Indian Business Law Essay

Evaluation of the Indian political system

India is a democratic independent republic which has a government that is formed by a parliamentary system. The Indian constitution was put into force in November 1950 but had been adopted by the Constituent Assembly in November 1949.

Executive branch

The President of India serves as both the absolute commander of the armed forces and also as the constitutional head. Members of an Electoral College that comprises of members from the Houses of Parliament and Legislative Assemblies of the states are empowered to elect the President. The vice president is an Ex-officio Chairman of the Raiya Sabha and oversees its procedures and his term in office is for five years.

Legislative branch

In the Indian political system, Parliament is the legislative arm of the Union and it comprises of the President, Upper House and Lower House. All bills that are to be passed into law entail the approval of the Upper House and the Lower House but in the case of money bills, the Lower House has major authority.

States

According to the Indian political system, the legislative assembly and the legislative council are the two key governing bodies in states. In India, the government in the state is formed by the political party that has received majority votes after direct elections have occurred. The country has 28 states and a sum of seven union territories which are ruled by a governor in place of the President.

The Union Territory of Delhi was administered by a central government headed by an officer appointed by the President until 1992 where a Constitutional amendment was made and it is currently known as the National Capital Territory of Delhi.

Political parties in India

The Indian political system is described as a multi-party democracy whereby the country has many political parties. Khindria gives a review of the Indian political system by analyzing political parties in India where a political party is classified as either a National Party or a State Party. A National Party is a political party that has gained recognition in more than four states and is the ruling party or an opposing party to the relevant states. Khindria further adds that the prominent National Parties in India include; The Congress, Bharrtitya Janata Party, Janata Dal and Communist Party of India paly a significant influence on the day to day running of businesses.

Khindria illustrates that the Indian political system has had a great influence on the Indian business environment both on a positive and negative aspect. A positive aspect of the Indian political system business is the ease of acquiring business licenses thus leading to rampant increase in business establishments. Through the amendment of the constitution, favorable policies that encourage business operations in the country have been passed; this has led to rise in the Indian economy which is the third largest economy in the world.

Khindria also notes that the in the Indian political system, there is the provision of Double Taxation Avoidance Agreement (DTAA) which creates a good flourishing business environment especially for foreign investors.

Indian political system has also affected the business environment in India negatively since it has led to rise in corruption. This factor discourages business establishment in the country and most of all it scares off foreign investors. Khindria expresses the negative impact that the Indian political system has had on business environment where it has not implemented effective measures to curb money-laundering in the country. This aspect of money laundering affects the overall economy of India and as a result doing business in India becomes more of a disadvantage to the entrepreneurs.

According to the book ‘Business Law’ by Khindria, the Indian political system has negatively influenced the business environment in India in the circumstances where the government’s spending priorities are unfavorable hence the country is ranked 23 in the Public Debt standings which has adversely influenced the business environment negatively.

Influence of the Indian federal constitution on the Indian business environment

The Indian federal constitution plays a significant role in governing how businesses, both local and foreign are run. India is a very large country and has a very complex structure of businesses both local and foreign, due to its conducive business environment, India has very many businesses both locally owned and foreign resulting in its rapid growing economy.

The Indian chamber of commerce through powers vested in it by the Indian federal Constitution, and in conjunction with other government bodies has set up frameworks that govern the way business entities carry out their obligations. This influence can be seen in the various forms through which the government through the constitution discourages or even prohibit foreign firms setting up independent operations in India without adhering to the stipulated laws. These stipulated laws usually encourage the flourishing of local companies and prevents over dominance of foreign companies over the local ones.

Thus, the constitution has laid down laws and regulations that encourage joint ventures between foreign companies and local companies. There are several reasons as to why the constitution encourages this joint ventures as opposed to independent ventures by the foreign companies, they include; India’s desire to protect its foreign currency reserves, desire to reduce foreign influence on is local economy and the desire to tap the expertise of foreign companies into local companies in order to boost the local industries through joint ventures with the foreign companies.

In some circumstances, the Indian federal constitution has made it compulsory for a foreign company to partner with a local company in cases where the foreign company wants to venture into a business venture that the government or constitution considers being of national interest for example, where a company wants to engage in sales or manufacturing of ammunition (Cuts, 2007, 17).

