The process of incorporation of a company with Foreign entities or NRIs is similar to that

of a private limited company with Indian directors and Indian shareholders. An additional
step to be complied with is notarization of foreign identity proof, address proof and other
documents of foreign origin. Chapter II of the Companies Act, 2013, explains the process
of incorporation of a company.

Relevant definitions and sections

Section 6(5) of FEMA
A person resident outside India may hold, own, transfer or invest in Indian currency, security
or any immovable property situated in India if such currency, security or property was acquired,
held or owned by such person when he was resident in India or inherited from a person who was
resident in India.
Section 1(46) of Companies Act, 2013- Holding company
holding company, in relation to one or more other companies, means a company of which
such companies are subsidiary companies;
Section 1(87) of Companies Act, 2013- subsidiary company
subsidiary company or subsidiary, in relation to any other company (that is to say the
holding company), means a company in which the holding company
(i)
(ii)

controls the composition of the Board of Directors; or

exercises or controls more than one-half of the total share capital either at its own or
together with one or more of its subsidiary companies:

Provided that such class or classes of holding companies as may be prescribed shall not have
layers of subsidiaries beyond such numbers as may be prescribed.
Explanation.For the purposes of this clause,
(a) a company shall be deemed to be a subsidiary company of the holding company even if the
control referred to in sub-clause (i) or sub-clause (ii) is of another subsidiary company of the
holding company;
(b) the composition of a companys Board of Directors shall be deemed to be controlled by
another company if that other company by exercise of some power exercisable by it at its
discretion can appoint or remove all or a majority of the directors;
(c) the expression company includes any body corporate;
(d) layer in relation to a holding company means its subsidiary or subsidiaries;
Section 19 of Companies Act, 2013- Subsidiary company not to hold shares in its holding
company.

(1) No company shall, either by itself or through its nominees, hold any shares in its holding
company and no holding company shall allot or transfer its shares to any of its subsidiary
companies and any such allotment or transfer of shares of a company to its subsidiary company
shall be void: Provided that nothing in this sub-section shall apply to a case
(a) where the subsidiary company holds such shares as the legal representative of a deceased
member of the holding company; or
(b) where the subsidiary company holds such shares as a trustee; or
(c) where the subsidiary company is a shareholder even before it became a subsidiary company
of the holding company:
Provided further that the subsidiary company referred to in the preceding proviso shall have a
right to vote at a meeting of the holding company only in respect of the shares held by it as a
legal representative or as a trustee, as referred to in clause (a) or clause (b) of the said proviso.
(2) The reference in this section to the shares of a holding company which is a company limited
by guarantee or an unlimited company, not having a share capital, shall be construed as a
reference to the interest of its members, whatever be the form of interest.

Section 233 of Companies Act, 2013- Merger or amalgamation of certain companies.

(1) Notwithstanding the provisions of section 230 and section 232, a scheme of merger or
amalgamation may be entered into between two or more small companies or between a holding
company and its wholly-owned subsidiary company or such other class or classes of companies
as may be prescribed, subject to the following, namely:
(a) a notice of the proposed scheme inviting objections or suggestions, if any, from the Registrar
and Official Liquidators where registered office of the respective companies are situated or
persons affected by the scheme within thirty days is issued by the transferor company or
companies and the transferee company;
(b) the objections and suggestions received are considered by the companies in their respective
general meetings and the scheme is approved by the respective members or class of members at
a general meeting holding at least ninety per cent. of the total number of shares;
(c) each of the companies involved in the merger files a declaration of solvency, in the
prescribed form, with the Registrar of the place where the registered office of the company is
situated; and
(d) the scheme is approved by majority representing nine-tenths in value of the creditors or class
of creditors of respective companies indicated in a meeting convened by the company by giving a
notice of twenty-one days along with the scheme to its creditors for the purpose or otherwise
approved in writing.

