Setting Up a Subsidiary in India: A Complete Guide
India has become one of the most attractive destinations for
foreign investments due to its rapidly growing economy, large consumer market,
and strategic geographic location. For foreign companies looking to expand
their business operations, setting up a subsidiary in India offers a great
opportunity to tap into this burgeoning market. However, the process of
establishing a subsidiary in India can seem complex, given the country’s
regulatory and compliance requirements. In this blog, we will walk you through
the entire process of setting up a subsidiary in India, highlighting key steps,
legal considerations, and tips to ensure smooth registration and operation.
What is a Subsidiary Company?
A subsidiary is a company that is controlled by another
company, typically referred to as the parent company. The parent company holds
a majority of shares in the subsidiary, giving it control over the company’s
operations and management. In the context of India, a foreign company may set
up a subsidiary as a separate legal entity that is registered under Indian law.
The subsidiary is typically established to conduct business activities within
India while being governed by Indian corporate laws.
Benefits of Setting Up a Subsidiary in India
Setting up a subsidiary in India has several advantages,
particularly for foreign companies looking to expand their footprint in the
country. Some of the benefits include:
- Access
to India’s Growing Market: India is the second most populous country
in the world, with a large and diverse consumer base, making it a
high-potential market for various industries.
- Limited
Liability: A subsidiary operates as a separate legal entity, which
means that the parent company’s liability is limited to the shares it
holds in the subsidiary.
- Tax
Incentives: Depending on the nature of the business, the Indian
government offers certain tax incentives and exemptions for foreign
investors setting up subsidiaries, especially in specific sectors like
manufacturing, technology, and research and development.
- Brand
Recognition: Having a legal presence in India through a subsidiary can
enhance a company’s brand image and customer trust in the local market.
- Operational
Control: Unlike joint ventures, where a foreign company may have to
share control, a subsidiary allows the parent company to maintain full
operational control over the Indian business.
Types of Subsidiary Companies in India
Before delving into the process, it’s important to
understand the types of subsidiary companies foreign entities can set up in
India:
- Wholly-Owned
Subsidiary: A wholly-owned subsidiary is a company where the parent
company holds 100% of the shares. This structure offers full control to
the parent company over the subsidiary’s operations and decisions.
- Joint
Venture Subsidiary: In this case, the parent company partners with an
Indian company or other foreign entities to form a joint venture. The
ownership is shared, with the foreign company holding a majority or
minority stake.
The structure of the subsidiary will depend on the foreign
company’s business goals, level of control desired, and the strategic
partnership model.
Key Steps to Setting Up a Subsidiary in India
Setting up a subsidiary in India requires adherence to
various legal, regulatory, and procedural requirements. The process can be
broken down into several stages:
Step 1: Decide on the Type of Business Entity
The first step in setting up a subsidiary in India is
determining the most suitable type of business entity. There are primarily
three options for foreign companies looking to establish a subsidiary:
- Private
Limited Company: The most common structure for a subsidiary in India
is the private limited company. This type of entity requires at least two
directors and two shareholders. It limits liability to the extent of the
company’s share capital and offers the flexibility of raising capital from
investors.
- Public
Limited Company: A public limited company can also be formed, but this
requires a minimum of seven members and three directors. This structure is
less common for subsidiaries but may be suitable for large foreign
entities looking to expand their operations in India.
- Limited
Liability Partnership (LLP): In some cases, a foreign company may
prefer to set up a limited liability partnership (LLP) in India, which
allows the foreign entity to have limited liability while sharing control
with one or more partners. This structure is particularly useful for
professional services firms.
Step 2: Obtain the Necessary Approvals and Permits
Once the type of business entity has been decided, the next
step is to obtain the necessary approvals and permits from Indian authorities.
Some of the approvals you may need include:
- Foreign
Direct Investment (FDI) Approval: India allows foreign investment in
many sectors through the Foreign Direct Investment (FDI) route. Depending
on the sector, foreign companies may need approval from the Reserve Bank
of India (RBI) or the Foreign Investment Promotion Board (FIPB).