Through joint ventures the companies from both countries get a chance to learn from each other and also help in the transfer of technology from one country to the next and also, through this same joint ventures both companies pool their resources together and by so, they are able to raise more capital than either company could have raised on its own.

In addition, the constitution has made a provision that provides close control for joint ventures over marketing and other business operations and thus reduces the risk of asset expropriation since a local firm is involved (Ramesh,2005, 51). These laws have attracted smaller local companies to partner with large foreign owned companies as the law lays out clear legislations that outline the functions and obligations of each interested stake holders hence encouraging a sustainable business partnership.

India has attracted investors for quite a while due to its developed market, human resource and conducive business laws. Nevertheless, the Federal Constitution has fallen short in addressing issues pertaining to financial reporting therefore acquiring a firm in India is quite complicated because Indian companies have got less developed corporate governance processes. This is so because most firms in India are family businesses with complicated ownership and decision making structures.

When a foreign firm is interested in acquiring or partnering with a local firm in India there are various regulatory issues that are spelt out the Federal constitution that govern the entire process due to the fact that India’s regulatory environment is very dynamic and ever changing.

Another key issue that the Federal constitution governs is India’s tax laws thus any foreign company or investor should be well informed on India’s tax laws. The constitution lays a great influence on goods and services tax and the newly suggested direct tax code all which will have an effect on the joint venture or the acquisition by the investors. This suggested direct tax code is set to take effect in April 2012 whereas the goods and services tax is due to be introduced this year. The foreign investor should be interested in the incentives and tax relief that are available and the foreign company/investor has to be extremely careful not to assume any liabilities that do not concern the business being acquired.

Though the constitution has laid out several laws that govern business entities, it has not been able to curb the numerous loop holes that have formed corridors of corruption a careful analysis shows that the business owners/partners have engaged in unethical business practices whereby they used investors funds meant for business purposes in other uncalled for activities and as such the foreign investor must be extremely careful. Investors will thus need to scrutinize all applicable environmental regulations that are applicable so as to adhere to them. Inspection of all environmental licenses and labor laws will also be necessary in order for the investors to accurately comply with them as stipulated by the Federal constitution.

Due diligence focuses on particulars of any pending and imminent claims by the tax authority and it shows that before any merger or acquisition takes place, the companies involved should have acted in accordance to all the tax regulations and laws. It exposes any information of income tax that was not paid in time to the central government which had been withheld at the source by the company thus due diligence examines any special tax system (Lexis, 2005: 52).

Any foreign company that is interested in investing in India is often keen to observe with great concern the minister for finance when he/she is presents the annual budget before the parliament. Particularly, the investors are interested in the finance bill where adjustments on direct taxes are made by the government. In India, the Federal constitution through the Indian income tax Act, 1961 governs the provision of Indian income tax. Foreign investor’s tax liability is mainly dependant on the Double Taxation Avoidance Agreement (DTAA) between India and its home country. Hence the foreign investors are taxed through any income that they receive through their business ties in India or from any other Indian sources.

As seen in the DIT vs. Morgan Stanley & Co a clear definition of a fixed and permanent establishment had to be outlined. As back office operations do not fall within ambit of PE as defined in Article 5 (1) but falls in the excluding clause of Article 5 (3) it does not constitute an agency PE; It is clear that any agreement made between the foreign investor and the local firm will be seriously scrutinized such that there are no loopholes which would otherwise lead to India losing out some revenue in form of tax. On the other hand, the foreign investor will want to take advantage of any tax relief they enjoy as a permanent establishment (Pantri, 2007: 43).

In another case CIT Vs Hyundai Heavy Industries Co Ltd, it was held that; the one being assessed, a non-resident foreign company incorporated in South Korea had entered into an agreement with ONGC for designing, fabricating, hook-up and commissioning of South Bassein Field Central Complex Facilities in Bombay High. The contract was inform of two sections, one was for fabrication of the platform and the other was installation and commissioning of the said platform in South Bassein Field.

