List of Startup Issues resolved Stay-in-India Checklist

iSPIRT has taken up a checklist of issues to be resolved for helping Startups stop relocating themselves abroad and stay in India, popularly called as Stay-In-India Checklist. These were taken up with Department of Industrial Policy and Promotion (DIPP) under Ministry of Commerce, Government of India. DIPP is also the administrative department for Startup India Policy.

There are a number of issues that have been resolved, till today.

A list of eight issues that have been resolved until now that directly effects the Startups on company law or their promotion and ease of doing business are given below.

1.  IPR Registration

A scheme for promoting IPR awareness has been brought out by DIPP with an objective of promoting IP awareness, conduct workshops and training to enable an innovation-driven environment. The details of the scheme are given on DIPP site like here.

2.  Conversion process of LLP into company

Conversion of an LLP into a company was allowed with an amendment to Section 366 of the Companies Act, 2013, as notified on 1 April 2014. This has further been simplified by bringing down threshold of member from 7 members to 2 members. Please refer to the amendment in section 266 of THE COMPANIES (AMENDMENT) ACT, 2017, published on 3rd January 2018. Refer the link http://www.mca.gov.in/Ministry/pdf/CAAct2017_05012018.pdf

3.  Incorporation process to be simplified

Rule 38 of Companies (Incorporation) Rules, 2014 provides for SPICe (Simplified Proforma for Incorporating Company electronically) form for incorporating a company. This is considered to be a welcome step as this simplified procedure would save the time of incorporation of a company.

The Fourth amendment rules notified on 1st October 2016 and Fifth amendment notified on 29 Dec 2016 came in to force from 1st January 2017 provides for much simpler SPICe form, now known as E-Form SPICe (Form INC-32).

SPICe now integrates into single application  – reservation of name, allotment of Directors Identification Number (DIN). It can be filled without having DIN already, by maximum three directors.

The company is allotted Permanent Account Number (PAN) and Tax Deduction Account Number (TAN) and Certificate of Incorporation (CIN) on completion of form and processing by ROC. The PAN number is printed on CIN.

For details visit MCA FAQ at http://www.mca.gov.in/MinistryV2/spice_faqs.html

4. Provisions permitting outbound or Cross-Border

MCA has notified Section 234 of the Companies Act 2013 (2013 Act) which permits cross-border mergers with effect from 13 April 2017. MCA has also notified relating amendments to the Companies (Compromises, Arrangements and Amalgamations) Rules 2016 (Merger Rules) by inserting a new Rule 25A to be effective on and from 13 April 2017.

The provisions now permit cross-border mergers both ways.

  1. Inbound – Foreign company merging into Indian company
  2. Outbound – Indian company merge into a foreign company.

This will help the intra-group situations and also open opportunities to raise capital, diversify ownership base and achieve other strategic objectives

5.  Regulation on Insider trading on private companies

Section 195 of the Companies Act, 2013 has been omitted by way of Companies (Amendment) Act, 2017 as it was deemed that the SEBI regulations on the same are wide enough to cover such instances. Currently, there is no provision under the Companies Act, 2013 which deals with insider trading in private companies

 6. Regulations governing TDS to be rationalized

Thresholds limits for TDS deductions under various sections has been increased and also the rate of tax rationalized in some cases in the Budget 2016. We may see some more changes coming in future.

7.  Single window agency for closure of failed startups

The Insolvency and Bankruptcy Code 2016, is a single legislation clubbing together the processes for resolution or liquidation of corporate persons.

Sec 12 of the Insolvency and Bankruptcy Code, 2016 provides for closure of failed startups within 180 days, which can be extended by another 90 days.

This provision removes the hindrance of long drawn procedures and timelines when it comes to the closure of such failed startups by capping the process at 180 days.

8. External commercial borrowing guidelines to be relaxed

A startup can borrow up to US$ 3 million or equivalent per financial year under ECB framework, either in Indian rupee or any convertible foreign currency or a combination of both. In case of borrowing in INR, the non-resident lender should mobilize INR through swaps/outright sale undertaken through an AD Category-I bank in India.

We have already covered this announcement in detail on our blog at http://pn.ispirt.in/external-commercial-borrowing-norms-for-startup-ecb/

iSPIRT will be further pursuing with DIPP and other Departments and Ministries of Govt. of India on the additional items in Ease of Doing Business for starts ups and furthering its agenda of Stay in India.