11 Companies Incorporated Outside India
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1 11 Companies Incorporated Outside India 11.0 Foreign Companies Companies which are incorporated in foreign countries but establish place of business in India are described as foreign companies. They have to comply with certain provisions of the Companies Act, 1956 and Companies Act, According to section 379 of the Companies Act, 2013, where not less than 50% of the paid-up share capital, whether equity or preference or partly equity and partly preference, of a foreign company is held by one or more citizens of India or by one or more companies or bodies corporate incorporated in India, or by one or more citizens of India and one or more companies or bodies corporate incorporated in India, whether singly or in the aggregate, such company shall comply with the provisions of this Chapter and such other provisions of this Act as may be prescribed with regard to the business carried on by it in India as if it were a company incorporated in India Documents, etc., to be Delivered to the Registrar by Foreign Companies (Section 592) Foreign companies which, after April 1, 1956 establish a place of business in India must, within 30 days, from the date, file with the Registrar having jurisdiction over New Delhi (Section 597) and also with the Registrar of the State in which the principal place of business of the company is situated: (a) a certified copy of the charter, statutes or memorandum and articles of the company or other instruments constituting or defining the constitution of the company, and if the instrument is not in English language certified translation thereof; (b) the full address of the registered or principal office of the company; (c) a list of the directors and secretary of the company, containing the particulars mentioned in Section 592(2) relating to giving name in full, usual residential address, nationality of origin, his business and particulars of other directorship held by him. (d) the name and address or the names and addresses of some one or more persons resident in India authorised to accept on behalf of the company service of process and any notices or other documents required to be served on the company, and (e) the full address of the office of the company in India, which is to be deemed its principal place of business in India.
2 Companies Incorporated Outside India 11.2 Under Rule 16 of the Companies (Central Government s) General Rules and Forms, 1956, a copy of any charter, statutes, memorandum and articles, or other instrument constituting or defining the constitution of a company must be duly certified to be true copy. It must be certified, in the case of a company incorporated outside the Commonwealth by (a) an official of the Government to whose custody the original of the document is committed or (b) a Notary of such country or (c) an officer of the company. The signature and seal of the official mentioned in (a) or (b) is required to be authenticated by diplomatic and Consular Officer empowered in this behalf under Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948, or, where there is no such officer by any one of the officials mentioned in Section 6 of the Commissioner of Oaths Act, 1889 or in any Act amending the same). The certificate of the officer of the company referred to above is required to be signed before a person having authority to administer an oath as provided by Section 3 of the Diplomatic and Consular Officers (Oath and Fees) Act or as the case may be by Section 3 of the Commissioner of Oaths Act, (the status of the person administering the oath in the latter case being authenticated by any official specified in Section 6 of the Commissioner of Oaths Act, or in any Act amending the same). If the company is incorporated in any part of the Commonwealth, the copy of the above mentioned document must be certified as true copy by: (a) an official of the Government to whose custody the original of the document is committed, (b) a Notary in that part of the Commonwealth, or (c) an officer of the company, on oath before a person having authority to administer oath in that part of the Commonwealth. Under Rule 17 (ibid), the English translation of the document to be filed with the Registrar in pursuance of Sections 592, 593 or 605 must be certified to be correct. If the translation is made outside India it shall be authenticated by the signature and seal (if any) of the official having custody of the original or of a Notary of the country (or part of the country) where the company is incorporated. If the translation is made within India, it shall be authenticated by an advocate, attorney or pleader entitled to appear before High Court or by an affidavit of the person having, in the opinion of the Registrar, an adequate knowledge of the language of the original and of English. The documents pursuant to Section 592 are to be delivered in Form No. 44. The Ministry of Corporate Affairs vide General Circular No. 6/2011 dated 8 th March, 2011 has simplified the process of establishment of principal place of business in India by Foreign Companies for reduction in time taken by Registrar of Companies by recommending the following procedure: 1. There shall be one more category, i.e., Incorporation Forms (Form 1A, Form 37, 39, 44 and 68) which will have the highest priority for approval. Here, the expression place of business includes a share transfer or registration office. [Section 386(c) of the Companies Act, 2013]
3 11.3 Corporate and Allied Laws 11.2 Return to be Delivered to Registrar Where Documents are Altered (Section 593) Under Section 593 of the Act, if any alteration is made or occurs in: (a) the charter, statute or memorandum and articles of a foreign company or other instruments constituting or defining the constitution of a foreign company, or (b) the registered principal office of a foreign company; or (c) the directors or secretary of a foreign company, or (d) the name or address of any person authorised to accept service on behalf of a foreign company; or the directors or secretary of a foreign company; or (e) the principal place of business of the company in India; then the company shall within the prescribed time deliver to the Registrar for registration a return containing the prescribed particulars of the alteration. Rule 18 of the Companies (Central Government s) General Rules and Forms, 1956 has prescribed the time, within which the particulars of alteration are to be filed. The notice of alteration in respect of items (a), (b) or (c) above, must be communicated to the Registrar on or before 31 st January of the year following the year in which alteration was made or occurred, that in respect of item (d) or (e) within one month from the date of alteration. Here, the expression Director, in relation to a foreign company, includes any person in accordance with whose directions or instructions the Board of Directors of the company is accustomed to act. [Section 386(b) of the Companies Act, 2013] 11.3 Accounts of Foreign Company (Section 594) Under section 594(1), every foreign company, unless exempted by Central Government, in every calendar year must: (a) Make out a balance sheet, and profit and loss account relating to his India Business in such form containing such particulars and including or having annexed thereto such documents (including in particular, document relating to every subsidiary of the foreign company) as under the provisions of the Act it would, it had been a company within the meaning of the Act, have been required to make out and, lay before the company in general meeting; and (b) Deliver a copy of those documents to the Registrar. If any of the above document is not in English language, there shall be annexed to it a certified translation thereof. (Sub-section 2) Under Section 594(3), every foreign company shall send to the Registrar along with the documents required to be delivered to him under sub-section (1), a copy of a list in prescribed form of all places of business established by the company in India as at the date with reference to which the balance sheet referred to in sub-section (1) is made out.
