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국제법률연구원(ILRI)은 귀사의 성공적인 해외진출을 돕기 위해 현지변호사들과 자체 개발한 온라인 법인설립서비스인 "오이오스(OIOS)" 를 제공하고 있습니다.
Taste different solution. 색다른 해결책을 맛 보세요.
저희는 52개국의 현지 로펌과 제휴한 해외진출지원 서비스(국제법률정보, 해외법인설립, 국제계약검토, 해외기업인수합병, 현지법인운영대행, 번역통역 등)를 지원을 하고 있습니다. (참고. http://www.ilri.co.kr/establishment.htm )
상담에 있어서,
본원의 업무사례를 볼 때 전화 보다 이메일 상담이 더 효과적이어서 이메일 info@ilri.co.kr 로 무료상담을 해 드리고 있습니다.
전화상담은 10만원의 상담료가 청구되오니 꼭 참고해 주세요.
국제법률연구원 International Legal Research Institute - Korea.
Tel. [+82] (0)10-5295-0621, (0)2-557-3476 / Fax. (0)303-0080-7001
Website. www.ilri.co.kr
Email. info@ilri.co.kr
아래에 인도 현지의 회사설립(법인설립)과 관련된 정보와 주의사항을 안내합니다.
ESTABLISHMENT OF PLACE OF BUSINESS BY A FOREIGN COMPANY IN INDIA
A. DEFINITIONS:
“Foreign Company” means a body corporate incorporated outside India, and includes a firm or other association of individuals.
B. OPTIONS AVAILABLE TO A FOREIGN COMPANY TO HAVE A JOINT VENTURE COMPANY :
a) A Joint Venture company incorporated in India with any Percentage of Shareholding of the Foreign Company. (Percentage of Shareholding should be as per the Indian Law for the time being in force for the type of business the Joint Venture Company is proposed to carry on). If as per the law of India, 100% Foreign Direct Investment is possible in a particular industry then in that case it will be wholly owned subsidiary of the foreign company.
C. PERMITTED ACTIVITIES FOR A JOINT VENTURE (JV) / WHOLLY OWNED SUBSIDIARY COMPANY
Since it is going to be an Indian company all the activities which is allowed to an Indian Company, will be allowed to the Joint Venture / Wholly Owned Subsidiary Company, subject to Shareholding Cap (i.e. Percentage of Foreign Company Shareholding in the Joint Venture / Wholly Owned Subsidiary Company), if any, applicable to that kind of business activities as per the Foreign business policy of India.
Import the material from outside India and then Distribute and sale in India
In India Foreign Investment in Retail trading is not allowed, However a foreign company can invest in an Indian Company which import products from outside India and then do only wholesale and bulk sale in India.
D. LEGAL FORMALITIES TO BE COMPLIED WITH FOR THE ABOVE PROPOSED ACTIVITIES BY THE JOINT VENTURE / SUBSIDIARY COMPANY INCORPORATED BY A FOREIGN COMPANY IN INDIA
I Legal formalities with Foreign Investment Promotion Board (FIPB) or Secretariat of Industrial Assistance (SIA)
a. An application is required to be filed with the FIPB for the approval to incorporate a Subsidiary / JV company in India with the object to import the goods either from parent company or otherwise and sale in the Indian Market.
b. Procedure and details required for the application to FIPB
An application is required to be made to FIPB with the detailed plan and proposed activities of the Indian company and the details of the investing company.
Details required for the application are as follows :
a) Proposed Activities of the Indian Company
b) Proposed Investment and shareholding pattern
c) Details of the Products to be dealt and the activities to be carried on
d) Details of the Investment to be made in India under various head like Land , Building , plant & machinery etc.,
e) Proposed Employment possibilities in India
f) Details for the Promoters with their background
g) Proposed Outflow and inflow of Foreign Exchange including value of the import per year for next 5 years.
c. Time Frame
Under normal circumstances the application is disposed within 4-6 weeks by the FIPB.
d. Statutory Fees
There is no statutory fees for the filing application with the FIPB
II. Legal Formalities with ROC
A) Incorporate a Private Limited Company as per the provisions of Companies Act, (Please see Annexure – B for procedure and statutory fees)
III. Legal Formalities with RBI
As per the provisions of the Foreign Exchange Management Act:
(1) A person resident outside India (other than a citizen of Bangladesh or Pakistan or Sri Lanka) or an entity incorporated outside India (other than an entity in Bangladesh or Pakistan), may purchase shares or convertible debentures of an Indian company under foreign Direct Investment Scheme, subject to the terms and conditions as may be specified from time to time. (Please see Annexure – A)
Report by the Indian company.