The individual being assessed had filed the return of income for the A.Ys. 1987-88 and 1988-89 declaring nil income on the grounds that it did not have a permanent establishment in India and therefore it was not eligible to tax in India; that its Indian operations consisting of installation and commissioning of the platform got completed in less than nine months; that it was entitled to exemption under Article 7 of the DTAA. In the alternative, it was contended that the contract was divisible into two types of operations — one being design, fabrication, etc. in Korea (Korean operations) and the other consisting of installation in India (Indian operations), and therefore, any income arising from fabrication in Korea was not eligible to taxation in India.

These contentions were not accepted at the assessment stage and the Assessing Officer took the view that the contract was not divisible, the same was in respect to the Turkey project for a lump-sum price and part of the profit arising from the Korean operations which was also taxable in India. Accordingly, he estimated the net profit of the person being assessed at 20% of the gross receipt. Consequently, he taxed the entire revenue relatable to the Indian operations and 2% of the contract revenue in respect of the Korean operations.

The Commissioner of Income-tax (Appeals) held that the activity of designing and fabrication and the activity of installation and commissioning of the platforms constituted one integrated activity and the contract was indivisible for the purpose of attributing the profits to the permanent establishment in India. The Commissioner of Income-tax (Appeals), however taxed the profits attributed to the permanent establishment at the rate of 10% of the payment received on the basis prescribed in Section 44BB as also under Inst. No. 1767, dated 1-7-1987.

The receipt on Korean operations was taxed at 1%. The Tribunal held that the contract in question was a divisible contract. According to the Tribunal, the work of fabrication in Korea was separate from the work of installation and commissioning platform in India. The fabricated platform was handed over to ONGC in Korea in September, 1987 and this was before coming into existence of the permanent establishment in India.

As such, only the income from Indian operations was attributable to the permanent establishment, which alone was taxable in India. The tribunal also held that the department was right in invoking best-judgment assessment. The tribunal, however, held that the profits should be worked out at the rate of 3% and not at the rate of 10% as done by the CIT. The High Court dismissed the appeal filed by the department. On further appeal, the Supreme Court held that the profits from the Korean operations (designing and fabrication) arose outside India.

It is evident that any contract that a foreign investor will get into with a local firm (Indian) is binding on both parties and hence there should be no ambiguous clause and that everything should be water tight and explained (Minhut, 2011: 18).

Competition between foreign owned companies and local companies

It is advisable for any company that wants to venture into India as a business unit to structure it self according to India’s business law. Therefore on behalf of the foreign company I represent, there are a number of issues I would like to take into consideration in order for my company to successfully enter the Indian business environment.

It is advisable the company to structure its investment bearing in mind that there are a numbers of requirements that should be met. The Indian government has put in place laws, policies and frameworks that govern how a foreign owned business is to operate in Indian and the laws and requirements that it has to comply with before it can be given a license to operate or continue to operate.

One of the key issues that the Indian government is keen with is ensuring that foreign owned companies do not compete with local owned/established business due to the adverse effects the issue would have on both the economy and the population. In order to address this issue, the Indian government set up a policy to efficiently address the issue which was the Competition Act, 2002 that was passed by the Parliament in the year 2002; it was subsequently amended by the Competition (Amendment) Act, 2007. It is no doubt that competition is good for the economy, however such competition should be checked to ensure that it is healthy. India’s competition law, policies and frameworks are relatively new concepts which have not yet taken a deep root in the business environment unlike in the developed countries.

With this in mind, the Indian government established a competition watchdog that was responsible in ensuring that the competition between foreign owned companies and the local ones was healthy and the foreign companies didn’t exact dominance over the local ones thereby choking them out of business, this watch dog was known as the Competition Commission Of India. The Indian competition law has two core matters that it address, they include:

• a. establishing a set of laws and regulations that enhance completion in both local and in national markets;
• b. regulations that curb anti competitive business practices and un warranted government interventions.

Therefore, in order for the laws to effectively address competition, it is further divided into various policies targeting different type of business, as the company I represent is a foreign manufacturing company, it falls under the Industrial policy. Under this policy the company will have to adhere to licensing requirements, limitations on capacities or dominance on foreign owned expertise tie-ups, laws of the geographical location of the plant and the reservation of the Industry towards small scale/ local industries.

Under the business law, a Limited company ought to have directors, the Indian business laws ensures that a foreign company should be managed with not less than two directors and this investment will adhere to the Companies Act1956. In addition once given the green light, the company ought to set up a branch in form of an office in India. The office can either be a liaison, project or a side office. There are regulations and requirements which are provided by the Foreign Exchange Management Act 1999(FEMA) which are to be followed by the foreign investment company. Where the company is registered in pursuant to the Corporations Act 2001 (Cth).