4 Companies Incorporated Outside India Display of name, etc., of foreign company. According to section 382 of the Companies Act, 2013, every foreign company shall (a) conspicuously exhibit on the outside of every office or place where it carries on business in India, the name of the company and the country in which it is incorporated, in letters easily legible in English characters, and also in the characters of the language or one of the languages in general use in the locality in which the office or place is situate; (b) cause the name of the company and of the country in which the company is incorporated, to be stated in legible English characters in all business letters, billheads and letter paper, and in all notices, and other official publications of the company; and (c) if the liability of the members of the company is limited, cause notice of that fact (i) to be stated in every such prospectus issued and in all business letters, billheads, letter paper, notices, advertisements and other official publications of the company, in legible English characters; and (ii) to be conspicuously exhibited on the outside of every office or place where it carries on business in India, in legible English characters and also in legible characters of the language or one of the languages in general use in the locality in which the office or place is situate Service on foreign company According to section 383 of the Companies Act, 2013, any process, notice, or other document required to be served on a foreign company shall be deemed to be sufficiently served, if addressed to any person whose name and address have been delivered to the Registrar under section 380 of the Companies Act, 2013, and left at, or sent by post to, the address which has been so delivered to the Registrar or by electronic mode Office where Documents to be Delivered (Section 597) Any documents which are required to be delivered by the foreign company to the Registrar - shall be delivered to the Registrar having jurisdiction over New Delhi and also to the Registrar of the State in which the principal place of business of the company is situated. Where a foreign company ceases its place of business in India- there it must give notice of the fact to the Registrars. The date on which such notice is given, the obligation of the company to deliver any document to the Registrar shall cease.
5 11.5 Corporate and Allied Laws 11.7 Penalties Section 598 prescribes a penalty for the company and every officer or agent of the company for non-compliance with any of the requirements mentioned above, extending to Rs. 10,000 and in the case of a continuing offence, with an additional fine extending to Rs. 1,000 per day, during which the default continues Effect of Company s Failure to Comply with the Provisions of Part XI of the Companies Act, 1956 Relating to Companies Incorporated Outside India Under Section 599 if a foreign company fails to comply with any of the foregoing provisions of Part XI, such a failure will not affect the validity of any contract, dealing or transaction entered into by the company, it will be liable to be sued in respect thereof. But it cannot bring any suit, claim any set off, make any counter-claim or institute any legal proceeding in respect of any such contract, dealing or transaction until it has complied with the provisions of that Part Registration of Charges, Appointment of Receiver and Books of Account (Section 600) The provision of Part V of the Companies Act (Sections 124 to 145 shall apply mutatis mutandis to: (a) charges on properties in India, which were created by foreign company after ; and (b) charges on property in India which is acquired by any foreign company after Moreover, where a section is created or the completion of the acquisition of the property takes place outside India, even provisions of Section 125(5) and the proviso to 127(1) shall have effects as if the property (wherever situated) were situated outside India. The provisions of Section 118 (pertaining to the right of debenture holders and members to have copies of trust-deed for securing any issue of debentures of the company) shall apply mutatis mutandis to a foreign company [sub-section (2)]. The provisions of Section 209 (pertaining to books to be kept by a company) shall be applicable to a foreign company to the extent of requiring it to keep at its principal place of business in India, the books of account mentioned in Section 209 with regard to moneys received and spent, sales and purchases made, and assets and liabilities in the course of or in relation to its business in India [sub-section (3)(a)]. On and from the commencement of the Companies (Amendment) Act, 1974 (i.e ), several other sections of the Act became applicable to foreign companies. The provisions of Section 159 (relating to Annual Return to be made by company having a share capital) shall, subject to such modifications or additions as may be made therein by the rules made under this Act, apply to a foreign company which has an established place of business in India, as they apply to a company incorporated in India [sub-section (3)(b)(i) as inserted by the aforesaid Amendment Act]. Further, on and from , the provisions of Sections 209, 209A, 233A and 233B (relating to books of account to be kept by an indigenous company; inspection of books of account, etc., under Section 209A, special audit; audit of cost accounts in certain cases) as well as Sections 234 to 246 (relating to Registrar s power to call for
