As per definition given under Section 2 (42) of the Companies
Act, 2013;
"foreign company" means any
company or body corporate incorporated outside India which,—
(a) has a place of
business in India whether by itself or through an agent, physically or through
electronic mode; and
(b) conducts any
business activity in India in any other manner.
Overview
of Some Important Provisions related to Foreign Company’s under the Companies
Act, 2013:
Sl.
No.
|
Provisions(s)
|
Particulars
of the Provision(s)
|
1
|
Section
2(42)
|
Definition
of Foreign Company
|
2
|
Section
33
|
Issue
of Application Forms for Securities
|
3
|
Section
34
|
Criminal
Liability for Mis-statements in Prospectus
|
4
|
Section
35
|
Civil
Liability for Mis-statements in Prospectus
|
5
|
Section
36
|
Punishment
for Fraudulently Inducing Persons to Invest Money
|
6
|
Section
40
|
Securities to be Dealt with
in Stock Exchanges
|
7
|
Section
41
|
Global Depository Receipt
|
8
|
Section
71
|
Debentures
|
9
|
Section
88
|
Register of Members, etc.
|
10
|
Section
92
|
Annual
Return
|
11
|
Section
128
|
Books
of Account, etc., to be kept by Company
|
12
|
Section
134
|
Financial
Statement, Board’s Report, etc
|
13
|
Section
228
|
Investigation,
etc., of Foreign Companies
|
14
|
Section
234
|
Merger
or Amalgamation of Company with Foreign Company
|
15
|
Section
376
|
Power
to Wind Up Foreign Companies, Although Dissolved
|
16
|
Section
379
|
Application
of Act to Foreign Companies.
|
17
|
Section
380
|
Documents,
etc., to be Delivered to Registrar by Foreign Companies
|
18
|
Section
381
|
Accounts
of Foreign Company
|
19
|
Section
382
|
Display
of Name, etc., of Foreign Company.
|
20
|
Section
383
|
Service
on Foreign Company
|
21
|
Section
384
|
Debentures,
Annual Return, Registration of Charges, Books of Account and Their Inspection
|
22
|
Section
385
|
Fee
for Registration of Documents
|
23
|
Section
386
|
Interpretation
(Certified, Director and place of business)
|
24
|
Section
388
|
Provisions
as to Expert’s Consent and Allotment
|
25
|
Section
389
|
Registration
of Prospectus
|
26
|
Section
391
|
Application
of Sections 34 to 36 and Chapter XX
|
27
|
Section
392
|
Punishment
for Contravention
|
28
|
Section
393
|
Company's
Failure to Comply with Provisions of This Chapter Not to Affect Validity of
Contracts, etc.
|
29
|
Section
405
|
Power
of Central Government to Direct Companies to Furnish Information or
Statistics.
|
30
|
Section
447
|
CHAPTER
XXIX
MISCELLANEOUS
Punishment
for Fraud.
|
31
|
Section
592
|
Documents,
Etc., To Be Delivered To Registrar By Foreign Companies Carrying On Business
In India
|
32
|
Chapter
VI
|
Registration
of Charges
|
33
|
Chapter
XIV
|
Inspection
Inquiry and Investigations
|
34
|
Section
196 & 197
Schedule
V
|
Conditions
To Be Fulfilled For The Appointment Of A Managing Or Whole-Time Director Or A
Manager Without The Approval Of The Central Government Appointments
|
Sections 380 to 386 (both inclusive) and sections 392 and 393
shall apply to all foreign companies, Provided that the Central
Government may, by Order published in the Official Gazette, exempt any class of
foreign companies, specified in the Order, from any of the provisions of
sections 380 to 386 and sections 392 and 393 and a copy of every such Order
shall, as soon as may be after it is made, be laid before both Houses of
Parliament.
Analysis
of ROC forms specifically for foreign company:
(Ministry of
Corporate Affairs / Registrar of Companies)
1.
eForm FC-1 (Information to be filed by foreign company)
Law(s) and Regulations:
Section 380(1) (a)
to (h) and Rule 3(3) of the Companies (Registration of Foreign Companies)
Rules, 2014
Filing requirements:
A foreign company
shall file the particulars of the principal place of business in
e-form FC-1 within 30 days of establishment of place of business in India
alongwith the required documents to RoC, Delhi.
