Policy on Foreign Direct Investment
India has among the most liberal and transparent policies on FDI among the emerging economies. FDI up to 100% is allowed under the automatic route in all activities/sectors.
Most of the sectors fall under the automatic route for FDI. In these sectors, investment could be made without approval of the central government. The sectors that are not in the automatic route, investment requires prior approval of the Central Government. The approval in granted by Foreign Investment Promotion Board (FIPB). After the grant of approval for FDI by FIPB or for the sectors falling under automatic route, FDI could take place after taking necessary regulatory approvals form the state governments and local authorities for construction of building, water, environmental clearance, etc.
All Press Notes of Department of Industrial Policy and Promotion that provides details about FDI policy are available at www.dipp.nic.in.
FDI policy is also notified by Reserve Bank of India (RBI) under Foreign Exchange Management Act (FEMA) and could be seen at https://www.rbi.org.in
With progressive liberalization and deregulation of the economy, industrial license is required in very few cases. Industrial licenses are regulated under the Industries (Development and Regulation) Act 1951. At present, industrial license is required only for the following: -
» Industries retained under compulsory licensing
» Manufacture of items reserved for small scale sector by larger units
» When the proposed location attracts locational restriction
The following industries require compulsory license: -
» Alcoholics drinks
» Cigarettes and tobacco products
» Electronic aerospace and defense equipment
» Hazardous chemicals such as hydrocyanic acid, phosgene, isocynates and di-isocynates of hydro carbon and derivatives.
Procedure for obtaining an industrial license:
Industrial license is granted by the Secretariat for Industrial Assistance in Department of Industrial Policy and Promotion, Government of India. Application for industrial license is required to be submitted in Form FC-IL to Department of Industrial Policy and Promotion.
Entrepreneurs are required to obtain Statutory clearances, relating to Pollution Control and Environment as may be necessary, for setting up an industrial project. Setting up industries in certain locations considered ecologically fragile (e.g. Aravalli Range, coastal areas, Doon Valley, Dahanu etc.) are guided by separate guidelines issues by the Ministry of Environment and Forests. Other approvals/clearances at State level
Land, Water, Electricity, Registrations etc. For further details please refer the website of Ministry of Environment, Forest and Climate Change http://envfor.nic.in
India provides for core labour standards of ILO for welfare of workers and to protect their interests. India has a number of labour laws addressing various issues such as resolution of industrial disputes, working conditions, labour compensation, insurance, child labour, equal remuneration etc. Labour is a subject in the concurrent list of the Indian Constitution and is therefore in the jurisdiction of both central and state governments. Both central and state governments have enacted laws on labour issues. Central laws grant powers to officers under central government in some cases and to the officers of the state governments in some cases.
Website of Ministry of Labour and Employment, Government of India is http://labour.nic.in
The main central laws dealing with labor issues are given below: -
» Workmen's Compensation Act 1923
» Minimum Wages Act 1948
» Payment of Wages Act 1936
» Industrial Disputes Act 1947
» Employees Provident Fund and Miscellaneous Provisions Act 1952
» Payment of Bonus Act 1965 Payment of Gratuity Act 1972
» Maternity Benefit Act 1961
» Industrial Employment (Standing orders) Act 1946
Special Economic Zones (SEZ)
The Foreign Trade Policy of Government of India provides for setting up of Special Economic Zones (SEZ) in the country with a view to provide an internationally competitive hassle free environment for exports. Units may be set up in SEZ for manufacture of goods and rendering of services. The units in SEZs have to be a net foreign exchange earner but they are not subjected to any pre-determined value addition or minimum export performance requirements. Sales in the domestic tariff area by SEZ units shall be subject to payment of full custom duty and import policy inflows.
SEZs could be set up in public, private, joint sector or by State governments. 100% FDI is allowed in setting up of SEZs. The government of India has also converted existing Export Processing Zones into SEZs.
The minimum size of the SEZs shall be 1000 hectares except in product specific and port/airport based SEZs. Approval for setting up of new SEZs is given by Department of Commerce, Government of India.
For setting up units in SEZs, all approvals are given by a Committee headed by Development Commissioner of the concerned SEZ. For setting up a unit in SEZ, application in prescribed format should be submitted to the development Commissioner.
