Setting up a Company abroad by Indian Residents-Regulatory Requirements

CA Pratik Anand

With the advent of Globalization, more and more Indians are interested in doing business outside India. They want to set-up a branch office or a subsidiary abroad. There are multiple benefits of doing so such as cost reduction because they save on import duty, ease of doing business, building an international brand etc.

We are often asked this question whether an Indian Residents can set-up a Company abroad?

Let us first look at the ways in which an Indian Resident can remit the money for investment outside India.

1)      Liberalised Remittance scheme (LRS)

As per this Scheme, resident individuals may remit up to USD 125,000 per financial year for any permitted capital and current account transactions or a combination of both.

a)      What are some of the capital account transactions permitted under the scheme?

• Under the Scheme, resident individuals can acquire and hold shares or debt instruments or any other assets including property outside India, without prior approval of the Reserve Bank.

Q. Can remittances be made to acquire Joint Ventures abroad?

 A. With effect from August 05, 2013, this Scheme, can be used by Resident individuals to set up Joint Ventures (JV)/ Wholly Owned Subsidiaries (WOS) outside India for bonafide business activities within the limit of USD 125,000 subject to the terms & conditions stipulated in FEMA Notification No.263.

Fema Notification 263:

Acquisition or Setting up of a JV or WOS abroad by resident individual

A resident individual (single or in association with another resident individual or with an ‘Indian Party’ as defined in this Notification) satisfying the criteria as per Schedule V of this Notification, may make overseas direct investment in the equity shares and compulsorily convertible preference shares of a Joint Venture (JV) or Wholly Owned Subsidiary (WOS) outside India.”

Conditions to be followed are:

1. Resident individual is prohibited from making direct investment in a JV or WOS abroad which is engaged in the real estate business or banking business or in the business of financial services activity.

2. The JV or WOS abroad shall be engaged in bonafide business activity.

3. Resident individual is prohibited from making direct investment in a JV / WOS [set up or acquired abroad individually or in association with other resident individual and / or with an Indian party] located in the countries identified by the Financial Action Task Force (FATF) as “non co-operative countries and territories” as available on FATF website www.fatf-gafi.org or as notified by the Reserve Bank.

4. The resident individual shall not be on the Reserve Bank’s Exporters Caution List or List of defaulters to the banking system or under investigation by any investigation / enforcement agency or regulatory body.

5. At the time of investments, the permissible ceiling shall be within the overall ceiling prescribed for the resident individual under Liberalised Remittance Scheme as prescribed by the Reserve Bank from time to time.

[Explanation: The investment made out of the balances held in EEFC / RFC account shall also be restricted to the limit prescribed under LRS.]

6. The JV or WOS, to be acquired / set up by a resident individual under this Schedule, shall be an operating entity only and no step down subsidiary is allowed to be acquired or set up by the JV or WOS.

7. For the purpose of making investment under this Schedule, the valuation shall be as per Regulation 6(6)(a) of this Notification.

8. The financial commitment by a resident individual to / on behalf of the JV or WOS, other than the overseas direct investments as defined under Regulation 2(e) read with Regulation 20A of this Notification, is prohibited.

9. ‘Indian party’ means a company incorporated in India or a body created under an Act of Parliament or a partnership firm registered under the Indian Partnership Act, 1932 making investment in a Joint Venture or Wholly Owned Subsidiary abroad, and includes any other entity in India as may be notified by the Reserve Bank.

Provided that when more than one such company, body or entity make an investment in the foreign entity, all such companies or bodies or entities shall together constitute the ‘Indian party’

Therefore, It is clear that Resident Individuals can remit money outside India for setting up either a joint venture or a wholly owned subsidiary abroad under the LRS.

Points to be noted:

Recently, the RBI has permitted the purchase of immovable property abroad under the LRS. Therefore, a person can now not only set-up a Company abroad but also purchase an immovable property abroad for setting up the office of such a business under the LRS within a total limit of USD 125000 per financial year.

2)      Overseas Direct Investment

The Second way by which Residents can set-up business abroad is by way of Overseas Direct Investment.

• What is overseas Direct Investment?

This can be understood by reading the definition of Overseas Direct Investment on the RBI Website which is as follows:

Direct investment outside India means investments, either under the Automatic Route or the Approval Route, by way of contribution to the capital or subscription to the Memorandum of a foreign entity or by way of purchase of existing shares of a foreign entity either by market purchase or private placement or through stock exchange, signifying a long-term interest in the foreign entity (JV or WOS).