Indian Competition Act 2002 rules out agreements which are prone to cause adverse effects on competition in Indian markets and it defines a cartel as, “Cartel to include an association of producers, sellers, distributors, traders or service providers who ,by agreement amongst themselves, limit, control or attempt to control the production, distribution, sale or price of, or trade in goods or provisions of services.”

Indian competition act 2002

In the prohibition of anti-competitive agreements, the manufacturing company should not agree with another company that is involved in the same line of production since this will be deduced to result to in a negative effect on competition in India especially if it:

1. Decides on sales prices either openly or obliquely
2. Controls the rate of production and the production output
3. Straightforwardly results to an outcome in collusive bidding.

These are some of the actions the foreign company should avoid so as not to collide with the Indian law courts but at the same time they protect the foreign investors’ interests. In the Indian law there are Acts that are termed as abusive to dominance of a particular company and a couple of them are; limitation of production, pricing their products unfairly, denying market access for other companies and concluding contracts prior to complementary obligations.

Taxation

Foreign investors enter the Indian business environment through various ways; as a foreign corporation in the structure of a liaison agency/representative bureau, a venture office and a division office by registering themselves with Registrar of Companies (ROC) in 30 days of putting up a place of commerce in India or as an Indian corporation in the structure of a combined Venture and completely owned subsidiary. In addition the company will have to seek the approval of Reserve Bank of India which is requisite for taxation basis.

For taxation reasons a foreign company’s nationality is decided in accordance to where the “core operations” take place. Since the company is planning on establishing a manufacturing facility in India and it is in India where its large operations will be carried out, then it will be taxed according to the Indian policy. This company shall neither transfer nor issue any security without being given the go ahead by the Reserve Bank of India. Indian Income Tax Act, 1961 provides the fundamentals in which income-tax is deduced in India. It has been effective since April 1, 1962. Tax levied on all foreign companies depends on various factors which are:

1. Liability which is under the Income Tax Act 1961 Section 5 and 9
2. There is the Double Taxation Avoidance Agreement (DTAA) which is usually between India and the constituent country where the foreign company is from.(Income Tax Act 1961 sec.90)

This company, whose intention is to establish a manufacturing facility in India, its income will be taxed via the business association it has in India. The taxation rate in India varies according to the branch office, project office or the Indian company whose proprietors may either be foreigners or locals. For an Indian company owned by foreigners where the profit is below ten million Indian Rupees, the taxation rate is 30.90% while if it exceeds ten million Indian Rupees it is 33.22%.

If the company decides to have a branch office, and the profit is below ten million Indian Rupees the rate is 41.20% whereas if it is above ten million Indian Rupees the tax rate is fixed at 42.23%. Finally, for a project office where the tax rate for profit that is less than ten million Rupees is 41.20% and on the other hand that for profit more than ten million Indian Rupees is 42.23%.Foreign companies such as project and branch offices are not liable to pay Dividend Distribution Tax.

In addition, India got into an agreement with other countries in the Double Taxation Avoidance Agreement (DTAA) where the tax paid in India is qualified for credit in another country. The Income Tax Act is restricted to only tax the income of a foreign company.

Indian PE is taken as a separate profit venue with regards to foreign companies so as to ensure that profits that come about in the alien entities in India, under the new amendment, foreign companies that receive payments that are taxed following the Indian Tax Act are expected to cite Indian PAN which is the Permanent Account Number and it is under the Indian Tax Act. This company will have to maintain and keep books of accounts in order to determine the profit/loss it has encountered from operating in India. The books of accounts should provide all business transactions that occurred in India and they should also contain respective creditors and debtors associated to the company (Indian Income Tax Act 1961 sec 44 AA).

Repatriation of Earnings

Under the Indian business law, foreign registered companies may open and maintain bank accounts in India whereby they may receive investment funds from the mother company or other sources, nevertheless, the company may only repatriate 75 percent of their net after-tax earnings with the guidelines of the Reserve Bank of India.