(2) The transferee company shall file a copy of the scheme so approved in the manner as may be
prescribed, with the Central Government, Registrar and the Official Liquidator where the
registered office of the company is situated.
(3) On the receipt of the scheme, if the Registrar or the Official Liquidator has no objections or
suggestions to the scheme, the Central Government shall register the same and issue a
confirmation thereof to the companies.
(4) If the Registrar or Official Liquidator has any objections or suggestions, he may
communicate the same in writing to the Central Government within a period of thirty days:
Provided that if no such communication is made, it shall be presumed that he has no objection to
the scheme.
(5) If the Central Government after receiving the objections or suggestions or for any reason is
of the opinion that such a scheme is not in public interest or in the interest of the creditors, it
may file an application before the Tribunal within a period of sixty days of the receipt of the
scheme under sub-section (2) stating its objections and requesting that the Tribunal may
consider the scheme under section 232.
(6) On receipt of an application from the Central Government or from any person, if the
Tribunal, for reasons to be recorded in writing, is of the opinion that the scheme should be
considered as per the procedure laid down in section 232, the Tribunal may direct accordingly
or it may confirm the scheme by passing such order as it deems fit: Provided that if the Central
Government does not have any objection to the scheme or it does not file any application under
this section before the Tribunal, it shall be deemed that it has no objection to the scheme.
(7) A copy of the order under sub-section (6) confirming the scheme shall be communicated to
the Registrar having jurisdiction over the transferee company and the persons concerned and
the Registrar shall register the scheme and issue a confirmation thereof to the companies and
such confirmation shall be communicated to the Registrars where transferor company or
companies were situated.
(8) The registration of the scheme under sub-section (3) or sub-section (7) shall be deemed to
have the effect of dissolution of the transferor company without process of winding-up.
(9) The registration of the scheme shall have the following effects, namely:
(a) transfer of property or liabilities of the transferor company to the transferee company so that
the property becomes the property of the transferee company and the liabilities become the
liabilities of the transferee company;
(b) the charges, if any, on the property of the transferor company shall be applicable and
enforceable as if the charges were on the property of the transferee company;

(c) legal proceedings by or against the transferor company pending before any court of law shall
be continued by or against the transferee company; and
(d) where the scheme provides for purchase of shares held by the dissenting shareholders or
settlement of debt due to dissenting creditors, such amount, to the extent it is unpaid, shall
become the liability of the transferee company.
(10) A transferee company shall not on merger or amalgamation, hold any shares in its own
name or in the name of any trust either on its behalf or on behalf of any of its subsidiary or
associate company and all such shares shall be cancelled or extinguished on the merger or
amalgamation.
(11) The transferee company shall file an application with the Registrar along with the scheme
registered, indicating the revised authorised capital and pay the prescribed fees due on revised
capital: Provided that the fee, if any, paid by the transferor company on its authorised capital
prior to its merger or amalgamation with the transferee company shall be set-off against the fees
payable by the transferee company on its authorised capital enhanced by the merger or
amalgamation.
(12) The provisions of this section shall mutatis mutandis apply to a company or companies
specified in sub-section (1) in respect of a scheme of compromise or arrangement referred to in
section 230 or division or transfer of a company referred to clause (b) of subsection (1) of
section 232.
(13) The Central Government may provide for the merger or amalgamation of companies in
such manner as may be prescribed.
(14) A company covered under this section may use the provisions of section 232 for the
approval of any scheme for merger or amalgamation.
Section 234 of the Companies Act, 2013 - Merger or amalgamation of company with foreign
company.
(1) The provisions of this Chapter unless otherwise provided under any other law for the time
being in force, shall apply mutatis mutandis to schemes of mergers and amalgamations between
companies registered under this Act and companies incorporated in the jurisdictions of such
countries as may be notified from time to time by the Central Government: Provided that the
Central Government may make rules, in consultation with the Reserve Bank of India, in
connection with mergers and amalgamations provided under this section.
(2) Subject to the provisions of any other law for the time being in force, a foreign company,
may with the prior approval of the Reserve Bank of India, merge into a company registered
under this Act or vice versa and the terms and conditions of the scheme of merger may
provide, among other things, for the payment of consideration to the shareholders of the

merging company in cash, or in Depository Receipts, or partly in cash and partly in