It means that direct investment outside India is either by way subscribing to the capital of a New Company set-up outside India or by purchase of shares of an existing Company outside India.

Here also the entity to be set-up will be either a Joint venture or a wholly owned Subsidiary.

Q. Mention the ways in which Overseas Direct Investment outside India can be made.

A . Direct Investment outside India can be made either by way of the Automatic Route or the Approval Route.

Automatic Route

• Under the Automatic Route, an Indian Party does not require any prior approval from the Reserve Bank for making overseas direct investments in a JV/WOS abroad.
• The Indian Party should approach an Authorized Dealer Category I bank with an application in Form ODI and the prescribed enclosures/documents for affecting the remittances towards such investments. However, in case of investment in the financial services sector, prior approval is required from the regulatory authority concerned, both in India and abroad.

Q- Who can make investment under the Automatic route?

A.

• An ‘Indian Party’ is eligible to make overseas direct investment under the Automatic Route.
• An Indian Party is a company incorporated in India or a body created under an Act of Parliament or a partnership firm registered under the Indian Partnership Act 1932 or a Limited Liability Partnership (LLP) incorporated under the LLP Act, 2008 and any other entity in India as may be notified by the Reserve Bank. When more than one such company, body or entity makes investment in the foreign JV / WOS, such combination will also form an “Indian Party”.
• Therefore, the Investment under the overseas direct investment automatic route can only be made by an Indian Company, a registered partnership firm, LLP or a Body Corporate set-up under an Act of parliament.

Q. – Can overseas direct investment be made in any activity?

A. An Indian Party can make overseas direct investment in any bonafide activity (except those that are specifically prohibited. However, for undertaking activities in the financial services sector, certain additional conditions as specified in Regulation 7 of the Notification ibid should be adhered to.

Q. –What are the prohibited activities for overseas direct investment?

A.

• Real estate as defined in Regulation 2(p) of the Notification and banking business are the prohibited sectors for overseas direct investment.
• However, Indian banks operating in India can set up JVs/WOSs abroad provided they obtain clearance under the Banking Regulation Act, 1949, from the Department of Banking Operations and Development (DBOD), CO, RBI.
• An overseas JV / WOS, having direct or indirect equity participation by an Indian party, shall not offer financial products linked to Indian Rupee (e.g. non-deliverable trades involving foreign currency, rupee exchange rates, stock indices linked to Indian market, etc.) without the specific approval of the Reserve Bank. Any incidence of such product facilitation would be treated as a contravention of the extant FEMA regulations and would consequently attract action under the relevant provisions of FEMA, 1999.

Q. What are the limits and requirements for overseas direct investment to be made under the Automatic Route?

A. The criteria for overseas direct investment under the Automatic Route are as under:

1. The Indian Party can invest up to the prescribed limit of its net worth (as per the last audited Balance Sheet) in JV/WOS for any bonafide activity permitted as per the law of the host country.
2. The Indian Party is not on the Reserve Bank’s exporters’ caution list / list of defaulters to the banking system published/ circulated by the Credit Information Bureau of India Ltd. (CIBIL) /RBI or any other credit information company as approved by the Reserve Bank or under investigation by the Directorate of Enforcement or any investigative agency or regulatory authority; and
3. The Indian Party routes all the transactions relating to the investment in a JV/WOS through only one branch of an authorised dealer to be designated by the Indian Party.
4. The prescribed limit is 100% of the net-worth of the Indian Party.

Q. What is the procedure to be followed by an Indian party to make overseas direct investment in a JV/WOS under the Automatic Route?

A. The Indian Party intending to make overseas direct investment under the automatic route is required to fill up form ODI duly supported by the documents listed therein, i.e., certified copy of the Board Resolution, Statutory Auditors certificate and Valuation report (in case of acquisition of an existing company) and approach an Authorized Dealer (designated Authorized Dealer) for making the investment/remittance.

Therefore, to summarise the Investment outside India under the automatic route can be made to set-up a new company abroad (JV or WOS). This can only be done by an Indian Company set-up under the Companies Act’1956 or a registered partnership firm or a Body Corporate set-up by an Act of Parliament.