Importance of anti-money laundering legislation in India

India is involved in a fight against money laundering which is a situation whereby a person or company uses a legal channel to transfer illegally gotten money so as to conceal the source of that money. Money-laundering takes advantage of loopholes in the government to help try ‘clean’ the ill-gotten money. This usually happens when a person has illegally acquired money and is trying to hide the true source of the money with an intention of managing these monies.

As such, India has laid down various laws to counter money-laundering in the country. Money-laundering takes place in a procedural manner where money is first deposited into a bank or it is used in purchase of goods of a priceless value then it is wired to overseas countries in disguise of being genuine business earnings and this cash is deposited into the abroad banking system and lastly it is integrated where the money-launderers carry out sophisticated web transfers that render tracing of the cash impossible.

The proceeds from the lawful business appear clean. It is therefore vital to implement anti-money laundering laws that would bar the activities of money-laundering from taking place. The major Act that is concerned with dealing in money laundering acts in India is the Prevention of Money Laundering Act 2002 which enforces that one of the obligations of the banks and financial organizations is to check the identity of clients/customers. The act allows freezing and impounding of the returns earned from criminal activity that eventually ends up clean due to money-laundering having occurred.

Money laundering has got various unfavorable effects both to the country’s economy and also the county’s reputation. For this reason India has put up anti-money laundering legislation so as to help fight and avoid the repercussions of money laundering.

These include

• A heightened level of corruption in the country. This would scare off existing and potential investors who do not want to operate in an environment where corruption is prone.
• Money laundering also puts the reputation of banks and other financial institutions at risk because no investor will want to deal with a corrupt financial institution.
• Where money laundering is eminent there develops a lot of tension which leads to speculation and in turn will automatically lead to inflation. Consequently, investors will tend to shy away from an economy that is suffering from high inflation levels.
• A country where money laundering is prone will expose itself to unnecessary supervision by investors who will not want to fall victim to claims of money laundering.
• Where money laundering is eminent, there develops a distortion with the operation of the county’s economy since the money laundering develops a mini-economy which is competing with the country’s national economy.
• Money laundering leads to a deficit in the balance of payments whereby a company engaging in money laundering will clean its money in the country and afterwards repatriate the monies back to their home country.
• Money laundering also leads to weakening of the local currency in the sense that accumulation of the illegally gotten monies will lead to too much money in the economy chasing too few goods.

Money- laundering is a criminal act that hurts the economy of India; it taints the image of the country, discourages foreign investors and causes a variation in the demand of money hence it is fought against by Indian government through the Prevention of Money-Laundering Act 2002. An initiative taken to fight money-laundering is a positive step towards building a strong economically stable county whose potential of attracting foreign investors is high.

Foreign company seeking to invest in India and its compliant to Indian anti-money laundering legislation

A foreign company is a legal entity that is independent and has its own right and it can be comprised of an organization or a group of individuals. A foreign company that has an interest in investing in India ought to comply with certain specified anti-money laundering legislations for it to do business in the country. Firstly, a foreign company is only allowed to carry out specific commercial activities in India which are; to participate in import and the export of products, start consulting firms, offer information technology and development software services in the country and also invest in the airline and shipping industry.

However, they are forbidden to participating in the lottery business, trading in retail, agriculture, gambling and betting and Nidhi business among others. This foreign company should follow regulations imposed against money laundering. In the case where the company is a bank or financial institution it should validate the identity its clientele this is according to PMLA Act 2002.

“The Act imposes certain stringent reporting and verification obligations upon banks, financial institutions and intermediaries. Section 12 of the Act provides that each of the aforementioned institutions shall:

• Maintain a record of all transactions;
• Furnish information of transactions to the Director;
• Verify and maintain the records of the identity all clients. The records referred to in a and c above must be maintained for a period of ten years from the date transactions cease between the clients and the institution.”

Indian Constitution Sec 12

In a situation where the financial institution or banking company has not complied with the legislations according to the constitution and it is thereby discovered by the director after his inquisition into the matter, according to Section 12 a fine of between ten thousand rupees and one lakh for each offence may be imposed on the relevant administration of the company (Cuts, 2006, 26).

