection and its enforcement
• Allotment of Labour Identification Number (LIN) to units to facilitate online registration and filing of returns
• Real time registration with Employee State Insurance Corporation (ESIC) and Employee Provident Fund Organization (EPFO)

3. Simplifying operation of business in India

• Curbing the need of Consent to Establish/No Objection Certificate (NOC) letter for new electricity connections.
• Online application and monitoring for environmental and forest clearances.
• Simplification in obtaining industrial licenses:
• Simplified forms for obtaining industrial licence and Industrial Entrepreneurs Memorandum (IEM)
• Granting security clearance on Industrial License applications within 12 weeks by Ministry of Home Affairs
• Dual use items (defence and civilian items) unless classified as defence items, will not require industrial licenses
• Initial validity period of industrial licenses has been increased to three years from two years to enable procurement of land and obtain necessary clearances/approvals from authorities
• Frequently asked questions (FAQs) have been developed and uploaded on Department of Industrial Policy & Promotion (DIPP) website
• Reduction in the mandatory documents required for import and export of goods from eleven to three.

4. Simplification of various compliance under the Companies Act
   • The Ministry of corporate affairs constituted the Companies Law Committee in June 2015 to examine and make recommendations on the issues arising out of implementation of the Companies Act, 2013.
   • The committee suggested nearly 100 amendments to the new Companies Act to make it easier to do business in India. This includes for simpler laws to incorporate a company and to raise funds, as well as for insider trading and dealings with top executives
   • The Companies Amendment Act, 2015 has been passed to remove requirements of minimum paid-up capital and common seal for companies and certificate of commencement of business for private companies.
   • Introduction of integrated process of incorporation wherein the name of the company can be simultaneously obtained with application for Directors Identification Number (DIN)
   • Single process for incorporation of company, allotment of Permanent Account Number (PAN) and Tax deduction Account Number (TAN).

START-UPS IN INDIA

This initiative aims at fostering entrepreneurship and promoting innovation by creating an environment that is fit for the growth of Start-ups. The objective is that India must become a nation of job creators instead of being a nation of job seekers. Keeping this in mind Government has decided to provide an enabling environment for nurturing talent, simplifying systems and processes, handholding and incubating new ventures by providing financial support through this new initiative A ‘Start-uphas been defined under the ‘Startup India’ action plan dated January 16, 2016 as 

“An entity, incorporated or registered in India not prior to five years, with annual turnover not exceeding INR 25 Crore in any preceding financial year, working towards innovation, development, deployment or commercialization of new products, processes or services driven by technology or intellectual property.”

The entity will not meet the requirements of a Start-up if it is formed by splitting up, or reconstruction, of a business already in existence.

• Benefits given to startups

• Start Ups shall get three years Tax exemption and concessions on capital gains tax.
• There shall be no regulatory scrutiny for three years and the compliance shall be based on self-certification
• Startups in the next four years shall be backed up by Special Fund of Rs 10,000 Crore i.e., Rs. 2500 Crore Per Year
• A Startup India Hub will be created that shall enable a single point of contact for interactions with the government.
• Introduction of Atal Innovation Mission (AIM) for promotion of research and development. Otherdevelopments include New Innovation Center, Research Center and Institutes will be established.
• For a startup to close down its business there shall be a time period of 90 days.
• There would be 80 per cent reduction in patent filing fee and provision of a faster application mechanism to file a patent.
• There shall be no need for a turnover or experience, but there should be no compromise in quality.
• Start Ups can even be registered by a Mobile Application in one day.
• Procedure for involving 5 lakh schools and 10 lakh students in the core innovation programmes.

• Exemptions given to startups

Government announced a range of edges in the 2016 Budget for startups, which included 100% tax exemption for three years and allocation of Rs 500 Crore for SC/ST and women entrepreneurs, aiming at facilitation of Business.

In order to promote innovation, a special patent regime has been proposed with a 10% rate of tax on income from worldwide exploitation of patents developed and registered in India under the ‘Start Up India Action Plan’. The proposal is also to launch a ‘Fund of Funds’ which intends to raise Rs 2,500 Crore annually for four years to finance the startups.

The Budget proposes to insert a new Section 54EE under IT act,1961 to provide exemption from capital gains tax if the proceeds are invested in units of such specified fund, subject to the condition that the amount remains invested for 3 years failing which the exemption shall be withdrawn.

 To reduce costs in their crucial formative years, startups shall be provided an 80% rebate in filing patents with other companies.

RBI’S new regulations for startups to raise foreign funding.

 RBI has underlined the steps taken by the Government’s to promote the ease of doing business and contribute to an ecosystem conducive for growth of entrepreneurship, particularly in respect of the startups. RBI has proposed following regulatory changes for easing the cross-border transactions, particularly relating to the operations of the start-up enterprises, in consultation with the Government of India:-

1. To enable start-up enterprises, irrespective of the sector in which they are engaged and to receive foreign venture capital investment and also explicitly enabling transfer of shares from Foreign Venture Capital Investors to other residents or non-residents;
2. In case of transfer of ownership of a start-up enterprises, receipt of the consideration amount on a deferred basis as also enabling escrow arrangement or indemnity arrangement up to a period of 18 months;
3. To allow online submission of A2 forms for outward remittances on the basis of the form alone or with documents in order to upload or submit
4. Simplifying the process for dealing with delayed reporting of Foreign Direct Investment (FDI) related transactions.

