Opening of foreign Branch/Project office/Foreign subsidiary

 
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Establishment of Branch/Liaison/Project Offices in India by Foreign Entities

1.PROCEDURE

A. ROUTE FOR ESTABLISHMENT OF BRANCH IN INDIA BY FOREIGN ENTITIES:-

    A body corporate incorporated outside India (including a firm or other association of individuals), desirous of opening a branch Office (BO) in India have to obtain permission from the Reserve Bank under provisions of FEMA 1999. The applications  will be considered by Reserve Bank under two routes:

    1. Reserve Bank Route: Where principal business of the foreign entity falls under Sectors where 100 per cent Foreign Direct Investment (FDI) is permissible under the automatic route.
    2. Government Route: Where principal business of the foreign entity falls under the Sectors where 100 per cent FDI is not permissible under the automatic route.    
     Applications from entities falling under this category and those from Non -  Government Organizations / Non - Profit Organizations / Government Bodies /  Departments are considered by the Reserve Bank in consultation with the  Ministry of Finance, Government of India.

    The following additional criteria are also considered by the Reserve Bank while sanctioning Branch Offices of foreign entities:  

    1. Track Record
         a. For Branch Office — a profit making track record during the immediately preceding five financial years in the home country.

         b. For Liaison Office — a profit making track record during the immediately preceding three financial years in the home country.

    2. Net Worth   i.e  [total of paid-up capital and free reserves, less intangible assets as per the latest Audited Balance Sheet or Account Statement certified by a Certified Public Accountant or any Registered Accounts Practitioner by whatever name].

         a. For Branch Office — not less than USD 100,000 or its equivalent.

         b. For Liaison Office — not less than USD 50,000 or its equivalent.

B. Branch Office in Special Economic Zones (SEZs)

    1. Reserve Bank has given general permission to foreign companies for establishing Branch/unit in Special Economic Zones (SEZs) to undertake manufacturing and service Activities. The general permission is subject to the following conditions:

        a. such units are functioning in those sectors where 100 per cent FDI is permitted;
        b. such units comply with part XI of the Companies Act,1956 (Section 592 to 602);
        c. such units function on a stand-alone basis.

    2. In the event of winding-up of business and for remittance of winding-up proceeds, the branch shall approach an AD Category – I bank with the documents as mentioned under "Closure of Liaison / Branch Office" except the copy of the letter granting approval by the Reserve Bank.

C. Branches of Foreign Banks

    Foreign banks do not require separate approval under FEMA, for opening branch office in India. Such banks are, however, required to obtain necessary approval under the provisions of the Banking Regulation Act, 1949, from Department of Banking Operations & Development, Reserve Bank.

D. APPLICATION

    The application for establishing BO / LO in India should be forwarded by the foreign entity through a designated AD Category - I bank to the Chief General Manager-in-Charge, Reserve Bank of India, Foreign Exchange Department, Foreign Investment Division, Central Office, Fort, Mumbai-400 001, along with the prescribed documents including.

  • English version of the Certificate of Incorporation / Registration or Memorandum & Articles of Association attested by Indian Embassy / Notary Public in the Country of Registration.
  • Latest Audited Balance Sheet of the applicant entity.
  • The Branch / Liaison offices established with the Reserve Bank's approval will be allotted a Unique Identification Number (UIN)
  • The BOs / LOs shall also obtain Permanent Account Number (PAN) from the Income Tax Authorities on setting up the offices in India. 

 E. Permissible Activities of Branch Office

    Companies incorporated outside India and engaged in manufacturing or trading activities are allowed to set up Branch Offices in India with specific approval of the Reserve Bank. Such Branch Offices are permitted to represent the parent / group companies and undertake the following activities in India:
     
    i. Export / Import of goods.
    ii. Rendering professional or consultancy services.
    iii. Carrying out research work, in areas in which the parent company is engaged.
    iv. Promoting technical or financial collaborations between Indian companies and parent or overseas group company.
    v. Representing the parent company in India and acting as buying / selling agent in India.
    vi. Rendering services in information technology and development of software in India.
    vii. Rendering technical support to the products supplied by parent/group companies.
    viii. Foreign airline / shipping company.

