Incorporation of Wholly Owned Subsidiary in India | Foreign Company Registration in India

India is among the fastest growing economies of the world with plenty of business opportunities which make it a preferred destination for investment form NRIs, Foreign Nationals and Foreign Companies. There are many ways by which foreign investment can be done in India. One of the most successful and sought after ways is Incorporation of Wholly Owned Subsidiary Company in India.

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Wholly Owned Subsidiary (WoS) Compliances in India

In this article, we shall take you through all the mandatory Wholly Owned Subsidiary (WoS) Compliances that are applicable on a subsidiary company, at different points of time, during the year.

A subsidiary company is any company, where 50% or more of its share capital is owned by a company that is incorporated in another foreign nation. The said foreign company is called the holding company or the parent company. Foreign Subsidiary Companies, being registered in India, are governed by Indian laws, like any other Indian company.

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Mandatory Compliances for a Private Limited Company in India

Although Private Limited Company is the most popular form of starting a business, there are various compliances which are required to be followed once your business is incorporated.

Managing the day to day operations of your business along with complying the corporate laws can be little taxing for any entrepreneur. Hence, it is essential to take help of a professional and also understand such legal requirements to ensure timely fulfilment of compliances, without any levy of interest or penalty.

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Mandatory Compliances for an LLP (Limited Liability Partnership)

All LLPs registered with the Ministry of Corporate Affairs need to file Annual Returns and Statement of Accounts for every Financial Year. It is mandatory for a LLP to file a return irrespective of whether it has done any business. There are three mandatory compliance requirements to be followed by LLPs.

  • Filing of Annual Return
  • Filing of Statement of the Accounts or Financial Statements
  • Filing of Income Tax Returns

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Major change in TDS provisions w.e.f 01st July’2021 – Section 206AB

Finance Act 2021 introduced section 206AB to the Income Tax Act which has major implications on existing TDS provisions and rates. The idea behind this provision is to extract Tax at source from persons who are not filing their IT Returns, thereby making the businesses more responsible towards filing their returns regularly.

Applicability:

Section 206AB states that TDS on any payment other than on salary has to be deducted at a higher rate in case the recipient or deductee,

  • has not filed the returns of income (ITR) for the previous two financial years for which the time limit for filing ITR has expired, and
  • the aggregate of tax deducted at source and tax collected at source in his case is Rupees Fifty Thousand (Rs. 50,000) or more in each of these two previous years.

The rate at which TDS will be required to be deducted is higher of the following:

(i) at twice the rate specified in the relevant provision of the Act; or

(ii) at twice the rate or rates in force; or

(iii) at the rate of five per cent.

Question: How to check whether the deductee/recipient has filed the ITR for the previous two financial years and their TDS exceeds Rs 50,000/- in each of the two previous financial years?

  • The Govt. has come up with a utility where every person can check if their deductee/payee is a specified person on whom higher rate of TDS is applicable. The detailed procedure is given under Notification No. 01 of 2021 issued by CBDT Directorate of income tax(systems). It is also available on the reporting portal of the IT Deptt. (https://report.insight.gov.in).
  • Alternatively, you can also take a declaration or an undertaking from all the persons for which you are liable to deduct Tax in respect of the same. Please note that a declaration or undertaking is not a substitute for checking if the person is a specified person from the Govt. prescribed utility.

Exclusions: Section 206AB is not applicable on the following:

  • Section 192 – Payment for Salary to an employee
  • Section 192A – Payment of accumulated balance due to an employee
  • Section 194B – Winnings from lottery or crossword puzzle
  • Section 194BB – Winning from a horse race
  • Section 194LBC – Income in respect of investment in securitisation trust
  • Section 194N – Payments of certain amount/amounts in cash

Besides, the provisions of this section do not apply to a non-resident who does not have a permanent establishment in India. Permanent establishment for this purpose includes a fixed place of business where the enterprise’s business is carried out wholly or partially.

Conclusion:

It should be noted that if a person does not furnish PAN, then tax shall be deducted or collected at 20 per cent or rates applicable as per this section, whichever is higher.

Budget 2021 has introduced similar provisions in TCS where higher rate of TCS is to be collected from ‘specified person’ who has not filed ITR of two previous financial years and total TDS and TCS exceeds Rs. 50,000/- vide section 206CCA.