(1) an Indian company issuing shares or convertible debentures in accordance with these Regulations shall submit to Reserve Bank –
(A) not later than 30 days from the date of receipt of the amount of consideration, a report indicating:
(i) Name and address of the foreign investors
(ii) Date of receipt of funds and their rupee equivalent
(iii) Name and address of the authorised dealer through whom the funds have been received, and
(iv) Details of the Government approval, if any;
(B) not later than 30 days from the date of issue shares, a report in Form FC-GPR together with -
(i) a certificate from the company secretary of the company accepting investment from persons resident outside India Certifying that -
(a) all the requirements of the Companies Act, 1956 have been complied with;
(b) terms and conditions of the Government approval, if any have been complied with,
(c) the company is eligible to issue shares under these Regulations; and
(d) the company has all original certificates issued by authorised dealers in India evidencing receipt of amount of consideration in accordance with paragraph 9;
(ii) a certificate from Statutory Auditors or Chartered Accountant indicating the manner of arrival at the price of the shares issued to the persons resident outside India.
IV Formalities with other local authorities
Apart from the formalities with the RBI and ROC, there are small formalities with few other local authorities for obtaining various local licenses depending upon the place where the Indian Company will have its place of business like Income Tax Department, Trade License, Service Tax if applicable etc.
Statutory Fees
The details of the statutory fees and other details will be provided once the place of business of the Indian Company is available with us.
Time Frame
Normal time frame to obtain various local licenses is about 2-4 weeks fro the date of the incorporation of the Indian Company.
ANNEXURE – A
Foreign Direct Investment Scheme for Non Resident
1. Purchase by a person resident outside India of equity/preference/convertible preference shares and convertible debentures issued by an Indian company.
(1) A person resident outside India referred to in above, may purchase shares or convertible debenture issued by an Indian company up to the extent and subject to the terms and conditions set out below.
Provided further that in case the person purchasing the shares under this scheme proposes to be collaborator or proposes to acquire the entire share holding of a new Indian Company, he should obtain a prior permission of the Central Government if he has a previous venture or tie – up in India through investment in shares or debentures or a technical collaboration or a trade mark agreement or investment by whatever name called in the same field or allied field in which the Indian company issuing the shares is engaged.
Automatic route of Reserve Bank for Issue of shares by an Indian company
(1) An Indian company which is not engaged to any activity, or in manufacturing of item as prescribed by the regulation, may issue shares or convertible debentures to a person resident outside India, upto the extent specified in that regulation, subject to compliance with the provisions of the Industrial Policy and Procedures as notified by Secretariat for Industrial assistance (SIA) in the Ministry of Commerce and Industry, Government of India, from time to time.
Provided that:
(i) the activity of the issuer company does not require an industrial license under the provisions of the Industrial (Development & regulation) Act, 1951 or under the locational policy notified by Government of India under the Industrial Policy of 1991 as amended from time to time.
(ii) the shares or convertible debentures are not being issued by the Indian company with a view to acquiring existing shares of any Indian company.
Mode of payment for shares issued to person resident outside India
A company in India issuing shares or convertible debentures under this Schedule to a person resident outside India shall receive the amount of consideration for such shares –
(i) by inward remittance through normal banking channels, or
(iii) by debit to NRE/FCNR account of the person concerned maintained with an authorised dealer/authorised bank.
Note :
However in your case automatic approval route will not be applicable since sale and distribution of imported goods does not fall under the automatic approval route. Therefore approval from FIPB as mentioned will be required in your case. After approval from the FIPB the formalities with RBI will follow.