- Sector-Specific
Clearances: Certain industries, such as defense, media, and
telecommunications, have sector-specific regulations that may require
additional clearances from relevant ministries or departments.
- Filing
with the Registrar of Companies (RoC): The company must be registered
with the Registrar of Companies (RoC) under the Ministry of Corporate
Affairs. The registration process requires the company to file several
documents, including the Memorandum of Association (MOA) and Articles of
Association (AOA), along with details of directors and shareholders.
Step 3: Register the Company
Once the necessary approvals have been obtained, the next
step is the registration of the company. The registration process involves the
following key steps:
- Obtain
Digital Signature Certificates (DSC): All documents filed with the
Registrar of Companies must be signed digitally. Directors and
shareholders must obtain a Digital Signature Certificate (DSC) to
facilitate this process.
- Apply
for Director Identification Number (DIN): Every director of the
company must obtain a Director Identification Number (DIN) from the
Ministry of Corporate Affairs.
- Choose
a Company Name: The company name must be unique and comply with the
naming guidelines set by the Ministry of Corporate Affairs. You will need
to submit an application for name approval before proceeding with the
registration.
- Draft
the MOA and AOA: The Memorandum of Association (MOA) outlines the
company’s business objectives, while the Articles of Association (AOA)
defines the rules and regulations governing the company’s operations. Both
documents must be submitted as part of the registration process.
- File
Incorporation Forms: Once all the documents are in order, you will
need to file the incorporation forms with the Registrar of Companies
(RoC). Upon approval, the company will receive a Certificate of
Incorporation.
Step 4: Set Up the Office and Bank Accounts
After registering the subsidiary, the next step is to set up
physical operations. This involves:
- Lease
or Purchase of Office Space: You will need to lease or purchase office
space in India. The office must be registered with the local municipal
authorities to ensure that all legal and tax obligations are met.
- Opening
a Bank Account: The subsidiary must open a bank account in India. The
bank account will be required to handle transactions and meet the
financial requirements of the subsidiary.
Step 5: Comply with Ongoing Regulatory Requirements
After the subsidiary is set up, the company must ensure that
it complies with ongoing regulatory and tax requirements in India. Some of
these include:
- Goods
and Services Tax (GST): If the subsidiary’s turnover exceeds the
prescribed limit, it must register for Goods and Services Tax (GST).
- Annual
Filings: The company must file annual returns and financial statements
with the Registrar of Companies. The financial statements should be
audited by a certified Chartered Accountant in India.
- Tax
Compliance: The subsidiary must comply with Indian tax laws, including
corporate tax, transfer pricing regulations, and employee-related taxes
like the Provident Fund (PF) and Employees’ State Insurance (ESI).
- Labor
Laws: The subsidiary must comply with India’s labor laws, which govern
wages, working conditions, and employee benefits.
Legal Considerations When Setting Up a Subsidiary in
India
When setting up a subsidiary in India, it is crucial to be
aware of various legal considerations that will impact the company’s
operations:
- Foreign
Investment Regulations: Foreign investment in India is regulated by
the Reserve Bank of India (RBI) and must comply with the FDI policy, which
specifies the maximum permissible foreign ownership in various sectors.
- Employment
Laws: The subsidiary must adhere to India’s labor laws, which protect
employees’ rights and govern hiring practices, compensation, benefits, and
termination procedures.
- Intellectual
Property (IP) Protection: Foreign companies must ensure that their
intellectual property rights (patents, trademarks, etc.) are protected
under Indian laws.
- Dispute
Resolution: India’s legal system provides mechanisms for dispute
resolution, including arbitration. It’s crucial for the subsidiary to
understand its rights and obligations under Indian law to avoid
litigation.
Conclusion
Setting up a subsidiary in India is an exciting venture for
foreign businesses seeking to tap into one of the world’s largest and
fastest-growing markets. However, it is essential to navigate the legal,
regulatory, and operational challenges carefully to ensure a smooth setup. By
understanding the process, selecting the right business entity, obtaining
necessary approvals, and complying with local regulations, companies can
establish a successful subsidiary that thrives in the Indian market.