Monday, April 20, 2015

SETTING UP BUSINESS IN INDIA WITH FOREIGN DIRECT INVESTMENT

India is one of fastest growing economies of the world as well as the most desired place for doing business and as a reason of which India is ranked among top 3 attractive destinations for business investments.

RECENT DEVELOPMENTS

Indian Government has taken many steps to liberalise the laws relating to the foreign investment in India to welcome foreign investors. Some of the most recent initiatives of Indian Government are as under:

-          100% FDI allowed in medical devices.
-          FDI cap in insurance and sub-activities increased from 26% to 49%.
-          Telecom sector is opened for 100% FDI.
-          100% FDI in single brand retail.
-          FDI in sectors like Commodity Exchanges, Stock Exchanges & Depositories, Power Exchanges, Petroleum refining by PSU’s courier Services is now made under Automatic Route from Government Route.
-          Removal of restriction in Tea Plantation sector.
-          FDI limit raised to 74% in Credit Information and 100% in Asset Reconstruction Companies.
-          FDI limit of 26% in Defence Sector raised to 100% under Government Approval Route, Foreign Portfolio Investment up to 24% permitted under automatic route. FDI beyond 49% is also allowed on a case to case basis with the approval of cabinet committee on Security
-          Construction, Operation and Maintenance of specified activities of Railway sector opened to 100% Foreign Direct Investment under automatic route.


ROUTES FOR FDI

1.       Automatic Route- No central government approval is required.
2.       Approval Route- Applications are considered by the Foreign Investment Promotion Board (FIPB).

Any Indian Company receiving FDI under either Automatic Route or Approval Route has to report the receipt of funds and allotment of shares against the same to RBI in prescribed form and time limit.


TYPES OF INVESTORS ALLOWED UNDER FDI ROUTE:

Individual
1.       Foreign Venture Capital Investors
2.       Pension/Provident Funds
3.       Financial Institutions
4.       Non-Resident Indian (NRI’s) / Persons of Indian Origin (PIO’s)

Company
1.       Foreign Trust
2.       Sovereign Wealth Funds


Foreign Institutional Investors
1.       Private Equity Funds
2.       Partnership / Proprietorship Firms
3.       Others


PROHIBITED SECTORS

1.       Lottery business
2.       Gambling and Betting including Casinos
3.       Chit Funds
4.       Nidhi Companies
5.       Trading in Transferrable Development Rights
6.       Real Estate Business (Other than construction development) or constructions of farm houses
7.       Manufacturing of Cigars, Cheroots, Cigarillos and Cigarettes of tobacco and of  tobacco substitutes
8.       Atomic Energy, Railway Transport (Other than as allowed specifically)
9.       Service like legal, book keeping, accounting and auditing.


SECTORS WITH CAPS

SECTOR
CAP
Petroleum Refining by PSU’s
49%
Teleports (setting up of up-linking HUBs/Teleports),Direct to Home (DTH), Cable Networks (Multi-system operators (MSOs) operating at national, state or district level and undertaking upgradation of networks towards digitalization and addressability), Mobile TV and Headend-in-the-Sky Broadcasting Service (HITS)
74%
Cable Networks
49%
FM Radio
26%
Uplinking of news and current affairs TV Channels
26%
Print Media dealing with news and current affairs
26%
Scheduled Air Transport
49%
Non-Scheduled Air Transport
74%
Ground Handling Services – Civil Aviation
74%
Satellites – Establishment and Operation
74%
Private Security Agencies
49%
Public Sector Banking
20%
Commodity Exchanges
49%
Credit Information Companies
74%
Infrastructure Companies in Securities Market
49%
Insurance and sub-activities
49%
Power Exchange
49%
Defence
49% (more than 49% with approval from Cabinet Committee)



SECTORS REQUIRING CENTRAL GOVERNEMENT APPROVAL

SECTOR
 INVESTMENT %
Tea sector including plantation
100
Mining and Mineral separation of titanium –bearing minerals and ores
100
Enterprise manufacturing items reserved for Small Scale Sector
100
Defence
49
Defence-With approval from Cabinet Committee for security
Above 49
Teleports, DTH, Cable Networks, Mobile TV, Headed-In-The-Sky (HITS)
Beyond 49 and upto 74
Uplinking and of news and current affairs channel
26
Uplinking and of non-news and current affairs TV channel
100
Terrestrial Broadcasting- FM Radio
26
Publication of facsimile edition of foreign news paper
100
Airports-Brownfields
Beyond 74
Non-scheduled air transport service
Beyond 49 and upto 74
Ground handling services
Beyond 49 and upto 74
Satellites
74
Private Securities agencies
49
Telecom
Beyond 49
Single Brand Retails
Beyond 49
Asset Reconstruction Company
Beyond 49 and upto 100
Banking Private Sector (other than WOS/Branches)
Beyond 49 and upto 74
Banking- Pubic Sector
20
Pharmaceuticals-brownfield
100

All other items not included in above are under automatic route.


BUSINESS STRUCTURES TO BRING IN FDI

Below mentioned form of business can be used to bring in the required FDI into India.

1.       Forming a Company in India
a.       Private Company
b.      Public Company

2.       Limited Liability Partnership
FDI in LLP is allowed only with Government approval in sectors with 100% FDI under Automatic Route

3.       Firm
a.       Sole Proprietorship Firm
b.      Partnership Firm

These structures falls under RBI approval. RBI decides on the application in consultation with Government of India.

4.       Foreign Entities
a.       Liaison Office, Branch Office or Project Office of foreign entities. FDI approvals are granted under Govt. and RBI route. Further, automatic route is available for Branch or Project office meeting certain conditions.


5.       Other Structures
Non-profit organizations etc. – Foreign investment in these structure is also subject to provisions of Foreign Contribution Regulation Act (FCRA)


STEPS INVOLVED IN BRINGING IN THE FDI

-Identify the required business structure

-Incorporation of structure with necessary licenses

-Take central Govt. approval for proposed FDI, if required

-Inflow of funds through eligible instruments

-Compliance with reporting requirements


REPATRIATION OF FUNDS

Dividend- Dividend is freely repatriable without any restrictions after TDS or Dividend Distribution Tax

Capital – AD –Category –I Bank can allow the repatriation of sale proceeds of securities to person outside India, if such securities are issued on repatriation basis after tax clearance certificate from Income Tax Dept. is obtained. Further, it is to be noted that investments in construction development sector is subject to lock-in period of 3 years.

Interest- Interest on fully, mandatorily and compulsory convertible debentures are freely repatriable, net of applicable taxes.



About author:
Dhanaji Shinde is a Practicing Company Secretary at Bangalore and can be reached at 9844494678 or 9663811124 or pcs.dhanaji.shinde@gmail.com













Source: Makeinindia 

No comments:

Post a Comment