Depository Receipts, as the case may be, as per the scheme to be drawn up for the purpose.
Explanation.For the purposes of sub-section (2), the expression foreign company means
any company or body corporate incorporated outside India whether having a place of business
in India or not.
Section 232 of Companies Act, 2013 (1) Where an application is made to the Tribunal (National Company Law Tribunal) under
section 230 for the sanctioning of a compromise or an arrangement proposed between a
company and any such persons as are mentioned in that section, and it is shown to the Tribunal
(a) that the compromise or arrangement has been proposed for the purposes of, or in
connection with, a scheme for the reconstruction of the company or companies involving merger
or the amalgamation of any two or more companies; and (b) that under the scheme, the whole or
any part of the undertaking, property or liabilities of any company (hereinafter referred to as the
transferor company) is required to be transferred to another company (hereinafter referred to as
the transferee company), or is proposed to be divided among and transferred to two or more
companies, the Tribunal may on such application, order a meeting of the creditors or class of
creditors or the members or class of members, as the case may be, to be called, held and
conducted in such manner as the Tribunal may direct and the provisions of sub-sections (3) to
(6) of section 230 shall apply mutatis mutandis
(3) The Tribunal, after satisfying itself that the procedure specified in sub-sections (1) and (2)
has been complied with, may, by order, sanction the compromise or arrangement or by a
subsequent order, make provision for the following matters, namely: (a) the transfer to the
transferee company of the whole or any part of the undertaking, property or liabilities of the
transferor company from a date to be determined by the parties unless the Tribunal, for reasons
to be recorded by it in writing, decides otherwise;
(f) where share capital is held by any non-resident shareholder under the foreign direct
investment norms or guidelines specified by the Central Government or in accordance with
any law for the time being in force, the allotment of shares of the transferee company to such
shareholder shall be in the manner specified in the order;

Foreign Direct Investment (FDI) in Private Limited Company:

Foreign direct investment in private limited company is considered under two routes:
-

FDI under Approval route.

FDI under Automatic route.

1. FDI under Approval route:

The Foreign Direct Investment in private limited company under approval route is not automatic
route of investment in the country and require prior approval of government. The approval
becomes necessary about the proposals that involves investment or some technical collaboration
with Indian ventures. The permission is granted when Foreign Investment Promotion Board
(FIPB) recommended it to government for approval.
2. Sectors Under Government Route:
FDI in activities not coated underneath the automated route need previous government approval.
Approval in any respect such proposals as well as composite proposals involving foreign
investment/foreign technical collaboration is granted at the recommendations of Foreign
Investment Promotion Board (FIPB).
3.

Mining and mineral separation

Defence Industry
Print Media
Airports
Satellites
Single Brand product retail trading
Pharmaceuticals
Tea Plantation
FDI Automatic Routes In India:
FDI in private limited company is allowed under the automatic route without prior
approval either of the Government or perhaps the Reserve Bank of India in all of
activities/sectors as per the consolidated FDI Policy, issued by the Government of India
from time to time.
4. Sectors Under Automatic Route
In pursuance of Governments persistence for early implementation of ones second
phase of the economic reforms research a view the strain liberalising the FDI regime, all
items/ activities are placed directly under the automated route for FDI/NRI and OCB
investment, except here:
5. All Proposals that require an Industrial Licence which includes
- The item requiring an Industrial Licence under the Industries Development and
Regulation Act 1951.
- Foreign investment being more than 24% in the equity capital of units manufacturing
items reserved for Small Scale Industries.
- All items which require an Industrial Licence in terms of the locational policy notified by
Government under the New Industrial Policy of 1991.
- All proposals in which the foreign collaborator has a previous venture / tie up in India.
- All proposals relating to acquisition of shares in an existing Indian company in favour of
a foreign/NRI/OCB investor.

All proposals falling outside notified sectoral policy/caps or under sectors in which FDI
is not permitted and /or whenever any investor chooses to make an application to the
FIPB and not to avail of the automatic route.

6. Procedure to be followed after investment is made for FDI in private limited company
under the Automatic Route or with Government approval:
A two-stage reporting procedure has to be followed:
On receipt of share application money, within 30 days of receipt of share application
money/amount of consideration from the non-resident investor, the private limited company is
required to report to the Foreign Exchange Department, Regional Office concerned of the
Reserve Bank of India, under whose jurisdiction its Registered Office is located, the Advance
Reporting Form, containing the following details :
-

Name and address of the foreign investor/s;

Date of receipt of funds and the Rupee equivalent;
Name and address of the authorised dealer through whom the funds have been received;
Details of the Government approval, if any; and
KYC report on the non-resident investor from the overseas bank remitting the amount of
consideration.