F. Non Permissible Activity
    1. Retail trading activities of any nature is not allowed for a Branch Office in India.

     2. A Branch Office is not allowed to carry out manufacturing or processing activities  in India, directly or indirectly.

    3.Profits earned by the Branch Offices are freely remittable from India, subject to payment of applicable taxes.

    Application for Undertaking Additional Activities or Additional Branch / Liaison Offices

    Requests for undertaking activities in addition to what has been permitted initially by the Reserve Bank may be submitted through the designated AD Category -I bank to the Chief General Manager-in-Charge, Reserve Bank of India, Foreign Exchange Department, Foreign Investment Division, Central Office, Mumbai, justifying the need with comments of the designated AD Category - I bank.  Requests for establishing additional BO / LOs may be submitted through fresh FNC form  (Annex 1), duly signed by the authorized signatory of the foreign entity in the home country  to the Reserve Bank of India as explained above. However, the documents mentioned in form  FNC need not be resubmitted, if there are no changes to the documents already submitted  earlier.

    1. If the number of Offices exceeds 4 (i.e. one BO / LO in each zone viz; East, West, North and South), the applicant has to justify the need for additional office/s.

    2. The applicant may identify one of its Offices in India as the Nodal Office, which will coordinate the activities of all Offices in India .

 

 

2. OUR SERVICES

We’ve prepared the ideal package of services for the company type listed above to help you start your business in India. In order to make the process go as smoothly as possible, we’ve prepared a limited list of necessary documents we’ll need so that we can prepare all the rest for you. If you have any questions about these please don’t hesitate to ask.

3. DOCUMENTS REQUIRED
1.    Foreign Company Registration Certificate & Articles of Incorporation
2.    Documents required for foreigner registration
Items client Provide   

  • Passport
  • Photograph
  • Documents related to the company
    (business plan, information/pamphlets about the company, office lease agreement, etc)
  • Other documents as needed on a case-by-case basis.

Items We Prepare

  • Meeting minutes regarding establishing branch
  • Registration Application.

4. FAQ

Q.1. How can foreign companies open Liaison /Branch office in India?
Ans.
A. With effect from February 1, 2010, foreign companies/entities desirous of setting up of Liaison Office / Branch Office (LO/BO) are required to submit their application in Form FNC along with the documents mentioned therein to Foreign Investment Division, Foreign Exchange Department, Reserve Bank of India, Central Office, Mumbai through an Authorised Dealer bank. This form is available at  www.rbi.org.in
B. The applications from such entities in Form FNC will be considered by the Reserve Bank under two routes:
Reserve Bank Route - Where principal business of the foreign entity falls under sectors where 100 per cent Foreign Direct Investment (FDI) is permissible under the automatic route.
Government Route - Where principal business of the foreign entity falls under the sectors where 100 per cent FDI is not permissible under the automatic route. Applications from entities falling under this category and those from Non - Government Organizations / Non - Profit Organisations / Government Bodies / Departments are considered by the Reserve Bank in consultation with the Ministry of Finance, Government of India.
C. The following additional criteria are also considered by the Reserve Bank while sanctioning Liaison/Branch Offices of foreign entities:
• Track Record

  • For Branch Office — a profit making track record during the immediately preceding five financial years in the home country.
  • For Liaison Office — a profit making track record during the immediately preceding three financial years in the home country.

• Net Worth  [total of paid-up capital and free reserves, less intangible assets as per the latest Audited Balance Sheet or Account Statement certified by a Certified Public Accountant or any Registered Accounts Practitioner by whatever name].

  • For Branch Office — not less than USD 100,000 or its equivalent.
  • For Liaison Office — not less than USD 50,000 or its equivalent.

D. Permission to set up such offices is initially granted for a period of 3 years and this may be extended from time to time by the Authorised Dealer in whose jurisdiction the office is set up. The Branch / Liaison offices established with the Reserve Bank's approval will be allotted a  Unique Identification Number (UIN) ( www.rbi.org.in/scripts/Fema.aspx ). The BOs / LOs shall also obtain Permanent Account Number (PAN) from the Income Tax Authorities on setting up the offices in India.
E. Liaison/Branch offices have to file an Annual Activity Certificate (AACs) from the Auditors, as at end of March 31, along with the audited Balance Sheet on or before September 30 of that year, stating that the Liaison Office has undertaken only those activities permitted by Reserve Bank of India. In case the annual accounts of the LO/ BO are finalized with reference to a date other than March 31, the AAC along with the audited Balance Sheet may be submitted within six months from the due date of the Balance Sheet.

