Establishment of Branch

Let’s understand in detail:

• What is Foreign Company, Branch Office/ Liaison Office
• Permitted and Prohibited areas 
• Rules and regulations for establishment of branch/liaison offices

Tax Implications

Note: This definition includes a Branch Office; all the provisions of the Companies Act applying to the company will also be applicablefor BO.

Meaning of Branch Office (BO)

• A Branch office is an extension of foreign entity for carrying out the permissible activities in any other country/countries.
• The role of BO is to undertake the permissible activities in India.

Permissible Activities:

• Export / Import of goods.
• 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.

Prohibited areas:

• 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

Meaning of Liaison Office (LO)

• A Liaison office is a representative office of foreign entity which act as a channel of communication between Head Office abroad and parties in India.
• The role of LO is notundertaking any commercial activities but limited to collecting information and providing information about the company to the prospective Indian Customers.

The Permission to set up such offices is initially granted for a period of 3 years and this may be extended from the date of expiry of the original approval/ extension granted by the RBI, if the applicant has complied with the conditions as prescribed by RBI.

Permissible Activities:

• Representing in India the parent company / group companies
• Promoting export / import from / to India.
• Promoting technical/financial collaborations between parent/group companies and companies in India.
• Acting as a communication channel between the parent company and Indian companies.

Note: However, no foreign law firm shall be permitted to open any LO as per recently passed order by the Supreme Court of India.

Compliances for establishment of branch/liaison offices

• A body corporate incorporated outside India (including a firm or other associations of individuals), desirous of opening a Liaison office/Branch office have to obtain permission from the RBI under provisions of FEMA 1999.
• The application for establishing BO / LO in India should be forwarded by the foreign entity through a designated AD Category – I Bank to the address of – Foreign Exchange Department, Reserve Bank of India.
• The application should be forwarded along with prescribed documents which includes –

• 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 applications from such entities in Form FNC (Annex-1) will be considered by Reserve Bank under two routes:

Note: – 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, GOI.

Criteria which are considered by the RBI while sanctioning Branch office/Liaison Office of foreign entities:

Requirements	For Liaison Office	For Branch Office
Profit making track record	Immediately 3 FY in the home country.	Immediately 5 FY in the home country.
Net Worth	>USD 50,000 or its equivalent.	>USD 100,000 or its equivalent.

• The application in Form FNC shall be filed to an Authorized Dealer Category – I along with prescribed documents viz.,

• Copy of Certificate of Incorporation/Registration attested by the Notary Public in the country of registration.
• AOA/MOA attested by the Notary Public 
• Audited Balance Sheet 
• Bankers’ Report from the applicant’s banker in the country of registration showing the number of years the applicant has had banking relations with that bank.
• Bankers’ Report from the applicant’s banker in the country of registration showing the number of years the applicant has had banking relations with that bank.

Note: Applicants who do not satisfy the eligibility criteria and are subsidiaries of other companies can submit a Letter of Comfort from their parent company as per Annex-2, subject to the condition that the parent company satisfies the eligibility criteria as prescribed above.

Compliance under Companies Act, 2013

Such foreign companies shall be governed by the provisions of:

(i) Chapter XXII of the Companies Act, 2013

(ii) Companies (Registration of Foreign Companies) Rules, 2014

Rule 3(3) of the Companies (Registration of Foreign Companies) Rules, 2014 requires every foreign to file e-Form FC-1 to the Ministry of Corporate Affairs within 30 days of the establishment of its place of business in India. 

And Rule 3(4) provides that in case of any alteration in the aforesaid documents the Foreign Company is require to submit a return in e-Form FC-2 containing the particulars of alteration as per the prescribed format with the Registrar of Companies, within 30 days of any such alteration.

Allotment of UIN Number

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 and report the same in the Annual Activity Certificate (Annex 3).

Note: The Reserve Bank or the Government of India, as the case may be, reserves the right to reject an application for non-fulfilment of any other condition/s not specifically referred above.

Note: The Reserve Bank or the Government of India, as the case may be, also reserves the right to verify / examine the activities of the BO / LO of the foreign entities established in India and to withdraw the permission already granted, after due notice, if the circumstances so warrant or due to changes in the policy.

Tax Implications

• Branch Office: BO is treated as a foreign company and all the taxes which are applicable to a foreign entity shall also apply to BO.
  Profits earned by the Branch Offices are freely remittable from India, subject to payment 

Of applicable taxes.

• Liaison Office:  Tax Imposed only when it is established that the transaction amounts to commercial operation through Permanent Establishment.

E-Form FC-3 (Annual accounts along with the list of all principal places of business in India established by foreign company)

Every foreign company is required to prepare and file financial statements within a period of six months of the close of the financial year of the foreign company to which the financial statements relate to Delhi ROC in E-Form number FC-3.

Annual Return of Foreign Company:

Every foreign company shall prepare and file annual return of the company in E-Form FC-4 within 60 days from the close of financial year.