Detailed policy applicable to SEZ units is given in Appendix 14-II of Handbook of Procedures Vol-I of Director General of Foreign Trade (DGFT).
For more details, please go to the website of SEZs maintained by Department of Commerce, Government of India at www.sezindia.nic.in.
Incorporation of Business Entity
A foreign company planning to set up business operations in India has the following options to set up a business entity:-
» As an incorporated entity under the Companies Act 1956 through JVs or wholly owned subsidiaries
» As an unincorporated entity through liaison office/representative office or project office or branch office of a foreign company. Such offices can undertake activities permitted under the Foreign Exchange Management (establishment in India of branch office of other place of business) Regulations 2000.
Incorporation of a Company
Incorporation of a company in India is governed by the Companies Act 1956. A company could be a private limited company or a public limited company. A private limited company is one that through its Articles restricts the rights to transfer its shares, limits the number of its members to 50, prohibits any invitation to the public to subscribe for any shares in the company and prohibits any invitation or acceptance of deposits from other than its members.
A public company is a company, which is not a private company.
For registration and incorporation of a company, an application has been filed with Registrar of companies. Application for registration of a company accompanied by the selected names, memorandum of association and articles of association and other necessary documents is to be filed with the Registrar of companies of the State in which the company is proposed to incorporated.Upon compliance with all requirements, the Registrar will register the company and issue a certificate of incorporation of company that would bring the company into existence as a legal entity. Once the company has been duly registered and incorporated as an Indian company, it is subject to Indian laws and regulations as applicable to other domestic Indian companies.
For further details please visit the website of Ministry of Corporate Affairs http://www.mca.gov.in/
Setting up Liaison /Representative /Branch/Project Office
Liaison Office/Representative Office:
A Liaison Office could be established with the approval of Reserve Bank of India. The role of Liaison Office is limited to collection of information, promotion of exports/imports and facilitate technical/financial collaborations.
Liaison office cannot undertake any commercial activity directly or indirectly.
Foreign companies planning to execute specific projects in India can set up a temporary project/site offices in India for carrying out activities only relating to that project. RBI has now granted general permission to foreign entities to establish project offices subject to specified conditions.
Foreign companies engaged in manufacturing and trading activities abroad are allowed to set up branch offices in India for the purposes of export/import of goods, rendering professional or consultancies services, R&D, promoting technical or financial collaborations, representing the parent company, acting as buying/selling agents, rendering services in IT and development of software, rendering technical support to the products supplied by the parent/group companies, foreign airline/shipping companies. Branch offices could be established with the approval of RBI and may remit outside India profit of the branch, subject to RBI guidelines after payment of applicable Indian taxes.
Procedure for establishing Liaison Office/Project Office/Branch Office
Application for setting up these offices may be submitted to Chief General Manger, Exchange Control Department (Foreign Investment Division), RBI, Central Office, Mumbai. The details are available at https://www.rbi.org.in
Intellectual Property Rights
India provides protection to Intellectual Property Rights in accordance with its obligations under the TRIPS Agreement of the WTO. The importance of intellectual property in India is well established at all levels- statutory, administrative and judicial.
India has well-established administrative mechanism for enforcement of Intellectual Property Rights. Police officers are empowered to take action against the infringement of IPRs in case of pirated and counterfeit products.
Cases of infringement of IPRs are tried in the judicial courts. Indian Intellectual Property Rights Laws also provide for appeals in the judicial courts of the administrative decisions relating to Intellectual Property Rights.