Q.2.What are the permitted activities of Liaison Office/ Representative Office?
Ans. A Liaison Office (also known as Representative Office) can undertake only liaison activities, i.e. it can act as a channel of communication between Head Office abroad and parties in India. It is not allowed to undertake any business activity in India and cannot earn any income in India. Expenses of such offices are to be met entirely through inward remittances of foreign exchange from the Head Office outside India. The role of such offices is, therefore, limited to collecting information about possible market opportunities and providing information about the company and its products to the prospective Indian customers. A Liaison Office can undertake the following activities in India:
i. Representing in India the parent company / group compa­nies.
ii. Promoting export / import from / to India. 
iii Promoting technical/financial collaborations be­tween parent/group companies and companies in India.
iv. Acting as a communication channel between the parent company and Indian companies.

Q.3. Can Foreign Insurance Companies / Banks set up Liaison Office in India?
Ans. Foreign Insurance companies can establish Liaison Offices in India only after obtaining approval from the Insurance Regulatory and Development Authority (IRDA). Similarly, foreign banks can establish Liaison Offices in India only after obtaining approval from the Department of Banking Operations and Development (DBOD), Reserve Bank of India.
Q. 4. What is the procedure for setting up Branch office?
Ans. Permission for setting up branch offices is granted by the Foreign Exchange Department, Reserve Bank of India, Central Office, Mumbai. Reserve Bank of India considers the track record of the applicant company, existing trade relations with India, the activity of the company proposing to set up office in India as well as the financial position of the company while scrutinising the application. The application in Form FNC should be submitted to the Reserve Bank through the Authorized Dealer bank.
Q.5. what are the permitted activities of Branch Office?
Ans. Companies incorporated outside India and engaged in manufacturing or trading activities are allowed to set up Branch Offices in India with specific approval of the Reserve Bank. Such Branch Offices are permitted to represent the parent / group companies and undertake the following activities in India:

  • Export / Import of goods.1
  • Rendering professional or consultancy services.
  • Carrying out research work, in areas in which the parent company is engaged.
  • Promoting technical or financial collaborations between Indian companies and parent or overseas group company.
  • Representing the parent company in India and acting as buying / selling agent in India.
  • Rendering services in information technology and devel­opment of software in India.
  • Rendering technical support to the products sup­plied by parent/group companies.
  • Foreign airline / shipping company.

Normally, the Branch Office should be engaged in the activity in which the parent company is engaged.
Note:

  • Retail trading activities of any nature is not allowed for a Branch Office in India.
  • A Branch Office is not allowed to carry out manufacturing or processing activities in India, directly or indirectly.
  • Profits earned by the Branch Offices are freely remittable from India, subject to payment of applicable taxes.

Q.6. Whether Branch Offices are permitted to remit profit outside India?
Ans. Branch Offices are permitted to remit outside India profit of the branch net of applicable Indian taxes, on production of the following documents to the satisfaction of the Authorised Dealer through whom the remittance is effected :
a. A Certified copy of the audited Balance Sheet and Profit and Loss account for the relevant year;
b. A Chartered Accountant’s certificate certifying -
i. the manner of arriving at the remittable profit
ii. that the entire remittable profit has been earned by undertaking the permitted activities
iii. that the profit does not include any profit on revaluation of the assets of the branch.

Q.7 what are the documents to be submitted to the AD bank at the time of closure of the Liaison/ Branch Office?
Ans. At the time of winding up of Branch/Liaison offices, the company has to approach the designated AD Category - I bank with the following documents:
a) Copy of the Reserve Bank's permission/ approval from the sectoral regulator(s) for establishing the BO / LO.
b) Auditor’s certificate - i) indicating the manner in which the remittable amount has been arrived at and supported by a statement of assets and liabilities of the applicant, and indicating the manner of disposal of assets;
ii) confirming that all liabilities in India including arrears of gratuity and other benefits to employees, etc., of the Office have been either fully met or adequately provided for; and
iii) Confirming that no income accruing from sources outside India (including proceeds of exports) has remained un-repatriated to India.
c) No-objection / Tax Clearance Certificate from Income-Tax authority for the remittance/s.
d) Confirmation from the applicant/parent company that no legal proceedings in any Court in India are pending and there is no legal impediment to the remittance.
e) A report from the Registrar of Companies regarding compliance with the provisions of the Companies Act, 1956, in case of winding up of the Office in India.
f) Any other document/s, specified by the Reserve Bank while granting approval.