RBI creates guidelines for startups

The Reserve Bank of India has created helpline for start-ups in India in order to offer guidance for undertaking cross-border transactions within the ambit of the regulatory framework. In this process the enterprises are expected to provide complete information to the Reserve Bank and mention the specific issues on which they need guidance from the Reserve Bank in relation to the Foreign Exchange Management regulations. Start-up enterprises usually undertake a wide range of cross-border transactions relating to investments. Cross-border transactions of resident Indians are subjected to the regulatory regime provided by the Foreign Exchange Management Act, 1999.

Introduction of 19 plans by Prime Minister

 Prime Minister Narendra Modi recently unveiled a 19-point action plan for start-up enterprises in India. He also announced a self-certification scheme related to nine labour and environment laws. He also said that there would be no inspection of the enterprises during the first three years of the launch.

1. Self-certification – Self-certification will help the Start Ups to reduce the regulatory liabilities. The self-certification will apply to laws including payment of gratuity, labour contract, provident fund management, water and air pollution acts.
2. Start-up India hub -An all-India hub will be created as a single contact point for start-ups in India, which will help the entrepreneurs to exchange knowledge and access financial aid.
3. Register through app – to make registration easy, online portals in the form of a mobile application will be launched. The app is scheduled to be launched on April 1.
4. Patent protection -A fast-track system for patent examination at lower costs is being conceptualized by the central government. This will help in promoting awareness and adoption of the Intellectual Property Rights (IPRs) by the start-up foundations.
5. Rs 10,000 Crore fund -The government will develop a fund with an initial corpus of Rs 2,500 Crore and a total corpus of Rs 10,000 Crore over four years, to support upcoming start-up enterprises. The Life Insurance Corporation of India will play a major role in developing this corpus.
6. National Credit Guarantee Trust Company – in order to support the flow of funds to start-ups a National Credit Guarantee Trust Company (NCGTC) is being conceptualized with a budget of Rs 500 Crore per year for the next four years
7. No Capital Gains Tax -At present, investments by venture capital funds are exempted from the Capital Gains Tax. The same policy is being implemented on primary-level investments in start-ups.
8. No Income Tax for three years – Start-ups shall not be required to pay Income Tax for three years. However this policy would revolutionize the pace with which start-ups would grow in the future.
9. Tax exemption for investments of higher value -In the case where the investment is of higher value than the market price, it will be exempted from paying tax
10. Building entrepreneurs -Innovation-related study plans for students in over 5 lakh schools. Besides, there will also be an annual incubator grand challenge to develop world class incubators.
11. Atal Innovation Mission -The Atal Innovation Mission will be launched to boost innovation and encourage talented youths.
12. Setting up incubators – A private-public partnership model is being considered for 35 new incubators and 31 innovation centers at national institutes.
13. Research parks – The government plans to set up seven new research parks, including six in the Indian Institute of Technology campuses and one in the Indian Institute of Science campus, with an investment of Rs 100 Crore each.
14. Entrepreneurship in biotechnology – The government shall establish five new biotech clusters, fifty new bio incubators, one hundred and fifty technology transfer offices and twenty bio-connect offices in the country.
15. Dedicated programmes in schools – The government shall in over 5 lakh schools introduce innovation-related programs for students.
16. Legal support – A panel of facilitators will provide legal support and assistance in submitting patent applications and other official documents.
17. Rebate – A rebate amount of 80 percent of the total value will be provided to the entrepreneurs on filing patent applications.
18. Easy rules – Norms of public procurement and rules of trading have been simplified for the start-ups.
19. Faster exit – If a start-up fails, the government will also assist the entrepreneurs to find suitable solutions for their problems. In the case of second failure, the government will provide an easy way out.

A  BETTER WAY AHEAD!!

 There is ample of prospective for technical transfers and/or alliances and foreign companies could look at joint ventures as well as sub-contracting arrangements with Indian companies, especially in the small and medium enterprises (SMEs) or may bring innovations by bringing start – ups. In addition to the above , the countries could join hands by way for incorporation of MOUs many sectors like infrastructure – development of  power, ports, telecommunications, roads, ship building & ship repair, petrochemicals, automobile ancillary, electrical & electronics, office equipment, banking & financial services, software as well as iron & steel. • Infrastructure development in India requires bulk investments which can be done by achieving best technical know-how, capital power which can actually help to accelerate growth in long-run. There is incredible scope for foreign entities to partake in Indian market mechanism. India has all the prospectiveto provide the investors better business environment for conducting their business operations and contribute towards growth & development in this Global world to both their host nation and home country.

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