The Intellectual Property Rights protected under various statues in India are as follows:-
» Copyrights and related rights
» Geographical indications
» Plant varieties
» Lay out designs of integrated circuits
Detailed information about the Indian Patents Act is available at the website of Controller General of Patents, Designs and Trademarks at http://ipindia.nic.in/ipr/patent/patents.htm
The Patents Act 1970 http://ipindia.nic.in/ipr/patent/patAct1970-3-99.html
The Patents (Amendment) Act 1999 http://ipindia.nic.in/ipr/patent/patact_99.PDF
The Patents (Amendment) Act 2002 http://ipindia.nic.in/ipr/patent/patentg.pdf
The Patents (Amendment) Act 2005 http://ipindia.nic.in/ipr/patent/patent_2005.pdf
India provides trademark protection for marks of goods and services, collective marks, certification trademarks and well-known marks under the Trademarks Act 1999. Further details regarding trademarks protection are available at the website of Controller of Patents, Designs and Trademarks http://ipindia.nic.in/tmr_new/default.htm
Trademarks Act 1999 http://ipindia.nic.in/tmr_new/tmr_act_rules/tmr_act.pdf
Trademarks Rules 2002 http://ipindia.nic.in/tmr_new/tmr_act_rules/tmr_rules_2002.pdf
Detailed information regarding geographical indications protection are available at the website of Controller of Patents Trademarks and Designs http://ipindia.nic.in/ipr/gi/geo_ind.htm
The Geographical Indications of Goods (Registration and Protection) Act 1999 http://ipindia.nic.in/ipr/gi/gi_act.PDF
The Geographical Indications of Goods (Registration and Protection) Rules 2002 http://ipindia.nic.in/ipr/gi/Girule~1.PDF
Protection to plant varieties is provided by the Protection of Plant Varieties and Farmers' Rights Act 2001. This Act provides an effective system for protection of plant varieties and farmers' rights to stimulate investments for R&D both in public and private sectors for the development of new plant varieties by ensuring appropriate returns on such investment. This Act complies with India's obligations under Article 27.3 (b) of the TRIPS Agreement of the WTO by providing an effective sui generis system for protection of plant varieties.
Further information is available at the website of Department of Agriculture, Cooperation & Family Welfare, Ministry of Agriculture http://agricoop.nic.in/
The Protection of Plant Varieties and Farmers' Rights Act 2001 http://agricoop.nic.in/PPV&FR%20Act,%202001.pdf
The Designs Act 2000 provides to protection to registered designs in accordance with India's obligations under the TRIPS Agreement.
Independently created designs that are new or original are protected under this Act. The Act provides a right to the owner of the registered industrial design to prevent third parties not having his consent from making, selling or importing articles being or embodying a design, which is a copy or substantially a copy of the protected design when such acts are undertaken for commercial purposes. The duration of the protection is ten years.
Legal/Dispute Resolution System
India has a well-established and independent judiciary system. The Supreme Court of India in New Delhi is the highest Court of Appeal. Each State has a High Court along with subsidiary District Courts, which enforce the rule of law and ensure fundamental rights of citizens, guaranteed by the Constitution of India.
India has a three-tier court system with a typical Indian litigation starting from a District Courts and reaching its logical conclusion in the Supreme Court of India. The High Courts along with the various State level forums, situated mostly in the State capitals, constitute the middle rung of this three-tier system. District level courts are the courts of first instance in dispute resolution except in cases where they are prevented from being so by virtue of lack of pecuniary jurisdiction. Cases involving violation of fundamental rights are filed in respective High Court or Supreme Court.
A civil, criminal or commercial dispute may be filed in the court having territorial jurisdiction and depending upon level of crime or pecuniary jurisdiction. The place of cause of action and the place of residence of the defendant are the necessary determinants of territorial jurisdiction.
A number of special courts and tribunals have been constituted in India to deal with specific disputes: -
» Various Tax Tribunals
» Consumer Dispute Rederssal Forums
» Insurance Regulatory Authority of India
» Industrial Tribunals
» Debts Recovery Tribunals
» Company Law Board
» Motor Accidents Claims Tribunals
An appeal can be filed against an order of the civil or criminal judge before the Court of District and Sessions Judge. Next appeal can be preferred before the High Court and after that to the Supreme Court.
Under Article 141 of the Constitution of India, every judgment delivered by the Supreme Court becomes the Law of the Land to be followed by all the other lower courts.
The awards and decrees of the Indian courts are sacrosanct. However, Section 13 of the Code of Civil Procedure 1908 (CPC) lays down that a foreign judgment shall be conclusive as to any matter directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except in few cases.
Section 44A of the CPC provides for execution of decrees passed by courts in a reciprocating territory. It lays down that where a certified copy of decree of any of the superior courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as it has been passed by the District Court. Government of India has notified Singapore, Malaysia, UK, New Zealand, Hong Kong and Fiji as reciprocating territories. For other countries, a foreign decree may be executed in India by filing a suit in the District Court on the basis of the said decree praying inter-alia, for the execution of the decree passed by the foreign court. In addition, the CPC provides for a summary procedure for faster recovery of a debt or liquidated money in demand under Order 37 of the CPC. In summary suit, defendant is not, as in an ordinary suit, entitled as of right to defend the suit.