Approval Route

• Proposals not covered by the conditions under the automatic route require prior approval of the Reserve Bank for which a specific application in Form ODI with the documents prescribed therein is required to be made through the Authorized Dealer Category – I banks. Some of the proposals which require prior approval are:
• i) Overseas Investments in the energy and natural resources sector exceeding the prescribed limit of the net worth of the Indian companies as on the date of the last audited balance sheet;
• ii) Investments in Overseas Unincorporated entities in the oil sector by resident corporates exceeding the prescribed limit of their net worth as on the date of the last audited balance sheet, provided the proposal has been approved by the competent authority and is duly supported by a certified copy of the Board Resolution approving such investment. However, Navaratna Public Sector Undertakings, ONGC Videsh Ltd and Oil India Ltd are allowed to invest in overseas unincorporated / incorporated entities in oil sector (i.e. for exploration and drilling for oil and natural gas, etc.), which are duly approved by the Government of India, without any limits, under the automatic route;
• iii) Overseas Investments by proprietorship concerns and unregistered partnership firms satisfying certain eligibility criteria;
• iv) Investments by Registered Trusts / Societies (satisfying certain eligibility criteria) engaged in the manufacturing / educational / hospital sector in the same sector in a JV / WOS outside India;

Points To remember:

• Requests under the approval route are considered by taking into account, inter alia, the prima facie viability of the JV / WOS outside India, likely contribution to external trade and other benefits that may accrue to India through such investment, financial position and business track record of the Indian party and the foreign JV / WOS, experience and expertise of the Indian party in the same or related line of activity of the JV / WOS outside India, etc.
• Applications in Form ODI- Part I may be forwarded through the designated Authorized Dealer Category – I bank to:

The Chief General Manager
Reserve Bank of India
Foreign Exchange Department
Overseas Investment Division
Central Office
Amar Building, 5th Floor
Mumbai 400 001

After Establishment Obligations

   A.    An Indian Party will have to comply with the following: –

        i.            receive share certificates or any other documentary evidence of investment in the foreign JV / WOS as an evidence of investment and submit the same to the designated AD within 6 months;

      ii.            repatriate to India, all dues receivable from the foreign JV / WOS, like dividend, royalty, technical fees etc.;

    iii.            submit to the Reserve Bank through the designated Authorized Dealer, every year, an Annual Performance Report in Part III of Form ODI in respect of each JV or WOS outside India set up or acquired by the Indian party;

    iv.            report the details of the decisions taken by a JV/WOS regarding diversification of its activities /setting up of step down subsidiaries/alteration in its share holding pattern within 30 days of the approval of those decisions by the competent authority concerned of such JV/WOS in terms of the local laws of the host country. These are also to be included in the relevant Annual Performance Report; and

      v.            in case of disinvestment, sale proceeds of shares/securities shall be repatriated to India immediately on receipt thereof and in any case not later than 90 days from the date of sale of the shares /securities and documentary evidence to this effect shall be submitted to the Reserve Bank through the designated Authorised Dealer.

Is it mandatory to furnish Annual Performance Reports (APR) of the overseas JV/WOS based on its audited financial statements?

A. Where the law of the host country does not mandatorily require auditing of the books of accounts of JV / WOS, the Annual Performance Report (APR) may be submitted by the Indian party based on the un-audited annual accounts of the JV / WOS provided:

a. The Statutory Auditors of the Indian party certifies that ‘The un-audited annual accounts of the JV / WOS reflect the true and fair picture of the affairs of the JV / WOS’ and

b. That the un-audited annual accounts of the JV / WOS has been adopted and ratified by the Board of the Indian party.

What are the penalties for non-submission of Annual Performance Reports (APRs)?

Delayed submission/ non-submission of APRs entail penal measures, as prescribed under FEMA 1999, against the defaulting Indian Party.

Points to remember:

• An annual return on Foreign Liabilities and Assets (FLA) is also required to be submitted directly by all the Indian companies which have received FDI (foreign direct investment) and/or made FDI abroad (i.e. overseas investment) in the previous year(s) including the current year i.e. who holds foreign Assets or Liabilities in their Balance Sheets.
• FLA return is mandatory under FEMA 1999 and companies are required to submit the same based on audited/ unaudited account by July 15 every year.
• If the Partnership firms, Branches or Trustees have any outward FDI outstanding as on end-March of the reporting year, then they are required to send a request mailto: surveyfla @ rbi.org.in  to get a dummy CIN number which will enable them to file the Excel based FLA Return. If any entity has already got the dummy CIN number from the previous survey, they should use the same CIN number in the current survey also. (Therefore Return of Foreign Assets and Liabilities is also mandatory for Registered Partnership Firms and trustees etc. also).

(The author is a CA in practice at Delhi and for any queries and assistances on the above especially APR and return of Foreign Assets & Liabilities can be contacted at: E-mail: [email protected] or on Mobile: +91-9953199493.)

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