ANNEXURE - B
PROCEDURE FOR THE INCORPORATION OF A INDIAN COMPANY (A PRIVATE LIMITED)
FORMALITIES WITH THE REGSITRAR OF COMPANIES
Submission of application for name availability
An application should be submitted in Form No.1A to the Registrar of Companies to ascertain the availability of name together with the stipulated filing fees of Rs.500 (USD15). The application should mention 4 or less names, in order of preference alongwith the name of the promoters and directors of the company (Atleast name of the two Directors required with their personal details)
Document and Details required
a) Board resolution of the Investing company authorizing the investment in the Indian company along with the authorization to the person signing the documents on behalf of the investing company.
b) No Objection Letter from the Investing company in case name in similar to the name of the Investing company
c) Consent of the Directors to act as the director of the Indian company.
d) Details of the proposed activities of the Indian Company.
Approval of name by Registrar of Companies
The Registrar shall verify the application and communicate his decision regarding availability of name within 14 days. The name approval shall be valid for a period of six months and formalities regarding registration should be completed within that period.
Minimum Share capital of the company
Minimum share capital of an Indian Private Limited company is Rs.100000/-, however, it can be increased by the Registrar of Companies (ROC) depending upon the name sought.
Step for incorporation
On receipt of name approval from the Registrar of Companies, the following steps should be taken for incorporation of the company :
A) Drafting of Memorandum and Articles of Association. The draft Memorandum and Articles of Association of the company should be prepared.
B) Submission of documents – Within 6 months from the date of intimation of name clearance by the Registrar of Companies, an application should be submitted to the Registrar of Companies for registration of the company enclosing the following documents:
• Declaration of compliance in Form No.1 duly signed by an advocate of the Supreme Court or of the High Court or an attorney or pleader entitled to appear before a High Court or a secretary or Chartered Accountant in whole time practice in India who is engaged in the formation of the company.
• Situation of the registered office of the company in Form No.18, this form may also be filed within 30 days of incorporation of the company.
• Particulars of Directors, Manager and Secretary in Form No.32, this form should be filed in duplicate and may also be filed within 30 days of incorporation of the company.
• 1 copies of the duly signed and stamped memorandum and articles of association of the company,
• Original letter received from the Registrar of Companies intimating availability of name;
• Letter of authority on a non-judicial stamp paper, signed by all subscribers to the memorandum authorizing a person to carry out alteration in the documents submitted to the Registrar of Companies;
• Letter of authority on a non-judicial stamp paper duly signed by all subscribers, in favour of the authorised person to collect the certificate of incorporation from the Registrar of Companies;
• Demand Draft towards registration fees as mentioned below
Statutory Fees
The statutory fees for the incorporation of the Indian Company depends upon the Authorized Share Capital of the company
Table of the Statutory Fees
SL.No.
Authorized Capital Filing Fees
1. First Rs. 100000/- Rs.4000
2. From Rs.100001 to Rs.500000/- Rs.300 / Rs.10000/-
3. From Rs.500001 to Rs.5000000/- Rs.200 / Rs.10000/-
4. From Rs.5000001 to Rs.10000000/- Rs.100/ Rs.10000/-
5. Above Rs.10000000/- Rs.50 / Rs.10000/-
Apart from the above statutory Fees another Rs. 2500/- (USD 60) for stamping of documents and other statutory fees will be required to be paid.
C) Certification of Incorporation – The Registrar of Companies shall verify the documents and suggest modifications wherever required. The authorised person should duly carry out such modifications. Thereafter, the Registrar, on being satisfied that all the requirements for registration of the company as laid down under the Act and the rules made thereunder have been duly complied with shall certify under his hand that the company is incorporated and that the company is limited and issue a certificate of incorporation to the company. On the issue of the certificate of incorporation, the company shall come into being as a separate entity from the date specified therein.
Time Frame for Incorporation of the company
Normally it takes about 2-3 Weeks to complete the whole incorporation procedure.
VISA RELATED PROVISIONS FOR THE FOREIGN NATIONALS
A foreign National coming to India (For Business Purpose) can have the below mentioned type of Visas for their stay in India depending on the during and purpose of visit in India.
SL. No.
Type of Visa Period for which granted Entry Documents required with application Extendable In India?
1. Tourist 180 days Multiple Possible
---- No.
2. Transit 15 days Single / Double Return & Onward journey Ticket
No.