Q.8. what is the procedure for setting up Project Office?
Ans. The Reserve Bank has granted general permission to foreign companies to establish Project Offices in India, provided they have secured a contract from an Indian company to execute a project in India, and

  • the project is funded directly by inward remittance from abroad; or
  • the project is funded by a bilateral or multilateral International Financing Agency; or
  • the project has been cleared by an appropriate authority; or
  • a company or entity in India awarding the contract has been granted Term Loan by a Public Financial Institution or a bank in India for the project.

However, if the above criteria are not met or if the parent entity is established in Pakistan, Bangladesh, Sri Lanka, Afghanistan, Iran or China, such applications have to be forwarded to the Foreign Exchange Department, Reserve Bank of India, Central Office, Mumbai for approval.
Q.9. What are the bank accounts permitted to a Project Office?
Ans. AD Category – I banks can open non-interest bearing Foreign Currency Account for Project Offices in India subject to the following:

  • The Project Office has been established in India, with the general / specific permission of Reserve Bank, having the requisite approval from the concerned Project Sanctioning Authority concerned.
  • The contract, under which the project has been sanctioned, specifically provides for payment in foreign currency.
  • Each Project Office can open two Foreign Currency Accounts, usually one denominated in USD and other in home currency, provided both are maintained with the same AD category–I bank.
  • The permissible debits to the account shall be payment of project related expenditure and credits shall be foreign currency receipts from the Project Sanctioning Authority, and remittances from parent/ group company abroad or bilateral / multilateral international financing agency.
  • The responsibility of ensuring that only the approved debits and credits are allowed in the Foreign Currency Account shall rest solely with the branch concerned of the AD. Further, the Accounts shall be subject to 100 per cent scrutiny by the Concurrent Auditor of the respective AD banks.
  • The Foreign Currency accounts have to be closed at the completion of the Project.

Q.10. What are the general conditions applicable to Liaison / Branch / Project Office of foreign entities in India?
Ans. The general conditions applicable to Liaison/Branch/Project Office of foreign entities in India are as under;
(i) Without prior permission of the Reserve Bank, no person being a citizen of Pakistan, Bangladesh, Sri Lanka, Afghanistan, Iran or China can establish in India, a Branch or a Liaison Office or a Project Office or any other place of business.
(ii) Partnership / Proprietary concerns set up abroad are not allowed to establish Branch /Liaison/Project Offices in India.
(iii) Entities from Nepal are allowed to establish only Liaison Offices in India.
(iv) Branch/Project Offices of a foreign entity, excluding a Liaison Office are permitted to acquire property for their own use and to carry out permitted/incidental activities but not for leasing or renting out the property. However, entities from Pakistan, Bangladesh, Sri Lanka, Afghanistan, Iran, Bhutan or China are not allowed to acquire immovable property in India even for a Branch Office. These entities are allowed to lease such property for a period not exceeding five years.
(v) Branch / Liaison / Project Offices are allowed to open non-interest bearing INR current accounts in India.
(vi) Transfer of assets of Liaison / Branch Office to subsidiaries or other LO / BO or any other entity is permitted only with the specific approval of the Central Office of the Foreign Exchange Department, Reserve Bank of India.
(viii) Authorised Dealers can allow term deposit account for a period not exceeding 6 months in favor of a branch/office of a person resident outside India provided the bank is satisfied that the term deposit is out of temporary surplus funds and the branch / office furnishes an undertaking that the maturity proceeds of the term deposit will be utilised for their business in India within 3 months of maturity. However, such facility may not be extended to shipping/airline companies.
(ix) Permission to establish offices, in India by foreign Non-Government Organisations/Non-Profit Organisations/Foreign Government Bodies/Departments, by whatever name called, are under the Government Route as specified in A. P. (DIR Series) Circular No. 23 dated December 30, 2009. Such entities are required to apply to the Reserve Bank for prior permission to establish an office in India, whether Project Office or otherwise.