Incorporation of Company with Foreign Director

Narendra Kumar

20 Jun, 2019

A company is an artificial person registered under the Companies Act, 2013 or any other previous company law which is managed and controlled by the Directors /officers of the company. A director can be resident director as well as foreign director. In company number of persons contribute the amount in terms of share capital and invest the capital for some specific purpose. It is formed by a single or a group of persons to achieve the objective of the company and perform all the activities efficiently and effectively.

In this article, we will discuss about the company registration with foreign directors;

Who is the Director?

A Director is a person acting on behalf of the company, as the company is a legal entity but does not have a physical existence. There is no exhaustive list defining the duties of the directors. If the director have interest in the transaction, a proper disclosure is required to be given by the interested director. Directors are the brain of the company and take all the decision regarding the management of the Company.

Directors act as an agent as well as the trustee of the company. They act as the supreme authority of the company who controls and manages the affairs of the company.

Powers of Directors

A number of powers are there for the directors of the company and has to meet out the following duties –

• To convene all the meeting (Board, Annual General Meeting and Extraordinary General Meeting).
• Appointment of the Auditor of the company (First Auditor, Subsequent Auditor, and Cost Auditor).
• Preparation all the Financial Statement, Company Report and Board report.
• Avoids conflicts of interest with the Company.
• To exercise reasonable care and due diligence for the smooth functioning of the company.

Foreign National as a Director of the Company

A foreigner or NRI can be executive and Non-executive director whether Public or Private Company. Foreign Directors have the same duties as Indian Director.

Foreign national can be appointed as the director as any of the below-mentioned designation –

Criteria to become Foreign Director

Following criteria required to be fulfilled by a person to become a Director (Including Foreign Nationals) –

• DIN Application

A foreign national, shall make an application for obtaining DIN in electronic Form DIR-3 along with the fees of Rs 500 as prescribed by the Government. An electronic system of the Central Government is there to facilitate the submission of the application for allotment of DIN through MCA Portal.

• Process of DIN Application
  • Before appointed as a director, every foreign national (Applicant) shall be allotted with a Director Identification Number (DIN)
  • He shall give a declaration that he is not disqualified from becoming a Director under this Act and shall also furnish his DIN.
  • The foreign national appointed as a Director shall not act as a Director unless he gives his written consent to act as director in Form DIR-2. Consent is file with the Registrar within 30 days of his appointment.

• DIR-3 -Documentation Required
  • Photograph
  • Identity Proof and Proof of residential address
  • Resolution regarding Proposal to appoint a foreign Director.
  • Details of Passport.

Documents in case of foreign national director should be certified by the Indian embassy/Notary in the home country.

If a foreign person possesses the qualification, skills, knowledge, experience in 1 or more fields of Law, Finance, sales, marketing, administration, research and technical field which related to Company’s business can be appointed as Independent Director.

A foreign national intends to become the managing director or full-time director must fulfill the criteria of the resident of India and he shall select the nationality as declared in the passport.

Compliances in FEMA Act for Foreign Director

A foreign national has no restriction to become a director in an Indian Company. He can hold and maintain a foreign currency account with the bank outside India and valid employment visa. He is eligible for remuneration, sitting fees, commission like Indian Directors. Proper Disclosure and Declaration is required to be given by the director.

Taxability of Income of Foreign Director under Income Tax Act 1961

When a Foreign national earns in India as director of the Indian Company, he is subject to Income under Income-Tax Act. TDS is deducted from their remuneration/Commission. As per Income-tax Act, if a non-resident who is a director in an Indian company having a financial transaction of Rs 2,50,000 or more in a financial year is required to obtain a PAN Card compulsorily.

Checklist for Company Registration with Foreign Directors

Registration of a company with foreign directors requires following information and documentation mentioned below –

1. Details of the proposed directors along with the documents self-attested and Passport is required in case of foreign directors duly notarized and apostle in the home country. In case of non-availability of notary and apostle in the Home Country, it should be duly notarized in India.
2. Criteria in case of Director already holding a DIN – Specification whether the DIN has been acquired as per the Company law and details of directorship in other company.
3. Shareholding Pattern – In case of foreign director also holding shares in the company, specification is required to be given.

Conclusion

Registration of the company with foreign directors is not restricted, however, a person has to comply with the stipulated conditions. Foreign National can be both an executive and non-executive director. The procedure for appointment of the foreign director is as same as the Indian director with additional documentation and compliance like notary and Apostle of documents are necessary to validate the documents by Embassy.

Suggested Reads:

• Appointment of Directors Under Companies Act 2013

• Concept of Women Directors under Companies Act 2013