3. Employment 1 year / Period of Contract Multiple Proof of Employment (appointment document) terms and conditions
Yes
4. Business 5 years Multiple Documents to proof bonafide purpose (Company’s Letter etc)
Yes
Following documents are and requirement for submission of Application for visa in India:
1. ”Visa application Form”
a) Visa application form should filled in legibly and clearly, in bold (capital) letters in black/blue ink only. Incomplete and illegible applications may not be processed.
b) Name and other relevant particulars should be filled in as per details in the passport in expanded form.
2. Passport, it should have a minimum validity of six months on the date of application with at least two blank pages.
3. Photographs; 2 latest identical passport size photographs (black/white or color) depicting front pose against light background
4. Supporting documents, if the visa being applied for is other than a Tourist Visa, the visa application should be accompanied with supporting documents on type of visa applied for.
5. Visa Fee, Please see ”Fee Schedule” for the amount of fee.
Note
a) Kindly note that the validity of the visa starts from the date of issue and not the date of entry into India).
b) BUSINESS VISA: Valid for six month or one/more years with multiple entries. However, the period of stay in India (for each visit) under this category is limited to six months only. A letter from the sponsoring organization indicating nature of applicant’s business, probable duration of stay, validity of visa, places and organizations to be visited and also a guarantee to meet maintenance expenses etc. should accompany the application. Business visa valid for ten years with multiple entries is available to foreign businessmen who have set up or intend to set up joint ventures in India.
c) EMPLOYMENT VISA: An appointment letter, contract letter, applicant’s resume and proof that the organization is registered in India are required. Duration of visa would depend on the period of the contract.
Requirement of Compulsory Registration
If Visa is for more than 180 days, registration with the Foreigners Registration Officer is compulsory within 14 days of the arrival in India.
Registration formalities for foreigners visiting India on Long Term Visa
List of documents required at the time of registration with the Foreigners Registration Officer.
(i) Photocopy of the passport and initial visa.
(ii) Four photographs of the applicant.
(iii) Details of residence in India.
(iv) HIV test report from one of the WHO recognized institutions from people in the age group of 15 to 60 years, if the foreigner is visiting India on a visa for more than one year.
(v) Copy of the marriage certificate in case of those seeking extension of stay on grounds of being married to an Indian national.
(vi) Two copies of the approval of Government of India in case of a joint venture or a collaboration.
(vii) Copy of permission from the RBI in case of business/joint venture etc.
(viii) Terms and conditions of appointments and copy of contract or agreements, in case of employment visa.
(ix) Undertaking (in the format given below) from the concerned Indian company on the following lines in case of employment/business visa:-
FORMAT OF UNDERTAKING
We take full responsibility for the activities and conduct of Mr./Mrs. ___________________ national of ____________ during his/her stay in India. If anything adverse comes to notice during this period, we undertake to repatriate him/her on our cost.
Date: Signature of competent authority
Seal: (of the Company)
Time Frame to obtain VISA
Depending on the type of VISA applied, it takes about 2-4 weeks to obtain the VISA in India from the date of filing the complete Application Form alongwith all necessary documents and Visa Fee.
SCHEDULE OF CHARGES
SL. No.
Particulars Fees / Charges
1. We will charge a Lump sum fees of USD 2500 for following below mentioned work :
i) FIPB Approval
ii) Company Incorporation
iii) RBI Intimation and Clearances for Equity participation
iv) Local Registrations (Income Tax, Sales Tax, Import Export Code, trade License etc)
(Please refer Note 1)
a Lump sum fees of USD 2500
2. Retainer Fees after the above work (Please refer note 2) USD 500 per month
3. Any other Matter USD50 per hour
Notes
1. Above fees is only for the initial proposal and in case there is any extension or expansion after the initial approval then that will be charged separately as per the below schedule. Further please be informed that in case External Commercial Borrowings are involved apart from the equity participation then the same will be charged separately.
2. The retainer fees is for the day to day legal requirement after the initial incorporation of the company with regard to the various legal compliances and does not include any work of non recurring nature.
3. Above Fees is excluding Out of Pocket Expenses and Statutory Fees, which will be charged at actual. (Out of Pocket Expenses for the work as mentioned in point 1 will be limited to USD 500)
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