In order to curb and prevent money-laundering in accordance to Rules 2005 which gives a concise description of the reporting requirements of both banking companies and financial institutions not forgetting the intermediaries that “Maintenance of Records of Nature and Value of Transactions, the Procedure and Manner of Maintaining and Time for Furnishing Information and Verification and Maintenance of Records of the Identity of the Clients of the Banking Companies, Financial Institutions and Intermediaries.”

Rules 2005

A foreign company interested in investing in India should put into practice the rule of Know Your Customer (KYC) and this is used in identification of customers which should be a very thorough exercise so as to minimize the chances of money-laundering taking place in the company. Particularly in a bank company, the bank policy should be followed and it has a number of basics:

• There is the Customer Acceptance Policy (CAP) – where each and every account must have a specified name hence should not have an anonymous name. A criterion of categorizing the customers has to be put in place, the customer’s residence, clients, financial status and his usual mode of payment. Also a procedure of identifying the customer must be used so as to ascertain that that customer does not have any criminal record or has received a ban from the government or court of law from undertaking in any financial transactions.
• The second bank policy is the Customer Identification Procedure (CIP) which should be updated in at least once in a period of five years in allow risk category while it ought not to be less than once in two years in both a high risk and low risk category. The bank should keep details such as the photograph of the consumer at hand. Foreign Exchange Management Act 1999(FEMA) gives the provision of the required elements that a foreign company operating in India should adhere to and the Foreign Exchange Management (FEM) was formed to assist in the attainment of FEMA’s goals by the Reserve Bank of India.

Protections offered by Indian federal competition law to a foreign investor

The Indian federal Competition law has provided several protections to foreign investors who are willing to invest in the country.”No civil proceedings against banking companies, financial institutions”(Section 14) is one of the protections meaning that banking companies, financial institutions and their workers will not take any liability to civil proceedings against them for providing information under section 12.

The Competitions Act 2002 had an objective of establishing a commission to; encourage and sustain competition among investors, eradicate harmful practices that demeaned competition, make certain there is freedom of trade between investors and protect consumer interests.”The Monopoly and Restrictive Trade Practices Act” (MRTP) was substituted by the Competition Act 2002. One way in which external investors have been protected is through there being a Foreign Investment Promotion Board (FIPB) which is a regulatory body in India.

The Indian government brought into being the foreign investment promotion board which is a venue that attracts and promotes foreign investors into India. This body has the powers to examine and hence consider propositions of investment in India especially those that are not in the existing policies. This board has several purposes which are; clearing of proposals given unto them, creating a relationship with international companies and inviting them to invest in productive ventures, to market, design, and promote exportation and technological upgrade.

The Indian federal competition law enforces compulsory Licensing (CL) apart from preventing the abuse of patents it ensures they do not result to anti-competitive practices. In the Indian constitution, Securities and Exchange Board of India (SEBI) Act 1992 has several functions apparently which protect foreign investors and their interests are as follows:

• Protect the securities of investors and theirs interests and support advancement and regulation of the securities market by introducing measures it deems fit.
• Encouraging the education and training of investors and the intermediaries of security markets.
• Hindering the occurrence of fraudulent and bias trade practices in relation to market securities a matter that would adversely affect foreign investors.

In Section 2 A, where the investors interests are protected, it contains specifics which are; foreign investors are offered protect against issues relating to issuance of capital and the transfer of their securities, the mode in which these matters are conducted and prohibition of any company from issuing a prospectus, offering documents or advertising the soliciting of money from citizens so as to be issued with securities.

Indian federal Competition law has done a tremendous job in protecting foreign investors and according to security and exchange board of India, section 12 A it states, “Prohibition of manipulative and deceptive devices, insider trading:

• Not to use or employ in connection with the issue, purchase or sale of any securities listed or proposed to be listed on recognized stock
• Not to employ device, scheme or artifice to defraud in connection with the issue or dealing in securities listed or proposed to be listed
• Not to engage in any act, practice, course of business which operates or would operate as fraud or deceit in connection with the issue, dealing in securities
• Not to engage in insider trading: while in possession of material or non public information or communicate such information to other persons and/acquire control of any company or securities except with prior permission of board.”

SEBI Section 12 A

These protections offered by the Indian government render how the Competitions Act has affected the country in an exorbitant way whereby it has attracted a huge number of foreign investors to come invest in the country without fear and doubt since the law is well written and their interests are well looked after.

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