The Registrar of
the corresponding state shall have access to these documents filed with the
RoC, Delhi.
Stamp Duty Payment:
Ø
Stamp
duty on eForm FC-1 can be paid electronically through the MCA portal.
Ø
Payment
of stamp duty electronically through MCA portal is mandatory in respect of the
states which have authorized the Central Government to collect stamp duty on
their behalf.
Ø
Now
eStamp duty payment is to be done online through MCA portal for all the states.
Mandatory Attachment(s)
ü
Certified
copy of the charter, statutes, or memorandum and articles of the company or
other instrument constituting or defining the constitution of the company
(Mandatory).
ü
List of directors and secretary of
the foreign company (Mandatory).
ü
Power of attorney or board
resolution in favor of the authorized representative(s) (Mandatory).
ü
Reserve bank of India approval
letter (It is mandatory to attach attested copy of such approval).
Details of other places of business in India (if any)
ü
It
is mandatory to enter the date of closure of such place of business and also
FCRN of such office
Particulars of place(s) of business in India established on any
earlier occasion(s) other than above (if any)
ü Maximum seven of
such offices can be entered. If more than seven then details can be given in
necessary attachment(s).
2.
eForm FC-2 (Return of alteration in the documents filed for
registration by foreign company)
Law(s) and Regulations:
Section 380(3) of
the Companies Act, 2013 and Rule 3(4) of the Companies (Registration of Foreign
Companies) Rules, 2014
Filing requirements:
Every foreign
company on alterations in the charter or statute or any other instrument
governing the company, alterations in the particulars of
Director/Secretaries of the foreign company , any change in the
registered or principal office of the company in the country of incorporation,
any change in the particulars of authorized representative(s) of the
company and any change in other places of business in India of the company,
has to file eform FC-2 within 30 days of the alterations made.
This eForm is
required to be filed with Registrar of Companies and a copy is routed to
concerned RoC of the respective state by the system. An alert is generated at
the concerned RoC to inform of the filing done at RoC, Delhi.
Mandatory Attachment(s)
Copy of approval
letter (it is mandatory if any approval is required for such alteration).
3.
eForm FC-3 (Annual accounts along with the list of all principal
places of business in India established by foreign company)
Law(s) and Regulations:
Section 381 of the
Companies Act, 2013 and Rule 4, 5 and 6 of Companies (Registration of Foreign
Companies) Rules, 2014
Filing requirements:
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 eForm
number FC-3. It shall also prepare and file a list of places of
business in India established by a foreign company as on date of the
balance sheet in the same form.
However, the
Registrar can extend the said period to not more than three months on
application made in writing.
Mandatory Attachment(s)
ü
Copy
of latest consolidated financial statement of parent company (Mandatory).
ü
Copy
of balance sheet and profit and loss account duly authenticated under section
381(1) (Mandatory)
ü
In
case the document is in any other language other than English, certified translation
in English language is mandatory
4.
eForm FC-4 (Annual Return of a Foreign Company)
Law(s) and Regulations:
Section 384(2) of
the Companies Act 2013 and Rule 7 of Companies (Registration of Foreign
Companies) Rules, 2014
Filing requirements:
Every foreign
company shall prepare and file annual return of the company in eForm FC-4
within 60 days from the close of financial year.
Mandatory Attachment(s)
ü
Details
of Promoters, Directors and Key managerial personnel and changes therein since
close of previous financial year. (Mandatory)
ü
Details
of directors and key managerial personnel and their remuneration. (Mandatory)
ü
Details
of the meeting of the members or class thereof, board and its various
committees along with attendance details. (Mandatory)
ü
Particulars
of members and debenture holders along with changes therein since the close of
previous financial year. (Mandatory)
ü
Particulars
of Holding, subsidiary and associate companies and firms. (Mandatory in case
number of entities prescribed at serial no 6 is more than seven)
Thanks and Regards
CS Lalit Rajput
+91 8802581290
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