Arbitration and Conciliation
Arbitration and Conciliation Act 1996 based on the UNCITRAL model law provides for resolution of a commercial dispute expeditiously for:
- International commercial arbitration, where the seat of arbitration is India and
- Enforcement of international commercial arbitration agreements and awards under the New York Convention and Geneva Convention where the seat of arbitration is outside India.
The Arbitration Act also provides for international commercial arbitration whether contractual or not, considered as commercial under Indian law and where at least one of the parties is a foreign national or incorporated in a foreign country.
The Supreme Court of India in the matter of M/s Furest Day Lawson Ltd. Vs. Jindal Exports Ltd 2000(4) AD(SC) 433 held that "The foreign award is already stamped as a decree". The party holding a foreign award can straightaway apply for the enforcement of the same and while enforcing the award, the Court has to proceed in accordance with Sections 47-49 of the Arbitration Act. Once the Court decides that the foreign award is enforceable, it can proceed to execute the same. A foreign award can be executed in India by filing an Execution Application after a foreign arbitration award is held to be enforceable by an Indian Court of competent jurisdiction. In view of the apex court in the above case, a foreign award is deemed and does not become a decree after decision of the court as regards its enforceability.
The domestic award is enforced as per Section 36 of the Arbitration Act, which states that where the time for making an application to set aside the Arbitral Award under Section 34 has expired, or such application having been made, it has been refused, the Award shall be enforced under the CPC in the same manner as if it were a Decree of the Court.
New Dispute Resolution Opportunities offered by Investment Treaties
India has entered into bilateral investment treaties with a number of countries including Australia, France, Japan, Korea, UK, Germany, Russian Federation, The Netherlands, Malaysia, Denmark, OPIC of US. Each agreement makes provision for settlement of disputes between an investor of one contracting party and an investor of the other contracting party through negotiation, conciliation and arbitration.
India is a party to the Convention establishing the Multilateral Investment Guarantee Agency (MIGA), which provides for settlement of disputes between State parties to the Convention and MIGA through negotiation, conciliation and arbitration.
Under Indian Law, the following types of differences cannot be settled by arbitration, and therefore, must be settled only through civil suits: -
» Matters of public rights
» Proceedings under the Foreign Exchange Management Act (FEMA) which are quasi-criminal in nature
» Validity of intellectual property rights granted by statutory authorities
» Taxation matters beyond the will of the parties
» Winding up under the Companies Act, 1956
» Disputes involving insolvency proceedings
Foreign Institutional Investors (FIIs) are allowed to invest in India in the securities traded in both primary and secondary capital markets. These securities include shares, debentures, warrants, and units of mutual funds, government securities and derivative instruments.
The term FII is defined as an institution established or incorporated outside India for making investment in Indian securities and also includes a sub-account of an FII. FIIs include Asset Management Companies, Pension Funds, Mutual Funds, Investment Trust as nominee companies, Incorporated/Institutional Portfolio managers or their power attorney holders, University Funds, Endowment Foundations, Charitable Trusts and Charitable Societies.
FIIs, must register with Securities and Exchange Board of India (SEBI) and shall comply with the Exchange Control Regulations of RBI.
No permission from RBI is needed so long as the FIIs purchase and sell on recognized stock exchange. All non-stock exchange sales/purchases require RBI permission.
Foreign Exchange Regulations
India has liberalized its foreign exchange controls. Rupee is freely convertible on current account. Rupee is also almost fully convertible on capital account for non-residents. Profits earned, dividends and proceeds out of the sale of investments are fully repatriable for FDI. There are restrictions on capital account for resident Indians for incomes earned in India.
The Reserve Bank of India's Foreign Exchange Department administers Foreign Exchange Management Act 1999(FEMA). Foreign Exchange Management (transfer of securities to any person resident outside India) Regulation as amended from time to time regulates transfer for issue of any security by a person resident outside India.
