India has been jumping the ranks in ease of “Doing Business”. It has jumped 30 ranks to be at number 100. It is one of the top 10 improvers and has implemented reforms in eight out of 10 doing business indicators which are tracked by world bank. Doing business indicators are not the sole determinants of choosing the destination, however, it certainly builds the confidence from worldwide investor in India as it reflects the commitment of government to reforms.
There are various ways in which the foreign company can do business in India. It can establish a Liaison office, branch office, a wholly owned subsidiary, a joint venture or it can work through distributors etc. The choice of entity is dependant on the various factors like type of business, type of investment and the objects. There are some forms which are suitable for short term business in India.
If an entity is looking for short term testing of Indian ground to check potential Indian markets it can enter as Liaison office, the licence of which is given for a period of three years with permission to do limited activities in India. Similarly, a foreign entity can also open a branch office in India subject to meeting the net worth criteria. Branch office is also permitted to conduct only few activities as specified in the regulation. A foreign entity can also work through agents etc in India. However, it may be noted that a foreign entity is taxed in India at 40% + applicable Surcharge (against domestic company where the Tax rate is 30% + Surcharge) and may need consideration by foreign entity.
If the foreign entity is looking for long term business operations in India, amongst all the choices, establishing a private limited company is the best option. Not only because of lower tax rate of domestic company but also because a private limited company is a separate legal entity capable of entering into contracts by itself. It will give the legal status to the company in India but also will bring trust worthiness in the Indian operations of foreign company.
The tax rate for a domestic company is 30% plus surcharge[1], education cess[2] and secondary and higher education cess[3] . The rate of taxation of foreign company is 40%.
Investment by Foreign entity in India is done as per the Foreign Direct Investment Policy laid down by Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, India. There are two routes in which investment can be made I,e. Automatic or approval depending on the sector in which the company wants to operate in India. Under Approval route the prior permission of Reserve Bank of India/ Government of India is required. Under Automatic route under post transaction intimation to Reserve Bank of India (“RBI”) through the Authorised dealer bank is required. There are no eligibility criteria for investment and most of the sector fall under Automatic route. Mostly all the forms filing to RBI is online.
Germany, Mauritius and Singapore are the few countries from which India receives most of the FDI. The quarterly fact sheet as updated by DIPP throws light on the quantum of FDI inflows for the quarter ending in June,17. Mauritius maintaining its top position contributes 34% of the total amount of FDI during the quarter followed by Singapore. India received 17% of the total FDI amounting to 57600 million USD from Singapore. There is significant amount of FDI received from Japan as well.
The main reasons of investment from countries like Singapore is the beneficial tax treaty (“Double taxation avoidance agreement/DTAA”) India has with them. Singapore is amongst one of the most preferred country to invest in India and also, it is not doubted as destination for hoarding black money like Mauritius.
Subject to satisfaction of Limitation of benefits clause, the India – Singapore treaty offers lot of tax advantage if the investment is structured through Singapore. Although the India – Singapore treaty have been revised via third protocol under which the right of taxation for capital gains arising in India have been restored to India. For shares in an Indian company that are acquired and disposed of within April 2017 to 31 March 2019, the capital gains arising on the sale will be taxed in India at 50% of the Indian tax rates.
A company needs to have a registered office address and needs to have minimum share capital of INR 1,00,000.
Once the company is incorporated it is required to take registration under various statutes in India like Income Tax Act, 1961, Good and services Act, 2017, Shop and Establishment Act, Profession Tax (as applicable). Mostly all registrations are online.
There are returns on periodic basis that are required to be filed.
Returns are usually monthly, Quarterly and Yearly like TDS return Income Tax Act, 1961 is filed quarterly, Return under Goods and Services Tax Act,2017 are filed monthly, Quarterly and Yearly etc.
Return of Income under Income Tax Return, 1961 is yearly however Consolidation of tax returns which is allowed in some countries like Italy is not allowed. Tax is required to be estimated on quarterly basis and is required to be paid in four instalments as Advance Tax.
The company is subjected to Annual Statutory Audit under Companies Act, 2013 and Tax Audit, if applicable under Income Tax Act, 1961. Also, if there are international transactions with the associated enterprises the company is also subject to Transfer Pricing Regulations which involves Transfer Pricing Documentation and Audit. India doesn’t have any foreign worker levy like Singapore.
Gone are the days when it use to take months to incorporate a company. Given the proper documentation, the company can now be opened in less than 7 days. With its newly digital drive government is striving to make maximum of the processes online. Our systems are changing.
World Bank has recognised. So will you.
[1] Surcharge: The amount of income-tax shall be increased by a surcharge at the rate of 7% of such tax, where total income exceeds one crore rupees but not exceeding ten crore rupees and at the rate of 12% of such tax, where total income exceeds ten crore rupees.
[2] Education Cess: The amount of income-tax and the applicable surcharge, shall be further increased by education cess calculated at the rate of two per cent of such income-tax and surcharge.
[3] Secondary and Higher Education Cess: The amount of income-tax and the applicable surcharge, shall be further increased by secondary and higher education cess calculated at the rate of one per cent of such income-tax and surcharge.