The private limited company has to ensure that the shares are issued within 180 days from the
date of inward remittance which otherwise would result in the contravention / violation of the
FEMA regulations.
7. Upon issue of shares to non-resident investors:
Within 30 days from the date of issue of shares, a report in Form FC-GPR- PART A together with
the following documents should be filed with the Foreign Exchange Department, Regional
Office concerned of the Reserve Bank of India.
-

Certificate from the Company Secretary of the company accepting investment from
persons resident outside India certifying that:
The private limited company has complied with the procedure for issue of shares as laid
down under the FDI scheme.
The investment is within the sectoral cap / statutory ceiling permissible under the
Automatic Route of the Reserve Bank and it fulfills all the conditions laid down for
investments under the Automatic Route,
(Or)
Shares have been issued in terms of SIA/FIPB approval No. dated
(enclose the FIPB approval copy).

Certificate from Statutory Auditors/ SEBI registered Merchant Banker / Chartered

Accountant indicating the manner of arriving at the price of the shares issued to the
persons resident outside India.

NBFCs

What is a Non-Banking Financial Company (NBFC)?

A Non-Banking Financial Company (NBFC) is a company registered under the Companies Act, 1956 engaged
in the business of loans and advances, acquisition of shares/stocks/bonds/debentures/securities issued by
Government or local authority or other marketable securities of a like nature, leasing, hire-purchase, insurance
business, chit business but does not include any institution whose principal business is that of agriculture
activity, industrial activity, purchase or sale of any goods (other than securities) or providing any services and
sale/purchase/construction of immovable property. A non-banking institution which is a company and has
principal business of receiving deposits under any scheme or arrangement in one lump sum or in installments
by way of contributions or in any other manner, is also a non-banking financial company (Residuary nonbanking company)
Is it necessary that every NBFC should be registered with RBI?
In terms of Section 45-IA of the RBI Act, 1934, no Non-banking Financial company can commence or carry on
business of a non-banking financial institution without a) obtaining a certificate of registration from the Bank and
without having a Net Owned Funds of 25 lakhs ( Two crore since April 1999). However, in terms of the
powers given to the Bank, to obviate dual regulation, certain categories of NBFCs which are regulated by other
regulators are exempted from the requirement of registration with RBI viz. Venture Capital Fund/Merchant
Banking companies/Stock broking companies registered with SEBI, Insurance Company holding a valid
Certificate of Registration issued by IRDA, Nidhi companies as notified under Section 620A of the Companies
Act, 1956, Chit companies as defined in clause (b) of Section 2 of the Chit Funds Act, 1982,Housing Finance
Companies regulated by National Housing Bank, Stock Exchange or a Mutual Benefit company.
What are the requirements for registration with RBI?
A company incorporated under the Companies Act, 1956 and desirous of commencing business of non-banking
financial institution as defined under Section 45 I(a) of the RBI Act, 1934 should comply with the following:
i. it should be a company registered under Section 3 of the companies Act, 1956
ii. It should have a minimum net owned fund of 200 lakh. (The minimum net owned fund (NOF) required for
specialized NBFCs like NBFC-MFIs, NBFC-Factors, CICs is indicated separately in the FAQs on specialized
NBFCs)
What is the procedure for application to the Reserve Bank for Registration?
The applicant company is required to apply online and submit a physical copy of the application along with the
necessary documents to the Regional Office of the Reserve Bank of India. The application can be submitted
online by accessing RBIs secured websitehttps://cosmos.rbi.org.in . At this stage, the applicant company will
not need to log on to the COSMOS application and hence user ids are not required. The company can click on