Repatriation of investment capital and profits earned in India
» All foreign investments are freely repatriable, subject to sectoral policies and except for cases where Non Resident Indians choose to invest specifically under non-repatriable schemes. Dividends declared on foreign investments can be remitted freely through an Authorized Dealer.
» Non-residents can sell shares on stock exchange without prior approval of RBI and repatriate through a bank the sale proceeds if they hold the shares on repatriation basis and if they have necessary NOC/ tax clearance certificate issued by Income Tax authorities.
» For sale of shares through private arrangements, Regional offices of RBI grant permission for recognized units of foreign equity in Indian company in terms of guidelines indicated in Regulation 10.B of Notification No. FEMA.20/2000 RB dated May 2000. The sale price of shares on recognized units is to be determined in accordance with the guidelines prescribed under Regulation 10B(2) of the above Notification.
» Profits, dividends, etc. (which are remittances classified as current account transactions) can be freely repatriated.
Acquisition of Immovable Property by Non-resident
A person resident outside India, who has been permitted by Reserve Bank of India to establish a branch, or office, or place of business in India (excluding a Liaison Office), has general permission of Reserve Bank of India to acquire immovable property in India, which is necessary for, or incidental to, the activity. However, in such cases a declaration, in prescribed form (IPI), is required to be filed with the Reserve Bank, within 90 days of the acquisition of immovable property.
Foreign nationals of non-Indian origin who have acquired immovable property in India with the specific approval of the Reserve Bank of India cannot transfer such property without prior permission from the Reserve Bank of India. Please refer to the Foreign Exchange Management (Acquisition and transfer of Immovable Property in India) Regulations' 2000 (Notification No. FEMA.21/ 2000-RB dated May 3, 2000).
Financial System in India
India has a financial system that is regulated by independent regulators in the sectors of banking, insurance, capital markets, competition and various services sectors. In a number of sectors Government plays the role of regulator.
Ministry of Finance, Government of India looks after financial sector in India. Finance Ministry every year presents annual budget on February 28 in the Parliament. The annual budget proposes changes in taxes, changes in government policy in almost all the sectors and budgetary and other allocations for all the Ministries of Government of India. The annual budget is passed by the Parliament after debate and takes the shape of law.
Reserve bank of India (RBI) established in 1935 is the Central bank. RBI is regulator for financial and banking system, formulates monetary policy and prescribes exchange control norms. The Banking Regulation Act, 1949 and the Reserve Bank of India Act, 1934 authorize the RBI to regulate the banking sector in India.
India has commercial banks, co-operative banks and regional rural banks. The commercial banking sector comprises of public sector banks, private banks and foreign banks. The public sector banks comprise the 'State Bank of India' and its seven associate banks and nineteen other banks owned by the government and account for almost three fourth of the banking sector. The Government of India has majority shares in these public sector banks. Complete details are available at website https://www.rbi.org.in
India has a two-tier structure of financial institutions with thirteen all India financial institutions and forty-six institutions at the state level. All India financial institutions comprise term-lending institutions, specialized institutions and investment institutions, including in insurance. State level institutions comprise of State Financial Institutions and State Industrial Development Corporations providing project finance, equipment leasing, corporate loans, short-term loans and bill discounting facilities to corporate. Government holds majority shares in these financial institutions.
Non-banking Financial Institutions provide loans and hire-purchase finance, mostly for retail assets and are regulated by RBI.
Insurance sector in India has been traditionally dominated by state owned Life Insurance Corporation and General Insurance Corporation and its four subsidiaries. Government of India has now allowed FDI in insurance sector up to 26%. Since then, a number of new joint venture private companies have entered into life and general insurance sectors and their share in the insurance market in rising. Insurance Development and Regulatory Authority (IRDA) is the regulatory authority in the insurance sector under the Insurance Development and Regulatory Authority Act, 1999.
RBI also regulates foreign exchange under the Foreign Exchange Management Act (FERA). India has liberalized its foreign exchange controls. Rupee is freely convertible on current account. Rupee is also almost fully convertible on capital account for non-residents. Profits earned, dividends and proceeds out of the sale of investments are fully repatriable for FDI. There are restrictions on capital account for resident Indians for incomes earned in India.