6 Companies Incorporated Outside India 11.6 information or explanation; seizure of document by Registrar, investigation of company s affairs on application by members or report by Registrar; application by members to be supported by evidence any power to call for security; investigation of company s affairs in other cases; prohibition of a firm, body corporate or association from being appointed as inspectors; power of inspectors to carry out investigation into the affairs of related companies or associates, etc., production of documents and evidence; seizure of documents by inspector; Inspector s report; prosecution, application for winding-up of company or an order under Section 397 or 398; proceedings for recovery of damages or property; expenses of investigation and inspectors report to be evidence) shall so far as may apply to the Indian business of a foreign company as they apply to company incorporated in India [sub-section (3)(ii) as inserted a new by the 1974 Amendment Act]. In applying the aforementioned Sections (viz., 124 to 145, 118 & 209), the Registrar and the registered office of the foreign company referred to in those Sections, shall be the Registrar having jurisdiction over New Delhi and its principal place of business in India respectively. Thus it can be inferred from the above discussions of the provisions that Companies (Amendment) Act, 1974, aims to bring foreign companies into the ambit of the provisions applicable to Indian companies. N.B. The prescribed form for the purpose of Section 600 is Form No. 55 of the Companies (Central Government s) Rules and Forms, Fees for Registration of Documents Such fees as may be prescribed have to be paid to the Registrar for registering any documents that are required to be filed with the Registrar (Section 601). Rule 20 of the Companies (Central Government s) Rules prescribes the fee (i.e., 5,000) for registration of any document relating to a foreign company Registration of Prospectus Section 605 declares that no person shall issue, circulate or distribute in India any prospectus offering for subscription the shares in or debentures of, a foreign company incorporated or to be incorporated outside India irrespective of whether or not it has established or will establish place of business in India, unless: (i) before its issue, circulation or distribution of the prospectus in India a copy thereof, certified by the chairman and two other directors of the company as having been approved by a resolution of the managing body has been delivered for registration to the Registrar; (ii) the prospectus states on the face of it that a copy thereof has been so delivered; and (iii) there is endorsed on or attached to the copy: (a) the consent of an expert, if any, to the issue of the prospectus as required by Section 604(b) a copy of any contract needed by clause 16 of Schedule II to be stated in the prospectus or, in the case of a contract not reduced into writing, a memorandum giving full particulars thereof; and a statement setting out the adjustments referred to in clause 32 of the same Schedule. Likewise,
7 11.7 Corporate and Allied Laws under sub-section (3) of Section 603, a person is prohibited from issuing to any one in India a form of application for shares in, or debentures of such a company or intended company, unless the form is issued along with the prospectus. Students may note that: (i) a prospectus also comprises the document which according to Section 64, is deemed to be a prospectus and (ii) under Section 608(3) the expression prospectus, shares and debentures, in reference to foreign companies have the same meaning as when used in relation to a company incorporated under the Act Requirements as Regards Prospectus In so far as foreign companies are concerned the provisions as regards prospectus requirements have been brought almost in line with the provisions applicable to companies incorporated in India, subject to minor modifications. Under Section 603, the prospectus to be issued by an existing or intended foreign company in India must be dated and contain the following particulars: (a) the instrument constituting or defining the constitution of the company; (b) the enactments or provisions under which the company was incorporated; (c) the address of the place in India where the said instruments, enactments etc., translation thereof in English, if they are in some other foreign language, can be inspected; (d) the date on which and the country in which the company was incorporated; and (e) whether there is a place of business in India, and if so, the address of its principal office. The provisions contained in (a), (b) and (c) above, shall not be applicable, if the prospectus is issued more than 2 years after the company had become entitled to commence business. As in the case of the prospectus of a company incorporated in India, the prospectus of a foreign company too, must contain the matters laid down in Part I of Schedule II and set out the report specified in Part II of the Schedule subject always to the provisions of Part III of the Schedule Offer of Indian Depository Receipts According to section 605A Central Government is empowered to make Companies (Issue of Indian Depository Receipts) Rules, 2004 applicable on the companies incorporated outside India to raise funds from India by issue of Indian Depository Receipts (IDRs). This new section has been inserted by the Companies (Amendment) Act, Penalty for contravention of sections 603, 604, 605 & 605A Furthermore, the penalty prescribed for contravention of any of the provisions contained in Sections 603, 604,605 & 605A shall be punishable with imprisonment for a term extending up to 6 months, or fine up to ` 50,000 or both (Section 606). Section 62 relating to civil liability for mis-statement in a prospectus is applicable also to a prospectus issued, circulated or distributed in India by a foreign company, with the substitution for references in Sections 62 to Section 60 of this Act, of reference to Section 604 thereof (Section 607).
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