CLICK for Company Registration on the login page of the COSMOS Application. A window showing the Excel
application form available for download would be displayed. The company can then download suitable
application form (i.e. NBFC or SC/RC) from the above website, key in the data and upload the application form.
The company may note to indicate the correct name of the Regional Office in the field C-8 of the Annex-I
dentification Particulars in the Excel application form. The company would then get a Company Application
Reference Number for the CoR application filed on-line. Thereafter, the company has to submit the hard copy
of the application form (indicating the online Company Application Reference Number, along with the
supporting documents, to the concerned Regional Office. The company can then check the status of the
application from the above mentioned secure address, by keying in the acknowledgement number.
What are the essential documents required to be submitted along with the application form to the
Regional Office of the Reserve Bank?
The application form and an indicative checklist of the documents required to be submitted along with the
application is available atwww.rbi.org.in Site Map NBFC List Forms/ Returns.
What are the different types/categories of NBFCs registered with RBI?
NBFCs are categorized a) in terms of the type of liabilities into Deposit and Non-Deposit accepting NBFCs, b)
non deposit taking NBFCs by their size into systemically important and other non-deposit holding companies
(NBFC-NDSI and NBFC-ND) and c) by the kind of activity they conduct. Within this broad categorization the
different types of NBFCs are as follows:
I. Asset Finance Company (AFC) : An AFC is a company which is a financial institution carrying on as its
principal business the financing of physical assets supporting productive/economic activity, such as
automobiles, tractors, lathe machines, generator sets, earth moving and material handling equipments, moving
on own power and general purpose industrial machines. Principal business for this purpose is defined as
aggregate of financing real/physical assets supporting economic activity and income arising therefrom is not
less than 60% of its total assets and total income respectively.
II. Investment Company (IC) : IC means any company which is a financial institution carrying on as its principal
business the acquisition of securities,
III. Loan Company (LC): LC means any company which is a financial institution carrying on as its principal
business the providing of finance whether by making loans or advances or otherwise for any activity other than
its own but does not include an Asset Finance Company.
IV. Infrastructure Finance Company (IFC): IFC is a non-banking finance company a) which deploys at least 75
per cent of its total assets in infrastructure loans, b) has a minimum Net Owned Funds of 300 crore, c) has a
minimum credit rating of A or equivalent d) and a CRAR of 15%.
V. Systemically Important Core Investment Company (CIC-ND-SI): CIC-ND-SI is an NBFC carrying on the
business of acquisition of shares and securities which satisfies the following conditions:(a) it holds not less than 90% of its Total Assets in the form of investment in equity shares, preference shares,
debt or loans in group companies;

(b) its investments in the equity shares (including instruments compulsorily convertible into equity shares within
a period not exceeding 10 years from the date of issue) in group companies constitutes not less than 60% of its
Total Assets;
(c) it does not trade in its investments in shares, debt or loans in group companies except through block sale
for the purpose of dilution or disinvestment;
(d) it does not carry on any other financial activity referred to in Section 45I(c) and 45I(f) of the RBI act, 1934
except investment in bank deposits, money market instruments, government securities, loans to and
investments in debt issuances of group companies or guarantees issued on behalf of group companies.
(e) Its asset size is 100 crore or above and
(f) It accepts public funds
VI. Infrastructure Debt Fund: Non- Banking Financial Company (IDF-NBFC) : IDF-NBFC is a company
registered as NBFC to facilitate the flow of long term debt into infrastructure projects. IDF-NBFC raise
resources through issue of Rupee or Dollar denominated bonds of minimum 5 year maturity. Only Infrastructure
Finance Companies (IFC) can sponsor IDF-NBFCs.
VII. Non-Banking Financial Company - Micro Finance Institution (NBFC-MFI): NBFC-MFI is a non-deposit
taking NBFC having not less than 85% of its assets in the nature of qualifying assets which satisfy the following
criteria:
a. loan disbursed by an NBFC-MFI to a borrower with a rural household annual income not exceeding
1,00,000 or urban and semi-urban household income not exceeding 1,60,000;
b. loan amount does not exceed 50,000 in the first cycle and 1,00,000 in subsequent cycles;
c. total indebtedness of the borrower does not exceed 1,00,000;
d. tenure of the loan not to be less than 24 months for loan amount in excess of 15,000 with prepayment
without penalty;
e. loan to be extended without collateral;
f. aggregate amount of loans, given for income generation, is not less than 50 per cent of the total loans given
by the MFIs;
g. loan is repayable on weekly, fortnightly or monthly instalments at the choice of the borrower
VIII. Non-Banking Financial Company Factors (NBFC-Factors): NBFC-Factor is a non-deposit taking NBFC
engaged in the principal business of factoring. The financial assets in the factoring business should constitute
at least 50 percent of its total assets and its income derived from factoring business should not be less than 50
percent of its gross income.

IX. Mortgage Guarantee Companies (MGC) - MGC are financial institutions for which at least 90% of the
business turnover is mortgage guarantee business or at least 90% of the gross income is from mortgage
guarantee business and net owned fund is 100 crore.
X. NBFC- Non-Operative Financial Holding Company (NOFHC) is financial institution through which promoter /
promoter groups will be permitted to set up a new bank .Its a wholly-owned Non-Operative Financial Holding
Company (NOFHC) which will hold the bank as well as all other financial services companies regulated by RBI
or other financial sector regulators, to the extent permissible under the applicable regulatory prescriptions.