Securities and Exchange Board of India (SEBI) established under the Securities and Exchange aboard of India Act, 1992 is the regulatory authority for capital markets in India. India has 23 recognized stock exchanges that operate under government approved rules, bylaws and regulations. These exchanges constitute an organized market for securities issued by the central and state governments, public sector companies and public limited companies. The Stock Exchange, Mumbai and National Stock Exchange are the premier stock exchanges. Under the process of de-mutualization, these stock exchanges have been converted into companies now, in which brokers only hold minority share holding. In addition to the SEBI Act, the Securities Contracts (Regulation) Act, 1956 and the Companies Act, 1956 regulates the stock markets. Complete details are available at website http://www.sebi.gov.in
Taxation System in India
India has a well-developed tax structure with clearly demarcated authority between Central and State Governments and local bodies. Central Government levies taxes on income (except tax on agricultural income, which the State Governments can levy), customs duties, central excise and service tax.
Value Added Tax (VAT), (Sales tax in States where VAT is not yet in force), stamp duty, State Excise, land revenue and tax on professions are levied by the State Governments. Local bodies are empowered to levy tax on properties, octroi and for utilities like water supply, drainage etc.
In last 10-15 years, Indian taxation system has undergone tremendous reforms. The tax rates have been rationalized and tax laws have been simplified resulting in better compliance, ease of tax payment and better enforcement. The process of rationalization of tax administration is ongoing in India.
Since April 01, 2005, most of the State Governments in India have replaced sales tax with VAT.
Taxes Levied by Central Government
» Tax on Corporate Income
» Capital Gains Tax
» Personal Income Tax
» Tax Incentives
» Double Taxation Avoidance Treaty
» Excise Duty
» Customs Duty
» Service Tax
» Securities Transaction Tax
Taxes Levied by State Governments and Local Bodies
» Sales Tax/VAT
» Other Taxes
For further details please visit the web site of Income Tax Department at http://www.incometaxindia.gov.in/
Government of India provides tax incentives for:-
» Corporate profit
» Accelerated depreciation allowance
» Deductibility of certain expenses subject to certain conditions.
These tax incentives are, subject to specified conditions, available for new investment in
» Power distribution,
» Certain telecom services,
» Undertakings developing or operating industrial parks or special economic zones,
» Production or refining of mineral oil,
» Companies carrying on R&D,
» Developing housing projects,
» Undertakings in certain hill states,
» Handling of food grains,
» Food processing,
» Rural hospitals etc.
Central Excise duty is administered by the Central Board of Excise and Customs. For further information, please visit their website at http://www.cbec.gov.in/
The levy and the rate of customs duty in India are governed by the Customs Act 1962 and the Customs Tariff Act 1975. Imported goods in India attract basic customs duty, additional customs duty and education cess. The rates of basic customs duty are specified under the Tariff Act. The peak rate of basic customs duty has been reduced to 15% for industrial goods. Additional customs duty is equivalent to the excise duty payable on similar goods manufactured in India. Education cess at 2% is leviable on the aggregate of customs duty on imported goods. Customs duty is calculated on the transaction value of the goods.
Service tax is levied at the rate of 10% (plus 2% education cess) on certain identified taxable services provided in India by specified service providers. Service tax on taxable services rendered in India are exempt, if payment for such services is received in convertible foreign exchange in India and the same is not repatriated outside India. The Cenvat Credit Rules allow a service provider to avail and utilize the credit of additional duty of customs/excise duty for payment of service tax. Credit is also provided on payment of service tax on input services for the discharge of output service tax liability.
Securities Transaction Tax
Transactions in equity shares, derivatives and units of equity-oriented funds entered in a recognized stock exchange attract Securities Transaction Tax at the following rate:-
» Delivery base transactions in equity shares or buyer and seller each units of an equity-oriented fund - 0.075%
» Sale of units of an equity-oriented fund to the seller mutual fund - 0.15%
» Non delivery base transactions in the above - 0.015%
» Derivatives (futures and options) seller - 0.01%
For further details please visit the web site of Income Tax Department at http://www.incometaxindia.gov.in/
Other State Taxes
» Stamp duty on transfer of assets
» Property/building tax levied by local bodies
» Agriculture income tax levied by State Governments on income from plantations
» Luxury tax levied by certain State Government on specified goods